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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: May 19, 1999
SPARTAN STORES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Commission File Number: 33-41791
MICHIGAN 38-0593940
(State or Other Jurisdiction) (I.R.S. Employer
of Incorporation or Organization) Identification No.)
850 76TH STREET, S.W.
P.O. BOX 8700
GRAND RAPIDS, MICHIGAN 49518
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (616) 878-2000
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On May 19, 1999, Valuland, Inc. ("Valuland"), a wholly-owned subsidiary of
Spartan Stores, Inc. (the "Company"), consummated the purchase of certain
equipment, inventory and other assets of Glen's Market, Inc., Catt's Realty
Co. and Glen's Pharmacy, Inc. ("Glen's"). Glen's operated 23 retail
grocery stores, four pharmacies and a distribution center, all of which are
located primarily in Northern Michigan. The Company intends to use the
equipment and other physical property acquired from Glen's to continue to
operate the Glen's retail grocery, pharmacy and distribution business.
Prior to the acquisition, Glen's was a shareholder-customer of the Company.
Glen A. Catt, the President and Chief Executive Officer of Glen's, also
served on the Board of Directors of the Company until his resignation in
April 1999.
The purchase price paid at closing consisted of approximately $88.1 million
in cash, plus the payment in cash of approximately $4.5 million in working
capital liabilities and the assumption of approximately $8.5 million in
other operating liabilities. Pursuant to the terms of the asset purchase
agreement, the purchase price is subject to certain adjustments based upon
a closing balance sheet to be prepared within 30 days after the closing.
Among other adjustments, the purchase price will be reduced if working
capital liabilities exceed certain stated maximums or if either the current
assets or the cash and cash equivalents are less than certain stated
minimums. The purchase price also will be increased or decreased, as
applicable, to the extent that inventory values are more or less than
certain stated amounts. In addition, the Company purchased the assets with
respect to one Glen's store subject to an existing purchase option held by
another wholesale food distributor. If this distributor exercises its
purchase option as the Company anticipates, the Company will sell these
assets to the distributor for their fair market value as determined by
independent appraisal. The Company is in the process of preparing the
closing balance sheet, determining the closing inventories and completing
the outside appraisal of the store subject to the purchase option.
Accordingly, the final adjusted purchase price has not yet been determined.
The acquisition will be accounted for as a purchase. Accordingly, the
purchase price will be allocated to assets acquired and liabilities assumed
based upon their relative fair market values. The determination of the
purchase price paid by the Company resulted from extensive negotiations
with Glen's.
The Company financed the acquisition of Glen's primarily through the
Company's senior secured bank credit agreement discussed in Item 5 of this
Report.
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ITEM 5. OTHER EVENTS
In addition to the acquisition of Glen's discussed in Item 2 of this
Report, the Company recently consummated two other acquisitions. On
January 4, 1999, Valuland acquired certain assets and assumed certain
liabilities of Ashcraft's Market, Inc., an operator of eight retail grocery
stores located primarily in mid-Michigan. On March 29, 1999, Valuland
acquired all the issued and outstanding shares of Family Fare, Inc., Family
Fare Management Services, Inc. and Family Fare Trucking, Inc. ("Family
Fare"). Family Fare is an operator of thirteen retail grocery stores, a
bakery, a warehouse facility and a transportation business located
primarily in Western Michigan.
Each of these acquisitions will be accounted for as a purchase.
Accordingly, the purchase price will be allocated to assets acquired and
liabilities assumed based upon their relative fair market values. The
determination of the purchase price paid by the Company in each acquisition
resulted from extensive negotiations with the sellers. The Company
financed the acquisition of Ashcraft's primarily through the Company's then
current credit facilities and financed the acquisition of Family Fare
primarily through the Company's senior secured bank credit agreement
described below.
On March 18, 1999, the Company entered into a senior secured bank credit
agreement with ABN AMRO Bank N.V. ("ABN AMRO"), Michigan National Bank and
NBD Bank. This credit agreement provides $425 million in senior secured
credit facilities to be used to refinance existing debt, support retail
store acquisitions, fund working capital and support other general
corporate needs. The credit facilities consist of (a) a Revolving Credit
Facility in the amount of $100 million with a term of six years, (b) a Term
Loan A in the amount of $100 million with a term of six years, (c) an
Acquisition Facility in the amount of $75 million with a term of seven
years and (d) a Term Loan B in the amount of $150 million with a term of
eight years.
For the first six months after the closing date, the interest rate payable
by the Company on amounts borrowed under the Revolving Credit Facility or
the Term Loan A will be, at the Company's option, either (a) the higher of
the prime rate plus 1.25% per annum or the federal funds rate plus 1.75%
per annum or (b) the Eurodollar Rate plus 2.5% per annum. After six
months, the interest rate payable by the Company on amounts borrowed under
the Revolving Credit Facility or the Term Loan A will be, at the Company's
option, either (a) the higher of the prime rate plus a rate per annum
ranging from .25% to 1.25%, depending upon the Company's leverage ratio, or
the federal funds rate plus a rate per annum ranging from .75% to 1.75%,
depending upon the Company's leverage ratio or (b) the Eurodollar Rate plus
a rate per annum ranging from 1.5% to 2.5%, depending upon the Company's
leverage ratio.
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For the first six months after the closing date, the interest rate payable
by the Company on amounts borrowed under the Acquisition Facility will be,
at the Company's option, either (a) the higher of the prime rate plus 1.75%
per annum or the federal funds rate plus 2.25% per annum or (b) the
Eurodollar Rate plus 3.00% per annum. After six months, the interest rate
payable by the Company on amounts borrowed under the Acquisition Facility
will be, at the Company's option, either (a) the higher of the prime rate
plus a rate per annum ranging from .75% to 1.75%, depending upon the
Company's leverage ratio, or the federal funds rate plus a rate per annum
ranging from 1.25% to 2.25%, depending upon the Company's leverage ratio or
(b) the Eurodollar Rate plus a rate per annum ranging from 2% to 3%,
depending upon the Company's leverage ratio.
The interest rate payable by the Company on amounts borrowed under the Term
Loan B will be, at the Company's option, either (a) the higher of the prime
rate plus 2.00% per annum or the federal funds rate plus 2.50% per annum or
(b) the Eurodollar Rate plus 3.25% per annum.
The Eurodollar Rate is the rate offered by ABN AMRO and Michigan National
Bank in the London interbank market for deposits in the same amount and
maturity as their portion of the loan to the Company under the credit
facilities.
The credit facilities are secured by a first perfected security interest in
and lien on the real and personal property assets of the Company and its
subsidiaries and all of the outstanding capital stock of the Company's
subsidiaries.
As of the date of filing of this Report, the Company has borrowed
approximately $250 million under the credit facilities.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) & (b) Financial Statements of Business Acquired and Pro Forma Financial
Information
Based upon the most recent annual consolidated financial statements to be
contained in the Company's Annual Report on Form 10-K for the fiscal year
ended March 27, 1999, which the Company expects to file with the Securities
and Exchange Commission by no later than sixty days after the date of
filing this Report, the Company does not expect to file financial
statements or related pro forma financial information with respect to the
businesses acquired.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Date: June 3, 1999 SPARTAN STORES, INC.
(Registrant)
By /S/CHARLES B. FOSNAUGH
Charles B. Fosnaugh
Vice President Development
(Principal Financial Officer
and duly authorized signatory for
Registrant)
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EXHIBIT INDEX
EXHIBIT
NUMBER DOCUMENT
2.1 Asset Purchase Agreement dated March 5, 1999 by and between
Glen's Market, Inc., Catt's Realty Co. and Glen's Pharmacy, Inc.
as Sellers and Valuland, Inc. as Buyer and joined in by certain
shareholders of Sellers as the Shareholders and by Universal Land
Company as the Real Estate Company and by Spartan Stores, Inc. as
the Parent of the Buyer. Schedules and similar attachments
omitted.<F*>
2.2 Amendment to Asset Purchase Agreement made as of May 19, 1999, by
and between Valuland, Inc. and Glen's Market, Inc., Catt's Realty
Co. and Glen's Pharmacy, Inc. Schedules and similar attachments
omitted.<F*>
10 Credit Agreement dated as of March 18, 1999 among Spartan Stores,
Inc., ABN AMRO Bank N.V., as Arranger, Syndication Agent and
Collateral Agent, Michigan National Bank, as Co-Arranger and
Administrative Agent, and NBD Bank, as Document Agent.
<F*>Registrant agrees to furnish supplementally to the
Commission, upon request, a copy of the omitted schedules and
similar attachments.
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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
by and between
GLEN'S MARKET, INC.,
CATT'S REALTY CO.
and
GLEN'S PHARMACY, INC.
as Sellers
and
VALULAND, INC.
as Buyer
and joined in by
certain shareholders of Sellers
as the Shareholders
and by
UNIVERSAL LAND COMPANY
as the Real Estate Company
and by
SPARTAN STORES, INC.
as the Parent of Buyer
MARCH 5, 1999
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TABLE OF CONTENTS
PAGE
ARTICLE 1 - PRINCIPAL TRANSACTION. . . . . . . . . . . . . . . . . . . . .1
Section 1.1. Sale and Purchase of Assets. . . . . . . . . . . . . .1
Section 1.2. Excluded Assets. . . . . . . . . . . . . . . . . . . .3
Section 1.3. Purchase Price . . . . . . . . . . . . . . . . . . . .4
Section 1.4. Closing Balance Sheet and Inventory Valuation. . . . .5
Section 1.5. Purchase Price Adjustments . . . . . . . . . . . . . .5
Section 1.6. Closing. . . . . . . . . . . . . . . . . . . . . . . .7
Section 1.7. Deliveries at Closing. . . . . . . . . . . . . . . . .7
Section 1.8. Allocation of Purchase Price . . . . . . . . . . . . .8
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
OF SELLERS, SHAREHOLDERS AND REAL ESTATE COMPANY . . . . . . . . . . . . .8
Section 2.1. Disclosure Schedule. . . . . . . . . . . . . . . . . .8
Section 2.2. Organization and Good Standing . . . . . . . . . . . .9
Section 2.3. Financial Statements . . . . . . . . . . . . . . . . .9
Section 2.4. Books and Records. . . . . . . . . . . . . . . . . . .9
Section 2.5. No Undisclosed Liabilities . . . . . . . . . . . . . .9
Section 2.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.7. No Material Adverse Change; Absence of Restricted
Events . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.8. Employees; Labor Relations . . . . . . . . . . . . . 10
Section 2.9. Employee Benefit Plans . . . . . . . . . . . . . . . 11
Section 2.10. Title to Properties. . . . . . . . . . . . . . . . . 12
Section 2.11. Personal Property. . . . . . . . . . . . . . . . . . 12
Section 2.12. Real Property. . . . . . . . . . . . . . . . . . . . 12
Section 2.13. Condition and Sufficiency of Assets. . . . . . . . . 13
Section 2.14. Accounts Receivable. . . . . . . . . . . . . . . . . 13
Section 2.15. Inventory. . . . . . . . . . . . . . . . . . . . . . 13
Section 2.16. Litigation . . . . . . . . . . . . . . . . . . . . . 13
Section 2.17. Authorization and Enforceability; No Conflict with
Other Instruments or Proceedings . . . . . . . . . . 14
Section 2.18. Contracts. . . . . . . . . . . . . . . . . . . . . . 14
Section 2.19. Intellectual Property Assets . . . . . . . . . . . . 15
Section 2.20. Insurance. . . . . . . . . . . . . . . . . . . . . . 15
Section 2.21. No Illegal Payments. . . . . . . . . . . . . . . . . 15
Section 2.22. Product and Service Warranties and Liabilities . . . 15
Section 2.23. Certain Relationships. . . . . . . . . . . . . . . . 16
Section 2.24. Permits and Licenses; Compliance with Legal
Requirements . . . . . . . . . . . . . . . . . . . . 16
Section 2.25. No Broker's Fees . . . . . . . . . . . . . . . . . . 16
Section 2.26. Year 2000 Compliance . . . . . . . . . . . . . . . . 16
Section 2.27. Environmental Matters. . . . . . . . . . . . . . . . 17
Section 2.28. Accuracy of Statements . . . . . . . . . . . . . . . 17
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PAGE
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF BUYER. . . . . . . . . . . 18
Section 3.1. Organization and Standing of Buyer . . . . . . . . . 18
Section 3.2. Authorization and Enforceability . . . . . . . . . . 18
Section 3.3. No Broker's Fees . . . . . . . . . . . . . . . . . . 18
Section 3.4. No Conflict with Other Instruments or Proceedings. . 18
ARTICLE 4 - COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . . . 18
Section 4.1. Conduct Pending the Closing. . . . . . . . . . . . . 18
Section 4.2. Access and Investigation by Buyer. . . . . . . . . . 19
Section 4.3. Employees. . . . . . . . . . . . . . . . . . . . . . 20
Section 4.4. Best Efforts . . . . . . . . . . . . . . . . . . . . 20
Section 4.5. Delivery of Property Received After Closing. . . . . 21
Section 4.6. Exclusive Dealing. . . . . . . . . . . . . . . . . . 21
Section 4.7. Non-Compete. . . . . . . . . . . . . . . . . . . . . 21
Section 4.8. Noncompetition Agreements. . . . . . . . . . . . . . 22
Section 4.9. Bulk Sales . . . . . . . . . . . . . . . . . . . . . 22
Section 4.10. Services Agreement . . . . . . . . . . . . . . . . . 22
Section 4.11. New Real Property Leases . . . . . . . . . . . . . . 22
Section 4.12. Shared Expenses. . . . . . . . . . . . . . . . . . . 22
Section 4.13. MESC Rating. . . . . . . . . . . . . . . . . . . . . 22
Section 4.14. Roundy's Stores. . . . . . . . . . . . . . . . . . . 23
Section 4.15. Cooperation. . . . . . . . . . . . . . . . . . . . . 23
Section 4.16. Confidentiality. . . . . . . . . . . . . . . . . . . 23
ARTICLE 5 - CONDITIONS TO OBLIGATION TO CLOSE. . . . . . . . . . . . . . 24
Section 5.1. Conditions to Obligation of Buyer. . . . . . . . . . 24
Section 5.2. Conditions to Obligation of Sellers. . . . . . . . . 25
ARTICLE 6 - TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.1. Termination Events . . . . . . . . . . . . . . . . . 27
Section 6.2. Effect of Termination. . . . . . . . . . . . . . . . 27
ARTICLE 7 - INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.1. Indemnification and Reimbursement by Sellers,
Shareholders and Real Estate Company . . . . . . . . 28
Section 7.2. Indemnification and Reimbursement by Buyer . . . . . 28
Section 7.3. Indemnification Procedures . . . . . . . . . . . . . 29
Section 7.4. Limitations on Indemnification.. . . . . . . . . . . 30
Section 7.5. Exclusive Remedy.. . . . . . . . . . . . . . . . . . 31
ARTICLE 8 - DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 9 - GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 9.1. Survival of Representations, Warranties, Covenants
and Agreements . . . . . . . . . . . . . . . . . . . 41
Section 9.2. Binding Effect; Benefits; Assignment . . . . . . . . 41
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PAGE
Section 9.3. Entire Agreement . . . . . . . . . . . . . . . . . . 41
Section 9.4. Amendment and Waiver . . . . . . . . . . . . . . . . 41
Section 9.5. Governing Law; Venue.. . . . . . . . . . . . . . . . 42
Section 9.6. Public Disclosure. . . . . . . . . . . . . . . . . . 42
Section 9.7. Notices. . . . . . . . . . . . . . . . . . . . . . . 42
Section 9.8. Counterparts . . . . . . . . . . . . . . . . . . . . 43
Section 9.9. Expenses . . . . . . . . . . . . . . . . . . . . . . 43
Section 9.10. Force Majeure. . . . . . . . . . . . . . . . . . . . 43
Section 9.11. Severability . . . . . . . . . . . . . . . . . . . . 44
Section 9.12. Headings; Construction; Time of Essence. . . . . . . 44
Section 9.13. Guaranty of Parent . . . . . . . . . . . . . . . . . 44
Section 9.14. Shareholder Approval . . . . . . . . . . . . . . . . 44
Section 9.15. Parent Stock Redemption. . . . . . . . . . . . . . . 44
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EXHIBITS
Exhibit A--Business Locations
Exhibit B--Equipment, Vehicles and Other Personal Property
Exhibit C--Existing Real Property Leases
Exhibit D--Excluded Assets
Exhibit E--Assumed Liabilities
Exhibit F--Excluded Liabilities
Exhibit G--Inventory Valuation Method
Exhibit H--Purchase Price Allocation
Exhibit I--Accrued Vacation
Exhibit J--Noncompetition Agreement
Exhibit K--New Real Property Leases
Exhibit L--Roundy's Supply Agreements
Exhibit M--SUPERVALU Supply Agreement
DISCLOSURE SCHEDULE
Schedule 2.2--Organization and Standing of Sellers
Schedule 2.3--Financial Statements
Schedule 2.5--No Undisclosed Liabilities
Schedule 2.6--Taxes
Schedule 2.7--No Material Adverse Change; Absence of Restricted Events
Schedule 2.8--Employee Relations
Schedule 2.9--Employee Benefit Plans
Schedule 2.10--Title to Properties; Encumbrances
Schedule 2.11--Personal Property
Schedule 2.12--Real Property
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Schedule 2.13--Condition and Sufficiency of Assets
Schedule 2.16--Litigation
Schedule 2.17--Authorization and Enforceability; No Conflict
Schedule 2.18--Contracts
Schedule 2.19--Intellectual Property Assets
Schedule 2.20--Insurance
Schedule 2.22--Product Warranties and Liabilities
Schedule 2.23--Certain Relationships
Schedule 2.24--Permits and Licenses; Compliance with Law
Schedule 2.25--Sellers' Broker's Fees
Schedule 2.27--Environmental Matters
Schedule 3.3--Buyer's Broker's Fees
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("AGREEMENT") is made as of March
4, 1999 by and between Valuland, Inc., a Michigan corporation ("BUYER") and
Glen's Market, Inc. ("GLEN'S"), Catt's Realty Co. ("CATT'S") and Glen's
Pharmacy, Inc. ("GLENS PHARMACY") (each, a "SELLER," and, collectively, the
"SELLERS"). This Agreement is joined in by the undersigned shareholders of
Sellers (each, a "SHAREHOLDER", and, collectively, the "SHAREHOLDERS"); by
Universal Land Company, a Michigan corporation, ("REAL ESTATE COMPANY");
and by Spartan Stores, Inc., the parent corporation of Buyer ("PARENT").
Buyer, Sellers, Real Estate Company and Shareholders are sometimes referred
to individually in this Agreement as a "PARTY" and collectively as the
"PARTIES." All other capitalized terms used in this Agreement and not
otherwise defined have the meanings set forth in ARTICLE 8 of this
Agreement.
Sellers are engaged in the retail grocery, pharmacy and
transportation business (the "BUSINESS"). Buyer desires to purchase from
Sellers, and Sellers desire to sell to Buyer, certain assets of the
Business on the terms and subject to the conditions set forth in this
Agreement. The Shareholders and Real Estate Company join in this Agreement
to make certain covenants, representations and warranties for the purpose
of inducing Buyer to enter into this Agreement. Parent joins in this
Agreement to provide a guaranty as set forth in this Agreement with respect
to certain obligations of Buyer under this Agreement.
ARTICLE 1 - PRINCIPAL TRANSACTION
SECTION 1.1. SALE AND PURCHASE OF ASSETS. On the terms and subject
to the conditions of this Agreement, Sellers agree to sell and transfer to
Buyer, and Buyer agrees to purchase from Sellers, all of the assets (except
the Excluded Assets) used in the operation of the Business (the "PURCHASED
ASSETS"), at 23 retail grocery stores operated by Glen's and Catt's (the
"STORES"); four pharmacies operated by Glen's Pharmacy, Inc. (the "
PHARMACIES"); the general office in Gaylord, Michigan (the "GENERAL
OFFICE"); the distribution center in Waters, Michigan (the "DISTRIBUTION
CENTER ") and the Dairy Queen in Gaylord, Michigan (the "DAIRY QUEEN"),
each as set forth on EXHIBIT A (the "BUSINESS LOCATIONS"). The Purchased
Assets include, without limitation, each of the following, except to the
extent included in the Excluded Assets:
(a) All inventories of food, beverages, and other products
sold in the Ordinary Course of Business of Sellers other than
Non-assignable Private Label Inventory (the "INVENTORY");
<PAGE>
(b) All machinery, equipment, furniture, office equipment,
store models and displays, automobiles, trucks, trailers,
vehicles, leasehold improvements, and all other tangible personal
property owned by Sellers and used in or related to the Business,
including without limitation those items set forth on EXHIBIT B,
together with all express and implied warranties by the
manufacturers or sellers of those items (to the extent legally
assignable), and all maintenance records, brochures, catalogues,
and other documents relating to those items or to the
installation or functioning of those items;
(c) All of Sellers' right, title, and interest in and to
all agreements, customer and supplier purchase orders and
agreements, personal property leases and other Contracts used in
or related to the Business (except Excluded Contracts, all
Contracts included in or related exclusively to the Excluded
Assets and all real property leases) (the "ASSIGNED CONTRACTS")
and any security deposits and similar deposits relating to the
Assigned Contracts;
(d) All of Sellers' right, title, and interest in and to
the real property leases listed on EXHIBIT C (the "EXISTING REAL
PROPERTY LEASES") and any security deposits and similar deposits
relating to the Existing Real Property Leases;
(e) All of Sellers' right, title, and interest in and to
all service marks, trade names (including without limitation the
names "Glen's," "Glen's Markets" and "Glen's Pharmacy" and all
variations of those names), trademarks, trademark registrations
and applications, logos, copyrighted works, copyright
registrations and applications, trade secrets, formulae,
technology, designs, processes, inventions, know-how, computer
programs and software, Internet web sites and domain names, and
other intellectual property rights, presently owned by Sellers
and, to the extent legally assignable, presently possessed or
used by Sellers (the "INTELLECTUAL PROPERTY ASSETS");
(f) All records, customer and supplier lists, payroll and
personnel records, product information, equipment lists,
telephone numbers (to the extent legally assignable),
specifications, drawings, plans, reports, data, notes,
correspondence, labels, catalogues, brochures, art work,
photographs, advertising materials, marketing and production
literature, files, and other records and documents in Sellers'
possession, including Sellers' books of account, ledgers, and
other financial records, but excluding Sellers' corporate records
and minute books;
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<PAGE>
(g) All permits, licenses, orders, franchises,
certifications and approvals and all Governmental Authorizations
relating to or maintained as part of the Business, to the extent
legally assignable, including but not limited to all food stamp,
WIC, pharmacy, lottery, transportation and MLCC licenses;
(h) Any of Sellers' choses in action, claims, causes, or
rights of action and intangible property rights, including,
without limitation, restrictive covenants, confidentiality
obligations, and similar obligations of Sellers' present and
former directors, officers, employees, and shareholders;
(i) All cash, cash equivalents, accounts receivable,
incentive rebates receivable, notes receivable and prepaid
expenses; and
(j) Any goodwill associated with the Business.
The Purchased Assets shall be transferred to Buyer at the Closing free and
clear of any Encumbrances.
SECTION 1.2. EXCLUDED ASSETS. Sellers are retaining all of their
respective right, title and interest in and to the following (the "EXCLUDED
ASSETS"):
(a) All assets of Sellers located at and used exclusively
in the operation of the Business at the laundry and dry cleaning
facility in Gaylord, Michigan;
(b) All real property owned by Sellers;
(c) All stock owned by Sellers in Spartan Stores, Inc,
Grocers Baking Company and Purchases Sales, Inc.;
(d) All assets of Sellers located at and used exclusively
in the operation of the Business at any Roundy's Store as to
which Roundy's has exercised a Roundy's Option;
(e) All assets of Sellers located at and used exclusively
in the operation of the Business at the SUPERVALU Store if
SUPERVALU has exercised the SUPERVALU Option;
(e) All of Catt's right, title and interest in and to the
names "Catt's" and "Catt's Realty;"and
(f) All Non-assignable Private Label Inventory;
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<PAGE>
(g) The lease of, and all assets located at and used
exclusively in the operation of, the Muy Grande Ranch;
(h) All assets of Sellers located at and used exclusively
in the operation of the Sav-A-Lot Stores;
(i) Those assets set forth on EXHIBIT D.
SECTION 1.3. PURCHASE PRICE. In consideration of the transfer of
the Purchased Assets to Buyer and the other undertakings set forth in this
Agreement, at the Closing Buyer shall pay and assume the following
(collectively, the "PURCHASE PRICE"):
(a) Subject to adjustments as provided in SECTION 1.5,
Buyer shall pay to Sellers the sum of Ninety Million Dollars
($90,000,000) (the "CASH PAYMENT"). On the Closing Date, Buyer
shall (i) retain an amount equal to One Million Dollars
($1,000,000) (the "HOLDBACK AMOUNT") and (ii) pay to Sellers in
readily available funds the remaining amount of the Cash Payment
(the "CLOSING PAYMENT"). On or before July 1, 2000, Buyer shall
pay to Sellers in readily available funds the Holdback Amount
plus interest at the annual rate of 7%, and less the amount of
Buyer's indemnification claims, if any, pursuant to ARTICLE 7 of
this Agreement.
(b) If at or prior to the Closing Buyer shall request
Sellers to terminate any supply contract with Roundy's for a
Roundy's Store, Buyer shall pay any applicable Roundy's
Termination Fee required pursuant to SECTION 4.14 of this
Agreement with respect to such Roundy's Store.
(c) Buyer shall assume and agree to pay, perform and
discharge, when due, the liabilities and obligations of Sellers
set forth on EXHIBIT E and all executory obligations under (i)
all Assigned Contracts other than Excluded Contracts and (ii) all
Existing Real Property Leases (except for any Existing Real
Property Leases as to which Buyer and the respective landlords
execute and deliver any amendment to the Existing Real Property
Lease, which in such case the Buyer shall then only assume and
agree to pay, perform and discharge, when due, the liabilities
and obligations of Sellers under the Existing Real Property
Lease, as so amended), in each case for any payment, performance,
discharge or obligation arising from and after the Closing Date
(the "ASSUMED LIABILITIES").
Except for the Assumed Liabilities, Sellers agree that Buyer shall not
assume or be obligated to pay, perform, or discharge any liability,
obligation, debt, charge, or expense of Sellers or Shareholders of any
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kind, description, or character, whether accrued, absolute, contingent, or
otherwise, or whether or not disclosed to Buyer in this Agreement, the
Disclosure Schedule, or otherwise (collectively, the "EXCLUDED
LIABILITIES"), including, but not limited to, those liabilities and
obligations listed on EXHIBIT F. Without limiting the generality of the
foregoing, and notwithstanding anything to the contrary contained in this
Agreement, except for the Assumed Liabilities, Buyer shall not assume or be
obligated to pay, perform, or discharge any liability, obligation, debt,
charge, or expense of Sellers or Shareholders even if imposed upon Buyer as
a successor to any Seller, with respect to any action, suit, proceeding, or
claim arising out of or relating to any event occurring, or with respect to
any cause of action arising, before or after the Closing Date, whether or
not asserted before or after the Closing Date, including, but not limited
to, any liability, obligation, debt, charge, or expense related to Taxes,
Environmental matters, agreements with sales representatives, employee
benefits, obligations or policies, judgments, product warranty claims,
product liability claims, and contractual claims. Sellers shall be liable
for all product warranty claims and all product liability claims arising
from products sold by Sellers on or before the Closing Date.
SECTION 1.4. CLOSING BALANCE SHEET AND INVENTORY VALUATION.
(a) Within thirty (30) days following the Closing, Buyer
shall prepare or cause to be prepared, and shall forward to
Sellers, (i) a balance sheet dated as of the Closing Date
reflecting only the Purchased Assets and the Assumed Liabilities
(the "CLOSING BALANCE SHEET") and (ii) Buyer's determination of
the Final Adjusted Inventory Value in accordance with the
Inventory Valuation Method set forth on EXHIBIT G (the "CLOSING
INVENTORY VALUATION"). The Closing Balance Sheet shall be
prepared in accordance with GAAP using Sellers' historical costs
and significant accounting policies, applied on a consistent
basis, except that Inventory shall be valued in accordance with
the Inventory Valuation Method.
(b) The Closing Balance Sheet and the Closing Inventory
Valuation shall be final, conclusive, and binding on Sellers and
Shareholders unless, within thirty (30) days after the date that
the Closing Balance Sheet and the Closing Inventory Valuation are
delivered to Sellers, Sellers notify Buyer in writing of Sellers'
objections to the Closing Balance Sheet or Closing Inventory
Valuation, specifically listing the disputed items and amounts
and the facts and accounting principles supporting each of
Sellers' objections. If Sellers give notice of objection,
Sellers and Buyer shall try to resolve the objections within
fifteen (15) days after Buyer receives the notification. If
Buyer and Sellers are unable to resolve Sellers' objections
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within the fifteen (15) day period, the disputed matters shall,
within thirty (30) days after the original notification, be
referred for decision to a nationally recognized independent
accounting firm selected by Buyer and Sellers. In reaching its
determination with respect to the disputed matters involving the
Closing Balance Sheet, the accounting firm shall be guided by
GAAP, consistently applied. In reaching its determination with
respect to disputed matters involving the Closing Inventory
Valuation, the accounting firm shall be guided by the Inventory
Valuation Method. Buyer and Sellers shall each pay one-half
(one-half) of the fees and expenses of the independent accounting firm
incurred in connection with the proceeding. The decision of the
independent accounting firm shall be final, conclusive and
binding on all Parties.
SECTION 1.5. PURCHASE PRICE ADJUSTMENTS.
(a) The Purchase Price shall be reduced on a dollar-for-
dollar basis to the extent the value of the Current Purchased
Assets (excluding the Inventory) as of Closing, as reflected on
the Closing Balance Sheet, is less than Five Million Five
Thousand Six Hundred Seventy Five Dollars ($5,005,675).
(b) The Purchase Price shall be increased or decreased, as
applicable, on a dollar-for-dollar basis, to the extent the
Initial Adjusted Inventory Value is more than or less than
$14,580,000.
(c) The Purchase Price shall be increased or decreased, as
applicable, on a dollar-for-dollar basis to the extent the Final
Adjusted Inventory Value is more than or less than the Initial
Adjusted Inventory Value.
(d) The Purchase Price shall be reduced on a dollar-for-
dollar basis to the extent Sellers' Normalized Working Capital
Liabilities as of Closing exceed the Normalized Working Capital
Liabilities Limit, as reflected on the Closing Balance Sheet.
(e) The amount of fees and other payments received by
Sellers or Buyer from any product or service supplier before or
after Closing based upon any volume requirements or time
commitments under any product or service supply Contract included
in the Purchased Assets shall be prorated between Buyer and
Sellers based upon the applicable volume requirements or time
commitments remaining as of Closing. Sellers shall be entitled
to such fees and payments to the extent that Sellers have
performed the volume requirements or time commitments as of
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Closing. Buyer shall be entitled to such fees and payments to
the extent that the volume requirements or time commitments are
to be performed by Buyer after Closing.
(f) The Purchase Price paid by Buyer to Sellers shall be
reduced by the SUPERVALU Adjustment Amount if SUPERVALU exercises
the SUPERVALU Option, except to the extent the exercise of such
option has reduced the Purchase Price pursuant to SECTION 1.5(A).
(g) The Purchase Price paid by Buyer to Sellers shall be
reduced by Fourteen Million Dollars ($14,000,000) if Roundy's
exercises the Roundy's Option as to the Roundy's Store located in
North Petoskey and by Two Million Dollars ($2,000,000) each if
Roundy's exercises the Roundy's Option as to a Roundy's Store
located in Alpena, Cadillac or South Petoskey, Michigan, except
to the extent the exercise of such option has reduced the
Purchase Price pursuant to SECTION 1.5(A).
(h) Unless the Purchase Price shall have been reduced
pursuant to SECTION 1.5(A), the Purchase Price shall be reduced
on a dollar-for-dollar basis to the extent the amount of cash and
cash equivalents as of Closing, as reflected on the Closing
Balance Sheet, is less than Three Million One Hundred Eight
Thousand One Hundred Eighty Seven Dollars ($3,108,187).
(i) The Purchase Price paid by Buyer to Sellers shall be
adjusted at or after the Closing at Sellers' option to reflect
any costs, expenses, and other amounts that Sellers are required
to pay to Buyer or that Buyer pays on behalf of Sellers pursuant
to SECTIONS 4.12 OR 9.9 of this Agreement.
(j) Within five (5) days after the determination of any
adjustment to the Purchase Price, Buyer and Sellers agree to pay
any amount due to the other, as the case may be by direct payment
and not by payment from the Holdback Amount. The Parties
acknowledge and agree that any required adjustment to the
Purchase Price at or after the Closing pursuant to this SECTION
1.5 is not a payment of indemnity pursuant to ARTICLE 7 of this
Agreement and is not subject to the limitations on
indemnification set forth in SECTION 7.5 of this Agreement.
SECTION 1.6. CLOSING. The purchase and sale contemplated by this
Agreement (the "CLOSING") shall take place at the offices of Warner
Norcross & Judd LLP, 900 Old Kent Building, 111 Lyon Street, N.W., Grand
Rapids, Michigan 49503-2487, on March 29, 1999 or at such other time and
date as are mutually agreeable by the Parties, or, in the absence of an
agreement, at a time and date occurring after March 29, 1999, as specified
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by either Buyer or Sellers upon five (5) business days' notice to the
other, after fulfillment or waiver of the conditions precedent set forth in
ARTICLE 5 of this Agreement (the "CLOSING DATE"). The Closing shall be
deemed to be effective upon the close of business on the Closing Date.
SECTION 1.7. DELIVERIES AT CLOSING.
(a) At the Closing, Buyer shall execute and deliver, or
cause to be executed and delivered, to Sellers (i) the Closing
Payment by wire transfer; (ii) written instruments or agreements,
reasonably acceptable to Sellers, that provide for Buyer's
assumption of the Assumed Liabilities; (iii) certified copies of
resolutions of Buyer's directors, reasonably acceptable to
Sellers, authorizing the consummation of the transactions
contemplated by this Agreement; (iv) those agreements, documents
and instruments referenced in ARTICLE 5 of this Agreement; (v)
the Services Agreement, if required pursuant to SECTION 4.10;
(vi) the New Real Property Leases; (vii) the Noncompetition
Agreements; and (viii) any and all other agreements,
certificates, instruments, and documents as shall be reasonably
required of Buyer under this Agreement.
(b) At the Closing, Sellers and Shareholders, as
applicable, shall execute and deliver, or cause to be executed
and delivered, to Buyer (i) bills of sale, certificates of title,
endorsements, assignments, and other instruments of conveyance,
reasonably acceptable to Buyer, that are sufficient to transfer
to Buyer title in the Purchased Assets in accordance with this
Agreement; (ii) written consents of third parties, if necessary,
with respect to the transfer of the Purchased Assets (including
the Assigned Contracts and Existing Real Property Leases) to
Buyer; (iii) certified copies of resolutions of Sellers'
directors and shareholders, reasonably acceptable to Buyer,
authorizing the consummation of the transactions contemplated by
this Agreement; (iv) all records and other documents included in
the Purchased Assets; (v) consents and estoppel certificates,
reasonably acceptable to Buyer, from the lessors with respect to
the Existing Real Property Leases and any personal property
leases; (vi) evidence of the Secretary of State of Michigan or
other appropriate Governmental Body that Sellers, and their
Affiliates have changed their names to a name that does not
include "Glen's" or any derivation thereof; (vii) those documents
and instruments referenced in ARTICLE 5 of this Agreement; (viii)
the Services Agreement, if required pursuant to SECTION 4.10;
(ix) the New Real Property Leases; (x) the Noncompetition
Agreements; and (xi) any and all other agreements, certificates,
instruments, and documents as shall be reasonably required of
Sellers under this Agreement.
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(c) Buyer, Sellers, and Shareholders shall take all further
actions and execute and deliver any additional agreements,
certificates, instruments, and other documents on or after the
Closing as Buyer or Sellers shall reasonably request to
effectuate the transactions contemplated by this Agreement.
SECTION 1.8. ALLOCATION OF PURCHASE PRICE. The Purchase Price
shall be allocated among the Purchased Assets and Sellers' and
Shareholders' other covenants set forth in this Agreement in accordance
with EXHIBIT H, which allocation shall be final, conclusive and binding on
Buyer, Sellers and Shareholders for reporting and disclosure requirements
under the Internal Revenue Code and any other state, local, or foreign Tax
authority.
ARTICLE 2 - REPRESENTATIONS AND WARRANTIES
OF SELLERS, SHAREHOLDERS AND REAL ESTATE COMPANY
Sellers and Shareholders, and with respect solely to SECTIONS
2.13, 2.17,2.27 AND 2.28 Real Estate Company, jointly and severally
represent and warrant to Buyer as follows:
SECTION 2.1. DISCLOSURE SCHEDULE. Sellers have delivered to Buyer
on the date of this Agreement a Disclosure Schedule, which includes
numbered schedules corresponding to the sections and subsections of this
Agreement or otherwise specifically referred to in this ARTICLE 2. The
information contained in the Disclosure Schedule is complete and accurate
in all respects on the date of this Agreement and shall be complete and
accurate in all respects as of the Closing Date. All documents that are
attached to or form a part of the Disclosure Schedule are true and complete
copies of the genuine original documents they purport to represent.
References in the Disclosure Schedule to sections and subsections of this
Agreement are for the convenience of the Parties only, and any fact or item
which is disclosed in any section of the Disclosure Schedule as an
exception to any representation or warranty in this Agreement shall be
deemed to be an exception to such representation and warranty, and to every
other representation and warranty contained herein, notwithstanding the
omission of a reference or cross-reference thereto.
SECTION 2.2. ORGANIZATION AND GOOD STANDING. Each Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the state of Michigan, with full corporate power and authority to
conduct its business as it is now being conducted, to own or use the
properties and assets that it purports to own or use, and to perform its
obligations under its Contracts. Each Seller is duly qualified to do
business and is in good standing in each state or other jurisdiction in
which either the ownership or use of the properties owned or used by it or
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the nature of the activities conducted by it requires such qualification.
Copies of each Seller's Organizational Documents are attached to SCHEDULE
2.2 of the Disclosure Schedule. Except for the Excluded Assets or as
disclosed on SCHEDULE 2.2, each Seller does not have any subsidiaries and
does not own or have any right to acquire any equity interest in any other
Person. The Shareholders own the number of shares of capital stock of each
Seller set forth on SCHEDULE 2.2.
SECTION 2.3. FINANCIAL STATEMENTS. Copies of the reviewed financial
statements for each Seller at and for the fiscal years ended January 3,
1998, December 28, 1996, and December 30, 1995, are attached to SCHEDULE
2.3 of the Disclosure Schedule (the "FINANCIAL STATEMENTS"). Also attached
to SCHEDULE 2.3 are copies of the interim balance sheets and interim
statements of income and cash flows of each Seller at and for each fiscal
quarter for the fiscal year ending January 2, 1999 and during the current
fiscal year, each prepared internally by Sellers (the "INTERIM FINANCIAL
STATEMENTS"). The Interim Financial Statements include the balance sheet
of each Seller at September 12, 1998 (the "BALANCE SHEET"). The Financial
Statements and Interim Financial Statements present fairly the financial
condition of each Seller at the dates indicated and its results of
operations for the periods then ended, all in accordance with GAAP applied
on a basis consistent throughout such periods and consistent with prior
periods.
SECTION 2.4. BOOKS AND RECORDS. All books of account, ledgers, and
financial and other records of Sellers, all of which have been made
available to Buyer, are complete and correct and have been maintained in
accordance with sound business practices. All of these books and records
are in the possession of Sellers.
SECTION 2.5. NO UNDISCLOSED LIABILITIES. Each of the Sellers has no
liabilities or obligations of any nature (whether known or unknown and
whether absolute, accrued, contingent or otherwise) except for liabilities
or obligations reflected or reserved against in the Balance Sheet of the
Seller and current liabilities incurred in the Ordinary Course of Business
since January 3, 1998, except (a) as set forth on SCHEDULE 2.5 or (b) where
the same has not had, and could not reasonably be expected to have, a
Material Adverse Effect.
SECTION 2.6. TAXES. Each Seller has timely (a) filed all Tax
Returns pursuant to applicable Legal Requirements; (b) paid or made proper
provision for payment of all Taxes due and payable by it; and (c) withheld
or collected all Taxes required by applicable Legal Requirements and, to
the extent required, paid such Taxes to the proper Governmental Body or
other Person. The charges, accruals and reserves with respect to the Taxes
on the books of each Seller are adequate (determined in accordance with
GAAP) and are at least equal to each Seller's liability for Taxes. No
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Seller has signed an extension with any Governmental Body concerning any
liability for Taxes and no open matters exist for any prior periods. There
is no proposed Tax assessment against any Seller and no deficiency has been
asserted against any Seller as a result of any examination by the IRS or
other Governmental Body that has not been paid or finally settled, and no
grounds exist for the assertion of any deficiency for any periods that have
not been audited by the IRS or other applicable Governmental Body. Glen's
and Catt's are, and during all applicable periods have been, S Corporations
for federal income tax purposes. Glen's Pharmacy is, and during all
applicable periods has been, a C Corporation for federal income tax
purposes. Copies of each Seller's federal, state and local income Tax
Returns with supporting schedules filed for the fiscal years ended January
3, 1998, December 28, 1996, and December 30, 1995 are attached to
SCHEDULE 2.6 of the Disclosure Schedule.
SECTION 2.7. NO MATERIAL ADVERSE CHANGE; ABSENCE OF RESTRICTED
EVENTS. Other than (a) as set forth in SCHEDULE 2.7 or (b) the sale of
assets at a Roundy's Store or SUPERVALU Store to Roundy's or SUPERVALU,
respectively, in accordance with their exercise of the Roundy's Option or
the SUPERVALU Option respectively, since January 3, 1998, (i) each Seller
has conducted its operations and affairs only in the Ordinary Course of
Business; (ii) there has not been any change in the business, operations,
properties, prospects, assets or condition (financial or otherwise,
including profitability, earnings or cash flow) of any Seller or the
Business which has resulted in, or reasonably could be expected to result
in, a Material Adverse Effect; and (iii) no Restricted Event has occurred
with respect to any Seller.
SECTION 2.8. EMPLOYEES; LABOR RELATIONS.
(a) SCHEDULE 2.8 of the Disclosure Schedule contains the
following information for each employee of Sellers (including
each employee on leave of absence or layoff status): name; job
title; current compensation paid or payable; vacation accrued;
and service credited for purposes of vesting and eligibility to
participate under any of Sellers' Employee Benefit Plans. To
Sellers' Knowledge, no employee of any Seller (other than the
Terminating Employees) intends to terminate his or her employment
with the Seller as a result of or in connection with the
transaction contemplated by this Agreement. Each of Sellers'
employees is employed on an "at will" basis. EXHIBIT I of this
Agreement sets forth all earned but unpaid vacation and flex-time
accrued or to be accrued by Sellers for their employees as of the
date set forth therein.
(b) No Seller is now and has not ever been a party to any
collective bargaining or other labor Contract. Since January 1,
1995, there has not been, there is not presently pending or
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existing and to Sellers' Knowledge there is not Threatened, any
strike, slowdown, picketing, work stoppage, labor arbitration or
proceeding concerning the grievance of any employee, application
or complaint filed by an employee or union with the National
Labor Relations Board or any comparable Governmental Body,
organizational activity or other labor dispute against or
affecting any Seller or its premises, and no application for
certification of a collective bargaining agent is pending or to
Sellers' Knowledge Threatened. No event has occurred or
circumstance exists that could provide the basis for any work
stoppage or other labor dispute. There is no lockout of any
employees by any Seller and no such action is contemplated by any
Seller. Each Seller has complied with all Legal Requirements
relating to employment, equal employment opportunity,
nondiscrimination, immigration, wages, hours, benefits,
collective bargaining, the payment of social security and similar
Taxes, occupational safety and health and plant closing; except
where such failure has not resulted and could not reasonably be
expected to result in a Material Adverse Effect. No Seller is
currently liable for the payment of any Taxes, fines, penalties
or other amounts, however designated, for failure to comply with
any Legal Requirements.
SECTION 2.9. EMPLOYEE BENEFIT PLANS.
(a) SCHEDULE 2.9 of the Disclosure Schedule sets forth each
Employee Benefit Plan maintained by each Seller or covering
current or former (including retired) employees of any Seller.
Copies of all written Employee Benefit Plans and all agreements
adopted or other material used in connection with or relating to
such Employee Benefit Plans (including descriptions of vacation,
separation and other personnel policies) are also attached to
SCHEDULE 2.9.
(b) Each Seller has timely performed all of its obligations
(including, to the extent applicable, reporting, disclosure,
prohibited transaction, IRS qualification and funding
obligations) under its Employee Benefit Plans. To the Sellers'
Knowledge, each Employee Benefit Plan, and the administration of
each Employee Benefit Plan, complies and has complied with all
applicable Legal Requirements.
(c) No Seller nor any predecessor or Affiliate of any
Seller has ever established, maintained or contributed to or
otherwise participated in, or had an obligation to establish,
maintain, contribute to or otherwise participate in, any Multi-
Employer Retirement Plan.
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SECTION 2.10. TITLE TO PROPERTIES; ENCUMBRANCES. Except as disclosed
on SCHEDULE 2.10, Sellers own all the properties and assets (whether real,
personal or mixed and whether tangible or intangible) located in or at the
facilities owned or operated by Sellers or reflected as owned in the books
and records of Sellers, including all of the properties and assets
reflected in the Balance Sheet or the Interim Financial Statements of the
Sellers (except for inventory sold or equipment replaced since the date of
the Balance Sheet or the subsequent Interim Financial Statements, as the
case may be, in the Ordinary Course of Business). All Purchased Assets are
free and clear of all Encumbrances.
SECTION 2.11. PERSONAL PROPERTY. SCHEDULE 2.11 of the Disclosure
Schedule contains a list of (a) all automobiles, trucks, trailers and other
vehicles owned or leased by each of the Sellers and (b) all machinery,
equipment, furniture and other tangible personal property owned or leased
by each of the Sellers, except that SCHEDULE 2.11 need not include any
asset with a book value of less than $5,000. All such personal property
is in the possession of Sellers at one of the Business Locations or at such
other location as is specified on SCHEDULE 2.11.
SECTION 2.12. REAL PROPERTY. SCHEDULE 2.12 of the Disclosure
Schedule contains a list of all real property, leaseholds or other real
property interests of each of the Sellers used in the operation of the
Business (the "REAL PROPERTY "). All buildings, plants and structures
owned, leased or used by each of the Sellers lie wholly within the
boundaries of the Real Property and do not encroach upon the property of,
or otherwise conflict with the property rights of, any other Person.
Sellers and Real Estate Company are not in violation of any zoning
regulation, building restriction, restrictive covenant, ordinance, or other
Legal Requirement relating to any Real Property. There are no ground
subsidences or slides on any Real Property. None of the Real Property is
the subject of any condemnation action and, to the Knowledge of Sellers,
there is no proposal under consideration by any Governmental Body to use
any of the Real Property for some other purpose. All Real Property is
zoned for a classification that permits the continued use of the Real
Property in the manner currently used by Sellers. All buildings and
improvements to the Real Property are adequately serviced by all utilities
necessary for the effective operation of the Business as presently
conducted. Final certificates of occupancy have been issued for the
improvements on the Real Property permitting the existing use of such
improvements. There are no Proceedings pending or, to the Knowledge of
Sellers or Real Estate Company, Threatened that would alter the current
zoning classification of the Real Property or alter any Legal Requirements
applicable to the Real Property. Sellers and Real Estate Company have not
received notice from any landlord, insurance company, Governmental Body or
other Person of any defects or inadequacies in the Real Property or the
improvements thereon that would adversely affect the insurability or
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usability of the Real Property or such improvements or prevent the issuance
of new insurance policies thereon at rates not materially higher than
present rates. To the Knowledge of Sellers and Real Estate Company, no
fact or condition exists that would result in the discontinuation of
necessary utilities or services to the Real Property or the termination of
current access to and from the Real Property.
SECTION 2.13. CONDITION AND SUFFICIENCY OF ASSETS. Except as
disclosed in Schedule 2.13 of the Disclosure Schedule, the buildings,
plants, structures, machinery, equipment, and other tangible property
owned, leased, licensed or used in the Business by each of the Sellers (a)
are structurally sound, are in good operating condition and repair and are
adequate for the uses to which they are being put; (b) do not need
maintenance or repairs except for ordinary, routine maintenance and repairs
that are not material in nature or cost; (c) are in material compliance
with all applicable codes and other Legal Requirements; and (d) are
sufficient for the continued conduct of the Businesses after the Closing in
substantially the same manner as conducted before the Closing.
SECTION 2.14. ACCOUNTS RECEIVABLE. All accounts receivable of each
of the Sellers that are reflected on the Balance Sheet or the subsequent
Interim Financial Statements of the Seller or on the accounting records of
the Seller as of the Closing Date (collectively, the "ACCOUNTS RECEIVABLE")
represent or will represent valid obligations arising from sales actually
made or services actually performed in the Ordinary Course of Business.
Unless paid before the Closing Date, the Accounts Receivable are, or will
be as of the Closing Date, current and collectible, and each of the
Accounts Receivable either has been or will be collected in full, without
any set-off, within 60 days after the day on which it first becomes due and
payable.
SECTION 2.15. INVENTORY. All inventory of each of the Sellers,
whether or not reflected in the Balance Sheet or the subsequent Interim
Financial Statements of the Seller, consists of a quality and quantity
usable and salable by Buyer without discount in the Ordinary Course of
Business, except for obsolete items and items below standard quality, all
of which have been written off or written down to net realizable value in
the Balance Sheet or the Interim Financial Statements of the Seller. The
quantities of each item of inventory are not excessive, but are reasonable
in the present circumstances of each of the Sellers.
SECTION 2.16. LITIGATION. Except as set forth on SCHEDULE 2.16 of
the Disclosure Schedule, there is no Proceeding or Order pending against
any Seller or, to the Knowledge of Sellers, that otherwise relates to or
may affect the Business of, or any of the property or assets owned or used
by, any Seller or that may interfere with the transactions contemplated by
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this Agreement. To Sellers' Knowledge, no such Proceeding or Order has
been Threatened and no event has occurred or circumstance exists that may
give rise to or serve as a basis for any such Proceeding or Order.
SECTION 2.17. AUTHORIZATION AND ENFORCEABILITY; NO CONFLICT WITH
OTHER INSTRUMENTS OR PROCEEDINGS.
(a) Sellers, Shareholders and Real Estate Company have full
capacity, power and authority to enter into and perform this
Agreement and to carry out the transactions contemplated by this
Agreement. This Agreement is binding upon Sellers, Shareholders
and Real Estate Company and is enforceable against each of them
in accordance with its terms; provided that no representation or
warranty is made as to the enforceability of the length or scope
of the covenants set forth in SECTION 4.7.
(b) The execution, delivery and performance of this
Agreement by Sellers, Shareholders and Real Estate Company and
the consummation of the transactions contemplated by this
Agreement will not (i) contravene the Organizational Documents of
Sellers or Real Estate Company or result in a Breach of any
provision of, or constitute a default under, any Contract, except
where the same has not had, and could not reasonably be expected
to have, a Material Adverse Effect; (ii) violate any Legal
Requirement or Order or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify any
Governmental Authorization applicable to Sellers or Shareholders;
(iii) result in the imposition of any Tax on Buyer or any of the
Sellers or accelerate any indebtedness of any of the Sellers or
increase the rate of interest payable by any of the Sellers with
respect to any indebtedness; or (iv) result in any Encumbrance
being created or imposed upon or with respect to the Real
Property or any of the property or assets owned, leased, licensed
or used by any of the Sellers. All consents, approvals or
authorizations of or declarations, filings or registrations with
any Person required in connection with the execution, delivery or
performance of this Agreement or the consummation of the
transactions contemplated by this Agreement are set forth on
SCHEDULE 2.17 of the Disclosure Schedule and will be obtained or
made, as applicable, by Shareholders or Sellers or Real Estate
Company before the Closing.
SECTION 2.18. CONTRACTS. SCHEDULE 2.18 of the Disclosure Schedule
sets forth and includes a copy of (a) each Material Assigned Contract and
each Existing Real Property Lease to which any Seller is a party or by
which any Seller is bound or affected and (b) each Contract with Roundy's
or SUPERVALU to which any Seller has been a party or by which any Seller
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has been bound or affected at any time since January 1, 1997. Each
Assigned Contract and Existing Real Property Lease is in full force and
effect and is valid and enforceable in accordance with its terms. Each
Seller and each other Person that is a party to each Assigned Contract and
Existing Real Property Lease has complied and is fully complying with all
of its applicable terms, and no event has occurred or circumstance exists
that (with or without notice or lapse of time) may contravene, conflict
with or result in a violation or Breach of, or give Sellers or any other
Person the right to declare a default under, any Assigned Contract or
Existing Real Property Lease. Except as separately set forth in SCHEDULE
2.18, no Seller is a party to any Assigned Contract the terms, rights,
benefits or obligations of which would be modified, accelerated, increased
or vested as a result of the consummation of the transactions contemplated
by this Agreement.
SECTION 2.19. INTELLECTUAL PROPERTY ASSETS. SCHEDULE 2.19 sets forth
all Intellectual Property Assets presently owned, leased, licensed or used
by Sellers or used in the Business. Unless otherwise indicated on SCHEDULE
2.19, Sellers will own the entire and exclusive right, title and interest
in and to the Intellectual Property Assets on the Closing Date and will
transfer the same to Buyer free and clear of all Encumbrances. Following
the Closing, Buyer shall have the exclusive right to use the Intellectual
Property Assets without payment to any other Person. Except as disclosed on
SCHEDULE 2.19, there is no infringement of or unlawful use by any Person of
any of the Intellectual Property Assets and no Seller has infringed or
unlawfully used any Intellectual Property Assets of any other Person.
SCHEDULE 2.19 also sets forth a list of all Contracts relating to
Intellectual Property Assets to which any Seller is a party or by which any
Seller is bound or affected. None of the Intellectual Property Assets are
subject to any pending or, to Sellers' Knowledge, Threatened claim or
challenge, and there is no valid basis for asserting any claim or
challenge. The Intellectual Property Assets are all that is necessary for
the operation of the Business as presently conducted and are sufficient in
form and quality so that following the Closing Buyer can sell the products
and provide the services sold or provided by Sellers in the Business before
the Closing in a manner that meets applicable specifications and conforms
to commercially acceptable quality standards.
SECTION 2.20. INSURANCE. SCHEDULE 2.20 of the Disclosure Schedule
contains a list of all policies of liability, crime, fidelity, life, fire,
product liability, workers' compensation, health, director and officer
liability and other forms of insurance owned or maintained by each of the
Sellers with respect to the Business, including for each policy: the name
of the insurer; the amount of coverage; the type of insurance; the policy
number; the renewal or expiration date; and all pending claims under the
policy. Sellers have provided to Buyer a copy of all insurance policies
listed on Schedule 2.20. All of the insurance policies listed on SCHEDULE
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2.20 are outstanding and in full force, all premiums with respect to the
policies are currently paid and all duties of the insureds under the
policies have been fully discharged.
SECTION 2.21. NO ILLEGAL PAYMENTS. No Seller nor any other Person
associated with or acting on behalf of any Seller has used any funds for
unlawful contributions, gifts, entertainment or other expenses or made any
direct or indirect unlawful payments or established or maintained any
unlawful or unrecorded funds.
SECTION 2.22. PRODUCT AND SERVICE WARRANTIES AND LIABILITIES. Set
forth on SCHEDULE 2.22 of the Disclosure Schedule are all warranties
applicable to products and services provided by any Seller. Except as
disclosed on SCHEDULE 2.22, there are no claims against any Seller to
return products in excess of an aggregate of $5,000 for all purchasers
considered collectively, by reason of alleged overshipments, defective
merchandise or otherwise, and there is no Proceeding pending or, to
Sellers' Knowledge, Threatened against any Seller under any warranty nor is
there any basis upon which any claim could validly be made. SCHEDULE 2.22
also summarizes all product liability claims that have been asserted
against any Seller during the five years preceding the date of this
Agreement.
SECTION 2.23. CERTAIN RELATIONSHIPS. Except as expressly permitted
by this Agreement or as disclosed on SCHEDULE 2.23 of the Disclosure
Schedule, no Seller nor any Related Person is an owner, shareholder,
creditor, director, agent, consultant or employee of, or lender to, any
Person engaged in a business that acts as a supplier of any goods or
services to any of the Sellers or any part of which is in actual or
potential competition with any of the Sellers. Except as disclosed on
SCHEDULE 2.23, none of the Sellers has any outstanding indebtedness to any
Related Person, and any Related Person does not have any outstanding
indebtedness to any of the Sellers.
SECTION 2.24. PERMITS AND LICENSES; COMPLIANCE WITH LEGAL
REQUIREMENTS. All Governmental Authorizations necessary for each Seller to
carry on its business as presently conducted are identified on SCHEDULE
2.24 of the Disclosure Schedule and have been timely obtained and are in
full force and effect. All fees and charges incident to those Governmental
Authorizations have been fully paid and are current and no suspension or
cancellation of any Governmental Authorization has been Threatened or could
result by reason of the transactions contemplated by this Agreement. No
Seller is subject to, nor has it been Threatened with, any Adverse
Consequence as the result of a failure to comply with any Legal Requirement
applicable to it or the conduct or operation of its business or the
ownership or use of any of its properties or assets. To the Knowledge of
Sellers, no event has occurred or circumstance exists (with or without
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notice or lapse of time) that may give rise to any such Adverse
Consequence. Each Seller is presently, and during all applicable
limitations periods has been, in full compliance with all applicable Legal
Requirements and Governmental Authorizations; except where such
noncompliance has not had, and could not reasonably be expected to have, a
Material Adverse Effect.
SECTION 2.25. NO BROKER'S FEES. Except as set forth on SCHEDULE
2.25, neither any of the Sellers, Shareholders, nor anyone acting on their
behalf has incurred any liability or obligation to pay fees or commissions
to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which Buyer could be liable.
SECTION 2.26. YEAR 2000 COMPLIANCE. SCHEDULE 2.26 contains a copy of
Sellers' Year 2000 Compliance Plan and Completion Schedule (the "YEAR 2000
PLAN"). The Year 2000 Plan accurately represents Sellers' Year 2000
compliance status as of the dates set forth therein and, to Sellers'
Knowledge, when the Year 2000 Plan is completed in accordance with the
schedule set forth therein, all Purchased Assets and all buildings, plants,
structures, machinery, equipment, software, hardware, computer systems and
other property owned, leased, licensed or used by the Sellers in the
Business (a "YEAR 2000 ASSET") will at all times before, during and after
January 1, 2000 accurately process and handle date and time data, including
but not limited to performing all leap year calculations and calculating,
comparing and sequencing during and between the years 1999 and 2000 and all
other years, and will not malfunction, cease to function or provide invalid
or incorrect results or data as a result of date or time data, including
when a Year 2000 Asset is used in combination with or is interfacing with
any other Year 2000 Asset or with any other asset or information
technology. No Proceeding is pending or Threatened by or against any
Seller based on any claim that any Seller or any Year 2000 Asset was not,
is not or will not be Year 2000 Compliant and, to Sellers' Knowledge, there
is no basis for such a Proceeding.
SECTION 2.27. ENVIRONMENTAL MATTERS. Without limiting the generality
of the other representations and warranties set forth in this ARTICLE II,
except as described in SCHEDULE 2.27: (i) each of the Sellers and Real
Estate Company has conducted its business in compliance with all applicable
Environmental Laws and Occupational Safety and Health Laws, including
without limitation by having all Permits required under any Environmental
Laws for the operation of their businesses; (ii) none of the Real Property
contains any Regulated Substance in amounts exceeding the levels permitted
by applicable Environmental Laws; (iii) none of the Sellers nor the Real
Estate Company have received any notice, demand letter or request for
information from any Governmental Body or other Person indicating that any
of the Sellers or Real Estate Company may be in violation of, or liable
under, any Environmental Law or relating to any of the Real Property or any
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asset owned, leased, licensed or used by any of the Sellers; (iv) no
reports have been filed, or are required to be filed, by any of the Sellers
or Real Estate Company concerning the release of any Regulated Substance or
the Threatened or actual violation of any Environmental Law; (v) there are
no underground storage tanks on, in or under the Real Property and no
underground storage tanks have been closed or removed from any of the Real
Property, and, to the extent that any underground storage tanks are
identified in SCHEDULE 2.27 none of such tanks have ever been used by any
of the Sellers or by Real Estate Company; (vi) there is no friable asbestos
or friable asbestos containing material present in any of the Real
Property, and no asbestos has been removed by or on behalf of any of the
Sellers or Real Estate Company from any of the Real Property; and (vii)
none of the Sellers nor Real Estate Company are subject to any Proceeding
asserted or arising under any Environmental Law. SCHEDULE 2.27 of the
Disclosure Schedule sets forth (and includes a copy of) all Environmental
investigations, studies, audits, tests, reviews or other analyses regarding
compliance or noncompliance with any Environmental Law conducted by or on
behalf of, or which are in the possession of, each of the Sellers or Real
Estate Company relating to the Real Property or the Sellers
SECTION 2.28. ACCURACY OF STATEMENTS. No representation or warranty
made by any Seller, Shareholder or Real Estate Company in this Agreement,
the Disclosure Schedule or any statement, certificate or schedule
furnished, or to be furnished, to Buyer pursuant to this Agreement or in
connection with the transactions contemplated by this Agreement contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained therein not misleading.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
SECTION 3.1. ORGANIZATION AND STANDING OF BUYER. Buyer is a
corporation duly organized, validly existing and in good standing under the
laws of the state of Michigan.
SECTION 3.2. AUTHORIZATION AND ENFORCEABILITY. Buyer has full
corporate power and authority to enter into this Agreement and to carry out
the transactions contemplated by this Agreement. This Agreement is binding
upon Buyer and is enforceable against Buyer in accordance with its terms.
SECTION 3.3. NO BROKER'S FEES. Except as set forth on SCHEDULE 3.3,
neither Buyer nor anyone acting on Buyer's behalf has incurred any
liability or obligation to pay fees or commissions to any broker, finder or
agent with respect to the transactions contemplated by this Agreement for
which Sellers or Shareholders could become liable.
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SECTION 3.4. NO CONFLICT WITH OTHER INSTRUMENTS OR PROCEEDINGS. The
execution, delivery and performance of this Agreement by Buyer and the
consummation of the transactions contemplated by this Agreement will not
(i) contravene the Organizational Documents of Buyer or result in a Breach
of any provision of, or constitute a default under, any Contract, except
where the same has not had, and could not reasonably be expected to have, a
Material Adverse Effect or (ii) violate any Legal Requirement or Order or
give any Governmental Body the right to revoke, withdraw, suspend, cancel,
terminate or modify any Governmental Authorization applicable to Buyer.
ARTICLE 4 - COVENANTS AND AGREEMENTS
Buyer, Sellers and Shareholders (as applicable) covenant to and
agree with each other as follows:
SECTION 4.1. CONDUCT PENDING THE CLOSING. From the date of this
Agreement to the Closing Date:
(a) Sellers shall conduct the operations and affairs of the
Business only in the Ordinary Course of Business. Without
Buyer's prior written consent, Sellers shall not enter into any
transactions not in the Ordinary Course of Business, including
(i) any sale or other disposition of the Business or any assets
of the Business except (A) the sale of inventory in the Ordinary
Course of Business, (B) the renewal or replacement of equipment
in the Ordinary Course of Business, and (C) the sale or
disposition of the assets of a Roundy's Store or SUPERVALU Store
to Roundy's or SUPERVALU, respectively, in accordance with
SECTION 4.6 of this Agreement, and (ii) any incurrence of
indebtedness for borrowed money except for draws upon Sellers'
working capital lines of credit in the Ordinary Course of
Business.
(b) Sellers and Shareholders shall exercise reasonable best
efforts to preserve intact the present business organization and
personnel of the Business and the goodwill of Sellers with all
Persons having business dealings with Sellers.
(c) Sellers shall (i) operate marketing, merchandising and
advertising plans in the Ordinary Course of Business; (ii)
provide Buyer the opportunity to review such plans; and (iii)
refrain from revising or deviating from such plans without
Buyer's prior written consent, which shall not be unreasonably
withheld.
(d) Sellers shall not enter into a new lease or extend or
amend any existing lease with respect to any Business Location
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without Buyer's prior written consent, which shall not be
unreasonably withheld.
(e) Sellers' mix of Inventory shall remain consistent with
Sellers' historical pattern and practice.
(f) Neither any Seller nor any Shareholder shall, without
the prior written consent of Buyer: (i) take any action that
would interfere with or prevent the timely consummation or
performance of this Agreement; or (ii) take any action that would
constitute a Restricted Event or which would be inconsistent in
any respect with any of the representations, warranties,
covenants or obligations set forth in this Agreement, as if such
representations, warranties, covenants or obligations were made
at a time subsequent to such action.
(g) Sellers shall not intentionally delay making any
capital improvements, maintenance or repairs, all of which shall
be made in the Ordinary Course of Business. Sellers shall not
intentionally delay the replacement, remediation or repair of any
Year 2000 Asset and shall follow the Year 2000 Plan in the
Ordinary Course of Business.
SECTION 4.2. ACCESS AND INVESTIGATION BY BUYER. From the date of
this Agreement to the Closing Date, each Seller shall provide Buyer and its
Representatives full and free access to the Seller's advisors, personnel,
properties, Contracts, books and records, and other documents and data for
the purpose of preparing Buyer to operate the Business. Buyer shall
conduct its investigation in a manner that does not unreasonably interfere
with the normal operations and relationships of the Business. Buyer shall
hold any information obtained from Sellers as part of its investigation in
strict confidence and shall return all such written information upon
written request by Sellers. During Buyer's investigation, Buyer shall have
the right to make copies of such materials as it deems appropriate.
Sellers shall cooperate with Buyer and its Representatives in connection
with conducting and completing an audit of the Business in accordance with
applicable regulations of the Securities and Exchange Commission no later
than 75 days after Closing.
SECTION 4.3. EMPLOYEES.
(a) In connection with this transaction, Buyer shall
consider all of Sellers' management employees for management
positions with Buyer on mutually acceptable terms. Buyer shall
seek employment applications from all employees of Sellers. If
prior to the Closing Date a sufficient number of employees of
each Seller have applied for employment with Buyer to be
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effective immediately after Closing, Buyer shall offer employment
to a sufficient number of employees of each Seller, such that no
more than 49 employees of each Seller do not receive offers of
employment; provided, however, that Buyer may offer employment to
a lesser number of employees of each Seller if it does not
require such Seller to provide the notices required by WARN or
any similar statute. Buyer and Sellers shall cooperate and share
information in connection with the determination of whether such
notices may be required. Each Seller agrees to terminate,
effective upon Closing, each employee to be employed by Buyer at
Closing and to assist Buyer in all reasonable respects in
connection with Buyer's efforts to hire any employees of Sellers.
(b) With respect to any employee of a Seller hired by
Buyer, Buyer shall not assume, honor or be obligated to perform,
and such Seller shall remain solely responsible for, any duties,
responsibilities, commitments or obligations of such Seller with
respect to any qualified or non-qualified Employee Benefit Plan
presently maintained by such Seller or for the benefit of such
Seller's employees or any Contract or commitment concerning any
of such Seller's employees. The terms and conditions of
employment offered by Buyer to an employee of any Seller shall be
determined by, and may be changed at will by, Buyer in its sole
discretion. Each Seller shall provide all notices required by
WARN or any similar statute.
SECTION 4.4. BEST EFFORTS. The Buyer and each Seller shall use its
reasonable best efforts to obtain all consents and approvals necessary to
transfer the Purchased Assets to Buyer in accordance with the terms of this
Agreement, and to bring about the satisfaction of the conditions required
to be performed, fulfilled, and complied with pursuant to this Agreement
and to take or cause to be taken all action, and to do or cause to be done
all things necessary, proper, or advisable under all applicable Legal
Requirements to consummate and make effective the transactions contemplated
by this Agreement as expeditiously as practicable.
SECTION 4.5. DELIVERY OF PROPERTY RECEIVED AFTER CLOSING. From and
after the Closing, Sellers and Shareholders shall promptly transfer to
Buyer, from time to time, any cash or other property received by Sellers or
Shareholders that belongs to Buyer as provided in this Agreement.
SECTION 4.6. EXCLUSIVE DEALING. Sellers and Shareholders shall not,
directly or indirectly, through any Representative or Related Party or
otherwise, solicit or entertain an offer from, negotiate with or in any
manner encourage, discuss, accept, or consider any proposal of any Person
other than Buyer or its Affiliates relating to the acquisition of the
Sellers, their assets, the Business, or their capital stock or other
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securities, in whole or in part, whether directly or indirectly, through
purchase, merger, consolidation, or otherwise (other than sales of
inventory in the Ordinary Course of Business); provided that Sellers may
consider offers and proposals from and negotiate with Roundy's and
SUPERVALU solely with respect to Sellers' assets located at any Roundy's
Store or the SUPERVALU Store, respectively, to the extent reasonably
necessary in connection with the Roundy's Option and the SUPVERVALU Option.
Seller and Shareholders shall not disclose or permit to be disclosed to
Roundy's or SUPERVALU any of the terms, conditions or other aspects of the
transaction contemplated by this Agreement, including the Purchase Price,
unless Sellers shall have received Buyer's prior written consent. Sellers
and Shareholders shall promptly provide notice of their obligations under
this SECTION 4.6 to any Person who contacts such Seller, Shareholder,
Representative or Related Party regarding any such offer or proposal or any
related inquiry.
SECTION 4.7. NON-COMPETE. In consideration of the consummation of
the transactions contemplated by this Agreement, each Seller, Shareholder
(other than Glen B. Catt) and Real Estate Company covenants and agrees that
it, he or she will not, for a period of ten (10) years from the Closing
Date, compete, directly or indirectly, with the Business or with Buyer or
its Affiliates, including but not limited to participating, directly or
indirectly, in the ownership, management, financing or control of, or
acting as a consultant, employee or agent for, or leasing any real property
to, any Person that is engaged or plans to become engaged in the business
of owning or operating a grocery store, supermarket, limited assortment
store or a store that offers grocery products in combination with
pharmaceutical products, general merchandise or other nonfood products,
including grocery superstores (a "GROCERY BUSINESS"); provided, however,
that it, he or she shall not be prohibited from: (a) purchasing real
property which is leased at the time of purchase to any Person operating a
Grocery Business on the leased site; (b) continuing to lease such site to
such Person; or (c) leasing real property to Buyer or any of its
Affiliates. In addition, Sellers may continue their operation of the three
Sav-A-Lot stores at the sites currently operated by Sellers as such stores
as of the date of this Agreement. The geographic scope of the foregoing
covenant shall be the states of Michigan, Indiana, Ohio, Illinois and
Wisconsin. Sellers, Shareholders and Real Estate Company each covenant and
agree that, for a period of two (2) years from the Closing Date, each will
not hire any Person employed by Buyer or its Affiliates at any time during
such period (other than a Terminating Employee) or induce any such employee
to leave such employment or directly or indirectly assist any other Person
in requesting or inducing any such employee to leave his or her employment.
Sellers, Shareholders and Real Estate Company also each covenant and agree
that each will not, from the date of this Agreement and forever afterward,
use or disclose to any Person, any proprietary, secret or confidential
information of the Sellers, including sales information and business and
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trade secrets. If any court of competent jurisdiction finds that the time
period of the foregoing covenants is too lengthy or the scope of the
covenants too broad, the restrictive time period shall be deemed to be the
longest period permissible by law and the scope shall be deemed to comprise
the largest scope permissible by law under the circumstances. It is the
Parties' intent to protect and preserve the business and goodwill of
Sellers to be acquired by Buyer and thus the Parties agree and direct that
the time period and scope of the covenants set forth in this SECTION 4.7 be
the maximum permissible duration and size.
SECTION 4.8. NONCOMPETITION AGREEMENTS. At the Closing, Glen A.
Catt, Glen B. Catt and Dennis Freemen shall execute and deliver
noncompetition agreements in substantially the form attached as EXHIBIT J
(the "NONCOMPETITION AGREEMENTS").
SECTION 4.9. BULK SALES. Subject to SECTION 7.1 below, the Parties
waive any bulk sales or transfer laws, or similar laws, applicable to the
sale of the Purchased Assets and other transactions contemplated by this
Agreement.
SECTION 4.10. SERVICES AGREEMENT. If any of the conditions in
SECTIONS 5.1 (H) OR (I) have not been satisfied as of the Closing Date and
Buyer has not waived the condition on or before the Closing Date, Buyer,
Sellers and Shareholders shall execute and deliver a Services Agreement
with respect to operation of the Stores, on terms and conditions mutually
agreeable to Buyer and Sellers (the "SERVICES AGREEMENT").
SECTION 4.11. NEW REAL PROPERTY LEASES. At the Closing, Buyer and
the Real Estate Company shall execute and deliver real property leases in
substantially the form attached as EXHIBIT K (the "NEW REAL PROPERTY
LEASES").
SECTION 4.12. SHARED EXPENSES. On or before the Closing Date, Buyer
and Sellers each shall pay one-half of all out-of-pocket costs and expenses
associated with (a) Buyer's investigation of potential Environmental
Liability, including but not limited to Buyer retaining environmental
consultants to conduct phase one environmental assessments on Buyer's
behalf; provided that Sellers shall have no obligation to pay in excess of
Thirty Thousand Dollars ($30,000) pursuant to this SECTION 4.12(A), and (b)
the services provided by the Inventory Appraiser.
SECTION 4.13. MESC RATING. At Buyer's option, Buyer will be a
successor to each Seller solely for purposes of the Michigan Employment
Security Act, M.C.L.A. <Section> 421.22. Buyer and Sellers shall take such
actions and execute such documents as are reasonable and necessary to
transfer to Buyer, pursuant to M.C.L.A. <Section> 421.22(d), that portion
of each Seller's rating account as is proportional to the percentage of
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such Seller's assets being acquired by Buyer, which the Parties agree to be
in excess of 75 percent with respect to each Seller.
SECTION 4.14. ROUNDY'S STORES. Sellers shall accept Roundy's
proposal to terminate the Roundy's Supply Agreements effective as of
Closing. Buyer shall at Closing pay two-thirds of the Roundy's Termination
Fee.
SECTION 4.15. COOPERATION. Each Party shall provide to each of the
other Parties such cooperation and information as any of them may
reasonably request in filing any Tax Return, amended Tax Return, or claim
for refund, determining a liability for Taxes, or a right to refund of
Taxes, or in conducting any audit or other proceedings with respect to
Taxes. Such cooperation and information shall include providing copies of
all relevant portions of relevant Tax Returns, together with relevant
accompanying schedules and relevant work papers, relevant documents
relating to rulings or other determinations by taxing authorities, and
relevant records concerning the ownership and tax basis of property which
any such party may possess. Each Party shall make its employees reasonably
available on a mutually convenient basis at its cost to provide an
explanation of any documents or information so provided. Buyer shall make
the services of Eric Buckleitner reasonably available to Sellers to assist
Sellers in connection with the closing of accounting records with respect
to business conducted by Sellers prior to the Closing; provided that
Sellers shall pay Buyer a fee commensurate with (a) the time spent by Mr.
Buckleitner in providing such services to Sellers and (b) the compensation
paid by Buyer to Mr. Buckleitner
SECTION 4.16. CONFIDENTIALITY. The Parties agree to retain in strict
confidence all proprietary, secret or confidential information
("CONFIDENTIAL INFORMATION") furnished by either Party (the "DISCLOSING
PARTY") to another Party (the "RECEIVING PARTY") with the same degree of
care as the Receiving Party retains its own confidential information of a
similar nature and not to disclose any Confidential Information to any
third party, except as required by law, sought by subpoena, discovery
device or other legal process, without the prior written consent of the
Disclosing Party; provided, however, that any such Confidential Information
may be disclosed to any of the Receiving Party's advisors or
representatives whom the Receiving Party reasonably determines need to know
such information in connection with this Agreement. Confidential
Information does not include information which (a) is or at any time
becomes generally available to the public other than as a result of a
disclosure by the Receiving Party in violation of this Agreement; (b) was
available to a Receiving Party on a nonconfidential basis prior to its
disclosure by the Disclosing Party; or (c) at any time becomes available to
a Receiving Party on a nonconfidential basis from a Person who is not
otherwise known by the Receiving Party to be bound by a confidentiality
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agreement with the Disclosing Party or is not otherwise known by the
Receiving Party to be prohibited from transmitting the information. Upon
termination of this Agreement for any reason, all Confidential Information
shall be returned to the Disclosing Party or affirmatively destroyed upon
the written request of the Disclosing Party. Return or destruction of such
Confidential Information shall in no event relieve the Receiving Party of
any obligations of confidentiality contained herein respecting such
Confidential Information. The obligations of the Parties set forth in this
SECTION 4.16 shall survive termination of this Agreement.
ARTICLE 5 - CONDITIONS TO OBLIGATION TO CLOSE
SECTION 5.1. CONDITIONS TO OBLIGATION OF BUYER. Buyer's obligation
to purchase the Purchased Assets and to take the other actions required to
be taken by Buyer at the Closing is subject to the satisfaction, at or
before the Closing, of each of the following conditions (any of which may
be waived by Buyer, in whole or in part):
(a) The representations and warranties set forth in ARTICLE
2 of this Agreement, individually and collectively, shall have
been accurate in all material respects as of the date of this
Agreement and shall be accurate in all material respects as of
the Closing Date as if made on the Closing Date;
(b) Sellers and each Shareholder shall have performed and
complied in all material respects with all respective covenants
and obligations under this Agreement;
(c) Sellers shall have delivered to Buyer in form and
substance reasonably acceptable to Buyer: (i) the written opinion
of Sellers' legal counsel; (ii) a certificate stating that the
conditions specified in SECTIONS 5.1(A) and (B) have been
satisfied; and (iii) such other certificates, instruments or
documents as Buyer may reasonably request;
(d) There shall not be any Proceeding or Order pending or
Threatened or any Legal Requirement in effect that would prevent
the consummation of any of the transactions contemplated by this
Agreement or which could result in any Adverse Consequence
against Buyer or Sellers if the transactions contemplated by this
Agreement were consummated;
(e) Except as contemplated by this Agreement, there shall
not have been any material adverse change in the Business,
financial or otherwise, from the date of this Agreement to the
Closing Date;
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(f) Buyer shall be satisfied with the results of its
investigation of potential Environmental Liability, including its
review of the Disclosure Schedule delivered pursuant to SECTION
2.27;
(g) All Governmental Authorizations from any Governmental
Body that are necessary for the consummation of the transactions
contemplated by this Agreement, including pursuant to the Hart-
Scott-Rodino Antitrust Improvement Act, shall have been received
and shall be in full force and effect. All necessary filings,
declarations, and notices of Buyer and Sellers with or to any
Governmental Body shall also have been made or given;
(h) All authorizations, consents, and approvals by any
third parties (other than Governmental Authorizations from any
Governmental Body) that are necessary for the consummation of the
transactions contemplated by this Agreement shall have been
received and shall be in full force and effect, including all
consents and estoppel certificates in form and substance
satisfactory to Buyer from any franchisor relating to the Dairy
Queen, any lessor relating to any Existing Real Property Lease or
any personal property lease (but excluding the consent of
Loblaw's in connection with the President's Choice license), and
any licensor with respect to any ATM, software, hardware or
equipment license. All necessary filings, declarations, and
notices of Buyer and Sellers with or to such third parties shall
also have been made or given;
(i) All applicable Governmental Bodies shall have
authorized or approved the transfer to Buyer of all food stamp
licenses, WIC licenses, lottery licenses, MLCC licenses, pharmacy
licenses, transportation licenses and all other Governmental
Authorizations necessary for Buyer to operate the Business in the
manner operated by Sellers prior to the Closing Date shall have
been received and shall be in full force and effect;
(j) Excluding Buyer's obligation to pay the Roundy's
Termination Fee in accordance with SECTION 4.14 of this
Agreement, Sellers' or Buyer's obligations, liabilities,
responsibilities, commitments, and rights with respect to any
supply agreements, customer agreements or leases with Roundy's,
SUPERVALU, or their Affiliates, including the termination or
waiver of all options relating to the purchase of all or any
portion of the Business, shall have been resolved to the
satisfaction of Buyer;
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(k) Sellers shall have paid all indebtedness and
liabilities necessary to obtain the release of any Encumbrance on
the Purchased Assets;
(l) Sellers shall have delivered to Buyer 12th period
financial statements as of and for the period ended December 5,
1998;
(m) Catt's and Real Estate Company shall have executed and
delivered the New Real Property Leases; and
(n) Glen A. Catt, Glen B. Catt and Dennis Freemen shall
have executed and delivered the Noncompetition Agreements.
SECTION 5.2. CONDITIONS TO OBLIGATION OF SELLERS. Sellers'
obligation to sell the Purchased Assets and to take the other actions
required to be taken by Sellers at the Closing is subject to the
satisfaction, at or before the Closing, of each of the following conditions
(any of which may be waived by Sellers, in whole or in part):
(a) The representations and warranties set forth in ARTICLE
3 of this Agreement, individually and collectively, shall have
been accurate in all material respects as of the date of this
Agreement and shall be accurate in all material respects as of
the Closing Date;
(b) Buyer shall have performed and complied in all material
respects with all of its covenants and obligations under this
Agreement;
(c) Buyer shall have delivered to Sellers in form and
substance reasonably acceptable to Sellers: (i) a written opinion
of Buyer's legal counsel; (ii) a certificate stating that each of
the conditions specified in SECTIONS 5.2(A) and (B) have been
satisfied; and (iii) such other certificates, instruments or
documents as Sellers may reasonably request;
(d) There shall not be any Proceeding or Order pending or
Threatened or any Legal Requirement in effect that would prevent
the consummation of any of the transactions contemplated by this
Agreement or which could result in any Adverse Consequence
against Buyer or Sellers if the transactions contemplated by this
Agreement were consummated;;
(e) All Governmental Authorizations from any Governmental
Body that are necessary for the consummation of the transactions
contemplated by this Agreement, including pursuant to the Hart-
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Scott-Rodino Antitrust Improvement Act, shall have been received
and shall be in full force and effect. All necessary filings,
declarations, and notices of Buyer and Sellers with or to any
Governmental Body shall also have been made or given;
(f) Buyer shall have executed and delivered the New Real
Property Leases; and
(g) Sellers' obligations, liabilities, responsibilities,
commitments, and rights with respect to any supply agreements,
customer agreements or leases with Roundy's, SUPERVALU, or their
Affiliates, including the termination or waiver of all options
relating to the purchase of all or any portion of the Business,
shall have been resolved to the satisfaction of Sellers, to the
extent that any resolution in which Buyer is involved would
adversely affect the obligations, liabilities, responsibilities,
commitments, or rights of Sellers after Closing.
ARTICLE 6 - TERMINATION
SECTION 6.1. TERMINATION EVENTS. This Agreement may be terminated
by (a) mutual written consent of Buyer and Sellers or (b) written notice
given before or at the Closing by:
(i) Buyer or Sellers if a material Breach of any provision
of this Agreement has been committed by the other party and the
Breach has not been waived or cured within 10 days following
written notice of the Breach;
(ii) Buyer if any of the conditions in SECTION 5.1 have not
been satisfied as of the Closing Date or if satisfaction of such
a condition is or becomes impossible (other than through the
failure of Buyer to comply with its obligations under this
Agreement) and Buyer has not waived the condition on or before
the Closing Date;
(iii) Sellers if any of the conditions in SECTION 5.2 have
not been satisfied as of the Closing Date or if satisfaction of
such a condition is or becomes impossible (other than through the
failure of any Sellers or Shareholder to comply fully with their
respective obligations under this Agreement) and Sellers have not
waived the condition on or before the Closing Date;
(iv) Buyer if the Closing has not occurred (other than
through the failure of Buyer to comply fully with its obligations
under this Agreement) on or before March 29, 1999, or such later
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date as the conditions in SECTION 5.2(E) of this Agreement have
been fulfilled or waived by Sellers, but no later than May 31,
1999, unless Buyer and Sellers agree in writing to such later
date; or
(v) Sellers if the Closing has not occurred (other than
through the failure of Sellers, Shareholders or the Real Estate
Company to comply fully with their respective obligations under
this Agreement) on or before March 29, 1999, or such later date
as the conditions in SECTION 5.1(G)(H)(I) AND (J) of this
Agreement have been fulfilled or waived by Buyer, but no later
than May 31, 1999, unless Buyer and Sellers agree in writing to
such later date.
SECTION 6.2. EFFECT OF TERMINATION.
(a) If this Agreement is terminated pursuant to SECTION
6.1, all further obligations of the Parties under this Agreement
will terminate and no Party shall have any further obligation to
the other Party; provided, however, if any Party shall be in
Breach of this Agreement prior to termination, the other Party's
right to pursue all legal remedies (including pursuant to SECTION
6.2(B) below) will survive such termination unimpaired.
(b) If Buyer on the one hand, or Sellers or Shareholders on
the other, terminate this Agreement pursuant to SECTION 6.1, and
if the termination by the terminating party (the "NON-DEFAULTING
PARTY") is based upon a material Breach of any representation,
warranty, covenant or agreement by the other Party (the
"DEFAULTING PARTY") arising from a willful act or omission by the
Defaulting Party, the Defaulting Party shall pay the Non-
Defaulting Party a termination fee in the amount of Five Million
Dollars ($5,000,000) within 10 days after receipt of written
demand therefor.
ARTICLE 7 - INDEMNIFICATION
SECTION 7.1. INDEMNIFICATION AND REIMBURSEMENT BY SELLERS,
SHAREHOLDERS AND REAL ESTATE COMPANY. Sellers and Shareholders (and Real
Estate Company with respect solely to SECTION 7.1(B) AND (C) and the
representations, warranties, covenants and obligations of Real Estate
Company) jointly and severally shall indemnify and hold harmless Buyer and
its Representatives and Affiliates ("BUYER'S INDEMNIFIED PARTIES"), and
shall reimburse Buyer's Indemnified Parties on demand, for all Adverse
Consequences arising from or related to (a) any Breach by any Seller,
Shareholder or Real Estate Company of any representation, warranty,
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covenant or obligation of any Seller, Shareholder or Real Estate Company in
this Agreement or any other instrument or document executed or delivered by
any Seller, Shareholder or Real Estate Company to Buyer pursuant to this
Agreement; (b) any and all liabilities and obligations of any of the
Sellers, Shareholders, Real Estate Company or their Affiliates of any
nature, whether accrued, absolute, contingent, or otherwise (including
without limitation Tax liabilities), other than the Assumed Liabilities;
(c) any failure to comply with any applicable bulk sale and transfer laws,
or similar laws, relating to this Agreement and any claims against Buyer by
creditors of any Seller (except with respect to the Assumed Liabilities);
(d) any use of the Purchased Assets by any Seller or Shareholder on or
before the Closing Date or the conduct of the Business on or before the
Closing Date; and (e) the enforcement of indemnification rights under this
ARTICLE 7.
SECTION 7.2. INDEMNIFICATION AND REIMBURSEMENT BY BUYER. Buyer
shall indemnify and hold harmless Sellers and their Representatives and
shall reimburse Sellers and their Representatives for all Adverse
Consequences arising from or related to (a) any Breach by Buyer of any
representation, warranty, covenant or obligation of Buyer in this Agreement
or in any other instrument or document delivered by Buyer to Sellers
pursuant to this Agreement; (b) any use of the Purchased Assets by Buyer
after the Closing Date or the conduct of the Business after the Closing
Date; and (c) the enforcement of indemnification rights under this
ARTICLE 7.
SECTION 7.3. INDEMNIFICATION PROCEDURES.
(a) Third-Party Claims.
(i) Promptly after receipt by a Person entitled to be
indemnified under this ARTICLE 7 (an "INDEMNIFIED PARTY") of
notice of the commencement of any Proceeding against it,
such Indemnified Party shall, if a claim for indemnification
is to be made against a Party (an "INDEMNIFYING PARTY")
under this ARTICLE 7, give notice to the Indemnifying Party
of the commencement of such Proceeding. The failure to
promptly notify the Indemnifying Party shall not relieve the
Indemnifying Party of any liability that it may have to an
Indemnified Party except to the extent that the defense of
such action was irreparably and materially prejudiced by the
Indemnifying Party's failure to provide prompt notice.
(ii) If any Proceeding is brought against an
Indemnified Party and it gives notice to the Indemnifying
Party of the commencement of such Proceeding, the
Indemnifying Party shall, unless the claim involves Taxes,
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be entitled to participate in such Proceeding and, to the
extent that it wishes (unless (A) the Indemnifying Party is
also a party to such Proceeding and the Indemnified Party
determines in good faith that joint representation would be
inappropriate or (B) the Indemnifying Party fails to provide
reasonable assurances to the Indemnified Party of its
financial capacity to defend such Proceeding and provide
indemnification with respect to such Proceeding), to assume
the defense of such Proceeding with counsel satisfactory to
the Indemnified Party. Following a proper assumption of
defense by an Indemnifying Party, as long as the
Indemnifying Party diligently conducts such defense it shall
not be liable for any subsequent fees of legal counsel or
other expenses incurred by the Indemnified Party in
connection with the defense of such Proceeding. If the
Indemnifying Party assumes the defense of a Proceeding, (A)
it will be conclusively established for purposes of this
Agreement that the claims made in that Proceeding are within
the scope of and subject to indemnification; (B) no
compromise or settlement of such claims may be effected by
the Indemnifying Party without the Indemnified Party's
written consent unless (x) there is no finding or admission
of any violation of Legal Requirements or any violation of
the rights of any Person and no effect on any other claims
that may be made by or against the Indemnified Party, and
(y) the sole relief provided is monetary damages that are
paid in full by the Indemnifying Party concurrently with the
compromise or settlement; and (C) the Indemnifying Party
will have no liability with respect to any compromise or
settlement of such claims effected without its consent. If
notice is given to an Indemnifying Party of the commencement
of any Proceeding and the Indemnifying Party does not within
ten days give notice to the Indemnified Party of its
election to assume the defense of such Proceeding, the
Indemnifying Party will be bound by any determination made
in such Proceeding or any compromise or settlement effected
by the Indemnified Party.
(iii) Notwithstanding the foregoing, if an Indemnified
Party determines in good faith that there is a reasonable
probability that a Proceeding may adversely affect it or its
Affiliates other than as a result of monetary damages for
which it would be entitled to indemnification under this
Agreement, the Indemnified Party may, by notice to the
Indemnifying Party, assume the exclusive right to defend,
compromise or settle such Proceeding, but the Indemnifying
Party will not be bound by any determination of a Proceeding
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so defended or any compromise or settlement effected without
its consent (which may not be unreasonably withheld).
(iv) The Parties shall make available to each other and
each other's legal counsel and other professional advisors
all of its or his books and records reasonably relating to a
third-party claim and each Party shall render to the other
assistance as may be reasonably required in order to insure
the proper and adequate defense of a third-party claim.
(v) Each Party hereby consents to the non-exclusive
jurisdiction of any court in which a Proceeding is brought
against any Indemnified Party for purposes of any claim that
an Indemnified Party may have under this Agreement with
respect to such Proceeding or the matters alleged therein.
(b) Other Claims. A claim for indemnification for any
matter not involving a third-party claim may be asserted by
notice to the Party from whom indemnification is sought.
SECTION 7.4. LIMITATIONS ON INDEMNIFICATION. The indemnification by
Seller and Shareholders provided pursuant to this ARTICLE 7 shall be
limited as follows:
(a) Neither Seller nor any Shareholder shall be liable to
Buyer's Indemnified Parties for any indemnification pursuant to
this ARTICLE 7 to the extent such indemnification, when
aggregated with all other indemnification payments made by Seller
or Shareholders pursuant to the provisions of this ARTICLE 7,
exceeds Twenty Million Dollars ($20,000,000); provided that this
SECTION 7.4(A) shall not apply to any Environmental Liability or
any Adverse Consequences arising from or relating to any Breach
by any Seller or Shareholder of any representation or warranty
contained in SECTIONS 2.6, 2.10, 2.17 OR 2.25.
(b) Neither Seller nor any Shareholder shall be liable to
Buyer's Indemnified Parties for any indemnification claims
pursuant to this ARTICLE 7 until the aggregate amount of the net
liability of such indemnification claims, calculated pursuant to
subparagraph (c), exceeds Two Hundred Fifty Thousand Dollars
($250,000). Upon reaching such amount, Seller and the
Shareholders shall be liable only for those amounts in excess of
such amount up to the maximum amount provided in subparagraph (a)
of this Section;
(c) For purposes of this ARTICLE 7, in computing any
individual or aggregate payment for indemnification to any of
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Buyer's Indemnified Parties, the amount of each such liability
shall be deemed to be an amount net of (i) any Tax benefit
realized by Buyer, as determined by the accountant of Buyer using
reasonable assumptions and methods of valuation consistent with
Buyer's then current accounting policies; (ii) any insurance
proceeds realized by any of Buyer's Indemnified Parties; and
(iii) any indemnity or contribution paid by any third party to
any of Buyer's Indemnified Parties with respect thereto; and
(d) Neither Seller nor any Shareholder shall be liable to
any of Buyer's Indemnified Parties for any indemnification
pursuant to SECTION 7.1(A) above for any claims brought by
Buyer's Indemnified Parties after one (1) year from the Closing
Date, except for Adverse Consequences arising from or related to
(i) any Breach by Sellers or Shareholders of any representation
or warranty contained in SECTIONS 2.6, 2.10, 2.17 OR 2.25 for
which a claim for indemnity may be made any time before
expiration of the applicable statute of limitations; (ii) any
Breach by Sellers or Shareholders of any representation or
warranty contained in SECTION 2.27 for which a claim for
indemnity may be made any time before expiration of six years
after the Closing Date; and (iii) any claim asserting that
Sellers or Shareholders had actual knowledge that a
representation or warranty was materially false when made or was
made with the intent to deceive, for which a claim for indemnity
may be made any time before expiration of the applicable statute
of limitations.
SECTION 7.5. EXCLUSIVE REMEDY. The indemnification provided by this
ARTICLE 7 shall be the sole and exclusive monetary remedy of the Parties
after Closing with respect to the matters covered by this ARTICLE 7, except
that nothing in this Section shall limit in any way the availability of
specific performance, injunctive relief, or other equitable remedies to
which any Party may otherwise be entitled.
ARTICLE 8 - DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings specified or referred to in this ARTICLE 8:
"ACCRUED VACATION" has the meaning set forth in EXHIBIT E of this
Agreement.
"ADVERSE CONSEQUENCE" means any loss, cost, liability (including any
Environmental Liability), penalty, Tax, claim, damage or expense (including
cost of investigation, defense, settlement and reasonable attorneys' and
other professional fees).
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"AFFILIATE" means, with respect to any particular Person, (a) any
Person controlling, controlled by or under common control with such Person,
whether by ownership or control of voting securities, by contract or
otherwise, (b) any Person owning or controlling 10% or more of the
outstanding voting securities of such other Person, (c) any partner,
officer, director, employee or shareholder of such Person or any parent,
spouse, child, brother, sister or other relative with a relationship (by
blood, marriage or adoption) not more remote than first cousin of any of
the foregoing, or (d) any liquidating trust, trustee or other similar
person or entity for any person.
"ASSIGNED CONTRACTS" has the meaning set forth in SECTION 1.1(C) of
this Agreement.
"ASSUMED LIABILITIES" has the meaning set forth in SECTION 1.3(C) of
this Agreement.
"BALANCE SHEET" has the meaning set forth in SECTION 2.3 of this
Agreement.
"BREACH" means, as to any representation, warranty, covenant,
obligation or other provision of this Agreement or any instrument or
document delivered pursuant to this Agreement, (a) any inaccuracy in, or
any failure to perform or comply with, such representation, warranty,
covenant, obligation or other provision or (b) any claim by any Person or
other occurrence or circumstance that is or was inconsistent with such
representation, warranty, covenant, obligation or other provision, in
either case regardless of whether deliberate, reckless, negligent, innocent
or unintentional.
"BUSINESS" has the meaning set forth in the second paragraph of this
Agreement.
"BUSINESS LOCATIONS" has the meaning set forth in SECTION 1.1 of this
Agreement.
"BUYER" has the meaning set forth in the first paragraph of this
Agreement.
"BUYER'S LETTER OF INTENT" shall mean the Proposal to Purchase Assets
of Glen's Markets, Inc. dated December 23, 1998.
"CASH PAYMENT" has the meaning set forth in SECTION 1.3(A) of this
Agreement.
"CLOSING" has the meaning set forth in SECTION 1.6 of this Agreement.
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"CLOSING BALANCE SHEET " has the meaning set forth in SECTION 1.4 of
this Agreement.
"CLOSING DATE" means the date and time as of which the Closing
actually takes place.
"CLOSING INVENTORY VALUATION " has the meaning set forth in SECTION
1.4(A) of this Agreement.
"CONTRACT" means any agreement, contract, obligation, promise or
undertaking (whether written or oral and whether express or implied) that
is legally binding.
"CURRENT PURCHASED ASSETS" means total Purchased Assets, less goodwill
and fixed assets.
"DAIRY QUEEN" has the meaning set forth in SECTION 1.1 of this
Agreement.
"DISCLOSURE SCHEDULE" has the meaning set forth in SECTION 2.1 of the
Agreement.
"DISTRIBUTION CENTER" has the meaning set forth in SECTION 1.1 of this
Agreement.
"EMPLOYEE BENEFIT PLAN" means any "employee pension benefit plan" or
"employee welfare benefit plan" as defined under ERISA, any incentive
compensation plan, benefit plan for retired employees, plan or Contract
providing for bonuses, pensions, profit-sharing, stock options, stock
purchase rights, deferred compensation, insurance or retirement benefits of
any nature, in each case whether written or oral.
"ENCUMBRANCE" means any charge, claim, community property interest,
condition, equitable interest, mortgage, lien, option, pledge, security
interest, right of first refusal or restriction of any kind, including any
restriction on use, voting (in the case of any security), transfer, receipt
of income or exercise of any other attribute of ownership.
"ENVIRONMENT" means soil, land surface or subsurface strata, surface
waters (including navigable waters and ocean waters), groundwaters,
drinking water supply, stream sediments, ambient air (including indoor
air), plant and animal life and any other environmental medium or natural
resource.
"ENVIRONMENTAL LAW" means any Legal Requirement designed: (a) to
advise appropriate authorities, employees and the public of intended,
threatened or actual releases of pollutants or hazardous substances or
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materials, violations or discharge limits, or other prohibitions and of the
commencements of activities, such as resource extraction or construction,
that could have significant impact on the Environment; (b) to prevent or
acceptably minimize the release or emission of pollutants or hazardous
substances or materials into the Environment; (c) to reduce the quantities,
prevent the release and minimize the hazardous characteristics of wastes
that are generated; (d) to regulate the generation, treatment, storage,
handling or disposal of hazardous substances; (e) to assure that products
are designed, formulated, packaged or used so that they do not present
unreasonable risks to human health or the Environment when used or disposed
of; (f) to protect resources, species or ecological amenities; (g) to
acceptably minimize the risks inherent in transportation of hazardous
substances, pollutants, oil or other potentially harmful substances; (h) to
clean up pollutants that have been released, prevent the threat of release
or pay the costs of such clean up or prevention; (i) to make responsible
parties pay private parties, or groups of them, for damages done to their
health or Environment, or to permit self-appointed representatives of the
public interest to recover for injuries done to public assets; or (j) to
regulate in any manner the potential impact of an activity on the
Environment.
"ENVIRONMENTAL LIABILITY" means any Adverse Consequence arising from
or relating to Environmental Law or Occupational Safety and Health Law,
including in connection with (a) any Environmental, health or safety
matters or conditions (including on-site or off-site contamination,
occupational safety and health and regulation of chemical substances or
products); and (b) any responsibility for response costs, corrective action
or actions to achieve compliance, including any cleanup, removal,
containment or other remediation or response action ("CLEANUP") required by
applicable Environmental Law or Occupational Safety and Health Law (whether
or not such Cleanup has been required or requested by any Governmental Body
or any other Person) and for any natural resource damages. The terms
"removal," "remedial," and "response action" include the types of
activities covered by the United States Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. <Section> 9601 et seq.,
as amended, or any similar state law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCLUDED ASSETS" has the meaning set forth in SECTION 1.2 of this
Agreement.
"EXCLUDED CONTRACT" means each:
(i) collective bargaining agreement or other Contract to or
with any labor union or other employee representative of a group
of employees;
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(ii) joint venture, partnership, or other Contract (however
named) that following Closing would involve a sharing of profits,
losses, costs, or liabilities by Buyer with any other Person;
(iii) Contract that could in any way purport to restrict the
business activity of Buyer or limit the freedom of Buyer to
engage in any line of business or to compete with any Person
after Closing;
(iv) Contract (A) that contains an effective and outstanding
power of attorney and (B) a copy of which is not included in
SCHEDULE 2.18;
(v) Contract that contains or provides for an express
undertaking that following Closing would require Buyer to be
responsible for consequential, punitive or exemplary damages; and
(vi) Contract (A) that was entered into by any Seller other
than in the Ordinary Course of Business and (B) a copy of which
is not included in SCHEDULE 2.18.
"EXCLUDED LIABILITIES" has the meaning set forth in SECTION 1.3(D) of
this Agreement.
"EXISTING REAL PROPERTY LEASE" has the meaning set forth in SECTION
1.1(D) of this Agreement.
"FINAL ADJUSTED INVENTORY VALUE" has the meaning set forth in EXHIBIT
G.
"FINANCIAL STATEMENTS" has the meaning set forth in SECTION 2.3 of
this Agreement.
"GAAP" means generally accepted accounting principles.
"GENERAL OFFICE" has the meaning set forth in SECTION 1.1 of this
Agreement.
"GOVERNMENTAL AUTHORIZATION" means any approval, consent, license,
permit, waiver or other authorization issued, granted, given or otherwise
made available by or under the authority of any Governmental Body or
pursuant to any Legal Requirement.
"GOVERNMENTAL BODY" means any: (a) nation, state, county, city, town,
village, district or other jurisdiction of any nature; (b) federal, state,
local, municipal, foreign or other government; (c) governmental or quasi-
governmental authority of any nature (including any governmental agency,
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branch, department, official or entity and any court or other tribunal);
(d) multi-national organization or body; or (e) body exercising, or
entitled or purporting to exercise, any administrative, executive,
judicial, legislative, police, regulatory or Taxing authority or power of
any nature.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 7.3(A) of
this Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in SECTION 7.3(A) of
this Agreement.
"INITIAL ADJUSTED INVENTORY VALUE" has the meaning set forth in
EXHIBIT G.
"INTELLECTUAL PROPERTY ASSETS" has the meaning set forth in SECTION
1.1(E) of this Agreement.
"INTERIM FINANCIAL STATEMENTS" has the meaning set forth in SECTION
2.3 of this Agreement.
"INVENTORY" has the meaning set forth in SECTION 1.1(A) of this
Agreement.
"INVENTORY VALUATION METHOD" means the method agreed upon by Buyer and
Sellers for determining the value of the Inventory, as set forth in EXHIBIT
G.
"IRS" means the Internal Revenue Service.
"KNOWLEDGE" means, with respect to any Person, the actual awareness of
a particular fact or other matter; provided, however, that "Sellers'
Knowledge" or "Knowledge of Sellers" means the actual awareness of Glen A.
Catt, Glen B. Catt, Jesse Root, Eric Buckleitner, Dennis Freeman or any
director or officer of any Seller and the awareness that such a person
should have as a reasonably prudent business person.
"LEGAL REQUIREMENT" means any federal, state, local, municipal,
foreign, international, multinational or other constitution, law,
ordinance, statute, code, regulation or treaty.
"MATERIAL ADVERSE EFFECT" means a material and adverse effect upon the
Purchased Assets and the Assumed Liabilities, taken as a whole, and
comprising the Business.
"MATERIAL ASSIGNED CONTRACT" means each Assigned Contract that
following Closing would require capital expenditures by Buyer in excess of
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$5,000 or involve performance of services by or delivery of goods or
materials to Buyer of an amount or value in excess of $5,000.
"MLCC" means the Michigan Liquor Control Commission.
"MULTI-EMPLOYER RETIREMENT PLAN" has the meaning set forth in SECTION
3(37)(A) of ERISA.
"NEW REAL PROPERTY LEASES" has the meaning set forth in SECTION 4.11
of this Agreement.
"NON-ASSIGNABLE PRIVATE LABEL INVENTORY" means any President's Choice
or other private label inventory to which Sellers' shall not have obtained
as of Closing a consent to assignment or other agreement reasonably
acceptable to Buyer authorizing Buyer to sell the inventory after Closing.
"NONCOMPETITION AGREEMENT" has the meaning set forth in SECTION 4.7 of
this Agreement.
"NORMALIZED WORKING CAPITAL LIABILITIES" means all accounts payable
(including bank overdrafts) and accrued expenses, excluding (a) any accrued
vacation or flex-time other than the Accrued Vacation and (b) all federal,
state and local taxes identified on the Balance Sheet.
"NORMALIZED WORKING CAPITAL LIABILITIES LIMIT" means (a) Thirteen
Million Dollars ($13,000,000) if neither SUPERVALU nor Roundy's exercises
the SUPERVALU Option or the Roundy's Option, respectively; (b) Thirteen
Million Dollars ($13,000,000) less the amount of Normalized Working Capital
Liabilities attributable to the SUPERVALU Store, if SUPERVALU exercises the
SUPERVALU Option; and (c) Thirteen Million Dollars ($13,000,000) less the
amount of Normalized Working Capital Liabilities attributable to each
Roundy's Store as to which Roundy's shall have exercised the Roundy's
Option.
"OCCUPATIONAL SAFETY AND HEALTH LAW" means any Legal Requirement
designed to provide safe and healthful working conditions and to reduce
occupational safety and health hazards, and any program, whether
governmental or private, designed to provide safe and healthful working
conditions.
"ORDER" means any award, decision, injunction, judgment, order,
ruling, subpoena or verdict entered, issued, made or rendered by any court,
administrative agency or other Governmental Body or by any arbitrator.
"ORDINARY COURSE OF BUSINESS" means in accordance with Sellers'
historical and customary day-to-day practices with respect to the activity
in question.
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"ORGANIZATIONAL DOCUMENTS" means the complete charter and the bylaws
of Sellers, including all amendments.
"PARTY OR PARTIES" has the meaning set forth in the first paragraph of
this Agreement.
"PERSON" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company,
joint venture, estate, trust, association, organization or other entity or
Governmental Body.
"PHARMACIES" has the meaning set forth in SECTION 1.1 of this
Agreement.
"PROCEEDING" means any action, arbitration, audit, hearing,
investigation, litigation or suit (whether civil, criminal, administrative,
investigative or informal) commenced, brought, conducted or heard by or
before, or otherwise involving, any Governmental Body or arbitrator.
"PURCHASE PRICE" has the meaning set forth in SECTION 1.3 of this
Agreement.
"PURCHASED ASSETS" has the meaning set forth in SECTION 1.1 of this
Agreement.
"REAL ESTATE COMPANY" has the meaning set forth in the first paragraph
of this Agreement.
"REAL PROPERTY" has the meaning set forth in SECTION 2.12 of this
Agreement.
"REAL PROPERTY LEASES" means Existing Real Property Leases and New
Real Property Leases.
"REGULATED SUBSTANCE" means any substance listed, defined, designated
or classified as hazardous, toxic, radioactive or dangerous, or otherwise
regulated, under any Environmental Law.
"RELATED PERSON" means with respect to a particular individual: (a)
each other member of such individual's Family; (b) any Person that is
directly or indirectly controlled by any one or more members of such
individual's Family; (c) any Person in which members of such individual's
Family hold (individually or in the aggregate) a Material Interest; and (d)
any Person with respect to which one or more members of such individual's
Family serves as a director, officer, partner, executor or trustee (or in a
similar capacity). For purposes of this definition, (a) the "FAMILY" of an
individual includes (i) the individual; (ii) the individual's spouse;
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(iii) any other natural person who is related to the individual or the
individual's spouse within the second degree; and (iv) any other natural
person who resides with such individual; and (b) "MATERIAL INTEREST" means
direct or indirect beneficial ownership (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of voting securities or other voting
interests representing at least 20% of the outstanding voting power of a
Person or equity securities or other equity interests representing at least
20% of the outstanding equity securities or equity interests in a Person.
"REPRESENTATIVE" means with respect to a particular Person, any
director, officer, employee, agent, consultant, advisor or other
representative of such Person, including legal counsel, accountants and
financial advisors.
"RESTRICTED EVENT" means (a) any payment or increase of any bonuses,
salaries or other compensation to any employee who is not a shareholder,
officer or director of Sellers (except in the Ordinary Course of Business);
(b) the entry into any employment, severance or similar Contract with any
director, officer or employee; (c) the adoption of, or the change in the
payments to or benefits under, any Employee Benefit Plan for or with any
employees of Sellers; (d) any damage to or destruction or loss of any
property or assets of Sellers, whether or not covered by insurance,
materially and adversely affecting the properties, assets, business,
financial condition or prospects of Sellers; (e) the entry into,
termination of or receipt of notice of termination of any Contract with any
Person other than Buyer or its Affiliates with a total remaining commitment
by Sellers of more than $10,000 or to supply to any Business Location any
goods or services with a value in excess of $10,000; (f) any sale, lease or
other disposition of any property or asset of Sellers (other than sales of
inventory or renewals or replacements of equipment in the Ordinary Course
of Business) or the imposition of any Encumbrance on any material property
or asset of Sellers; (g) the cancellation or waiver of any claims or rights
with a value to Sellers in excess of $10,000; (h) any material change in
the accounting methods used by Sellers; (i) any capital expenditure in
excess of $10,000; (j) any change in Sellers' policies, procedures or
practices with respect to earning, paying, accruing or taking of employee
vacation or flex-time; or (k) any commitment or Contract, whether written
or oral, to do any of the foregoing.
"ROUNDY'S" means Roundy's, Inc.
"ROUNDY'S OPTION" means the right of Roundy's to purchase certain
assets of Sellers located at and used exclusively in the operation of the
Business at the Roundy's Stores, as set forth in the Roundy's Supply
Agreements.
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"ROUNDY'S SUPPLY AGREEMENTS" means the supply agreements between
Glen's and Roundy's with respect to each Roundy's Store, copies of which
are attached hereto as EXHIBIT L.
"ROUNDY'S STORES" means the Stores located in Alpena, Cadillac, North
Petoskey and South Petoskey, Michigan, which are currently supplied by
Roundy's pursuant to the Roundy's Supply Agreements.
"ROUNDY'S TERMINATION FEE" means an amount equal to the net present
value as of Closing of Sellers' remaining required product purchases under
the Roundy's Supply Agreements at a 2% net margin discounted by 10% through
Sellers' base rent periods. Product purchases shall be estimated to
increase at a 2% per year inflation rate. The aggregate amount of the
Roundy's Termination Fee for all Roundy's Stores shall not exceed Three
Million Four Hundred Twenty Five Thousand Dollars ($3,425,000).
"SAV-A-LOT STORES" means the three stores operated by Sellers under
the "Sav-A-Lot" name as of September 12, 1998.
"SELLERS" has the meaning set forth in the first paragraph of this
Agreement.
"SERVICES AGREEMENT" has the meaning set forth in SECTION 4.10 of this
Agreement.
"SHAREHOLDERS" has the meaning set forth in the first paragraph of
this Agreement.
"STORES" has the meaning set forth in SECTION 1.1 of this Agreement.
"SUPERVALU" means SUPERVALU, INC.
"SUPERVALU ADJUSTMENT AMOUNT" means the amount paid by SUPERVALU to
Sellers in connection with SUPERVALU's purchase of the assets associated
with the SUPERVALU Store pursuant to SUPERVALU's exercise of the SUPERVALU
Option.
"SUPERVALU OPTION" means the right of SUPERVALU to purchase certain
assets of Sellers located at and used exclusively in the operation of the
Business at the SUPERVALU Store, as set forth in the SUPERVALU Supply
Agreement.
"SUPERVALU SUPPLY AGREEMENT" means the supply agreement between Glen's
and SUPERVALU with respect to the SUPERVALU Store, a copy of which is
attached hereto as EXHIBIT M.
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<PAGE>
"SUPERVALU STORE" means the Store located in Sault St. Marie,
Michigan, which is currently supplied by SUPERVALU pursuant to the
SUPERVALU Supply Agreement.
"TAX" means any tax (including, without limitation, any income tax,
capital gains tax, value-added tax, sales tax, property tax, gift tax or
estate tax), levy, assessment, tariff, duty (including any customs duty),
deficiency or other fee, and any related charge or amount (including any
fine, penalty or interest), imposed, assessed or collected by or under the
authority of any Governmental Body or payable pursuant to any tax-sharing
agreement or any other Contract relating to the sharing of payment of any
such tax, levy, assessment, tariff, duty, deficiency or fee.
"TAX RETURN" means any return (including, without limitation, any
information return), report, statement, schedule, notice, form or other
document or information filed with or submitted to, or reported to be filed
with or submitted to, any Governmental Body in connection with the
determination, assessment, collection or payment of any Tax or in
connection with the administration, implementation or enforcement of or
compliance with any Legal Requirement relating to any Tax.
"TERMINATING EMPLOYEE" means Glen A. Catt, Marcia Dennis, Dennis W.
Freeman, Tim Freeman, Tom Freeman, Paul Freeman, Ed Hunt and Jessie Root.
"THREATENED" means, as to any claim, Proceeding, dispute, action or
other matter, that a demand or statement has been made (orally or in
writing) or a notice has been given (orally or in writing) that would lead
a prudent Person to conclude that such a claim, Proceeding, dispute, action
or other matter is reasonably likely to be asserted, commenced, taken or
otherwise pursued in the future.
"WARN" means the Federal Worker Adjustment and Retraining Act,
29 U.S.C. <Section> 2101-2109.
"WIC" means the Federal Supplemental Food Program For Women, Infants
and Children administered by the WIC Division of the Michigan Department of
Community Health and other applicable state agencies and departments.
ARTICLE 9 - GENERAL
SECTION 9.1. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. All representations, warranties, covenants and agreements made
by any Party to this Agreement will survive the Closing without expiration
and any investigation at any time made by or on behalf of the other Parties
before or after the Closing. No investigation by or Knowledge of Buyer or
its Representatives will affect in any manner the representations,
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warranties, covenants or agreements of the other Parties set forth in this
Agreement (or in any document to be executed or delivered in connection
with the consummation of the transactions contemplated by this Agreement)
or Buyer's right to rely thereon, and such representations, warranties,
covenants and agreements will survive any such investigation.
SECTION 9.2. BINDING EFFECT; BENEFITS; ASSIGNMENT. All of the terms
of this Agreement will be binding upon, inure to the benefit of and be
enforceable by and against the heirs and personal representatives of each
Shareholder and the successors and authorized assigns of each Party.
Nothing in this Agreement, express or implied, is intended to confer upon
any other Person any rights or remedies under or by reason of this
Agreement, this Agreement being for the exclusive benefit of the Parties
and their respective heirs, personal representatives, successors and
authorized assigns. No Party will assign any of its respective rights or
obligations under this Agreement to any other Person without the prior
written consent of all of the other Parties; provided however that Buyer
may assign its rights to any Affiliate of Buyer, but such assignment shall
not relieve Buyer of its obligations under this Agreement.
SECTION 9.3. ENTIRE AGREEMENT. This Agreement, and the exhibits and
schedules to this Agreement (including the Disclosure Schedule), and the
agreements referred to in this Agreement set forth the entire agreement and
understanding of the Parties in respect of the transactions contemplated by
this Agreement and supersede all prior agreements, arrangements and
understandings relating to the subject matter hereof, including Buyer's
Letter of Intent. No representation, promise, inducement or statement of
intention has been made by any Party that is not embodied in this Agreement
or in the documents referred to in this Agreement, and no Party will be
bound by or liable for any alleged representation, promise, inducement or
statement of intention not so set forth.
SECTION 9.4. AMENDMENT AND WAIVER. This Agreement may be amended,
modified, supplemented, superseded or canceled and any of the terms,
covenants, representations, warranties or conditions hereof may be waived
only by a written instrument executed by the Parties or, in the case of a
waiver, by or on behalf of the Party waiving compliance. The failure of
any Party at any time to require performance of any provision of this
Agreement will in no manner affect the right of that Party at a later time
to enforce such provision. No waiver by any Party of any condition or of
any Breach of any term, covenant, representation or warranty contained in
this Agreement, in any one or more instances, will be deemed to be or
construed as a further or continuing waiver of any such condition or of any
Breach of the term, covenant, representation or warranty or any other term,
covenant, representation or warranty set forth in this Agreement.
SECTION 9.5. GOVERNING LAW; VENUE. This Agreement will be governed
by and construed in accordance with the laws of the state of Michigan as
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applicable to contracts made and to be performed in the state of Michigan
without regard to conflict of laws principles. Any action or legal
proceeding concerning this Agreement or any other dispute between the
Parties shall be brought in the state or federal courts located in Kent
County, Michigan. The Parties agree that Kent County is a mutually
convenient forum and that each of the Parties conducts business in Kent
County.
SECTION 9.6. PUBLIC DISCLOSURE. Except as may be required by
applicable law or the applicable rules of any national securities exchange
or automated quotation service, no Party will make any public disclosure of
the existence or terms of this Agreement or the transactions contemplated
by this Agreement without the prior written consent of Buyer and
Shareholders, which consent will not be unreasonably withheld.
SECTION 9.7. NOTICES. All notices, requests, demands and other
communications to be given pursuant to the terms of this Agreement will be
in writing and will be deemed to have been duly given if delivered by hand,
sent by facsimile with confirmation, sent by a nationally recognized
overnight mail service, or mailed first class, postage prepaid:
(a) If to Buyer:
Spartan Stores, Inc.
850 76th Street, S.W.
P.O. Box 8700
Grand Rapids, Michigan 49518-8700
Telephone: 616-878-2426
Facsimile: 616-878-2775
Attention: James B. Meyer, President and Chief Executive
Officer
and with a copy to:
Warner, Norcross & Judd LLP
900 Old Kent Building
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503-2487
Telephone: 616/752-2140
Facsimile: 616/752-2509
Attention: Alex J. DeYonker
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(b) If to any Seller, Shareholder or Real Estate Company:
Catt's Realty Co.
P.O. Box 1215
Gaylord, Michigan 49734
Telephone: 517-732-9722
Facsimile: 517-732-6102
Attention: Glen A. Catt
and with a copy to:
Varnum Riddering Schmidt & Howlett
333 Bridge Street
Grand Rapids, Michigan 49501-0352
Telephone: 336-6000
Facsimile: 336-7000
Attention: J. Terry Moran
Any Party may change its address, telephone number or facsimile number by
prior written notice to the other Parties.
SECTION 9.8. COUNTERPARTS. This Agreement may be executed in
counterparts, by facsimile signature or otherwise, each of which when so
executed will be deemed to be an original and such counterparts will
together constitute one and the same agreement.
SECTION 9.9. EXPENSES. Except as otherwise provided in this
Agreement, each Party shall pay its, his or her own respective expenses,
costs and fees (including fees for attorneys, accountants and advisors)
incurred in connection with the negotiation, preparation, execution and
delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement, provided that such expenses, costs or fees
of Sellers shall be paid from the Purchase Price (and not the assets of the
Business). Sellers shall be responsible for any transfer, sales, recording
or other Taxes or fees incurred in connection with the transactions
contemplated by this Agreement, including the transfer of the Purchased
Assets to Buyer.
SECTION 9.10. FORCE MAJEURE. No Party shall be deemed to be in
Breach of this Agreement or otherwise responsible for delays or failures in
performance resulting from acts of God; acts of war or civil disturbance;
epidemics; governmental action or inaction; disruptions in financial
markets; fires; earthquakes; unavailability of labor, materials, power, or
communication; or other causes beyond such Party's reasonable control.
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<PAGE>
SECTION 9.11. SEVERABILITY. Any provision, or clause of any
provisions, of this Agreement that may be found to be contrary to Michigan
law or otherwise unenforceable will not affect the remaining terms of this
Agreement, which will be construed as if the unenforceable provision or
clause were absent from this Agreement.
SECTION 9.12. HEADINGS; CONSTRUCTION; TIME OF ESSENCE. The headings
of the sections and paragraphs in this Agreement have been inserted for
convenience of reference only and will not restrict or otherwise modify any
of the terms or provisions of this Agreement. Unless otherwise expressly
provided, the word "including" whenever used in this Agreement does not
limit the preceding words or terms. With regard to all dates and time
periods set forth or referred to in this Agreement, time is of the essence.
SECTION 9.13. GUARANTY OF PARENT. By joining in this Agreement,
Parent guarantees to Sellers the full and prompt payment and performance
when due of all indebtedness and obligations of Buyer to Sellers under this
Asset Purchase Agreement prior to or as of the Closing Date. This guaranty
of Parent is an absolute, irrevocable, primary, continuing, unconditional,
and unlimited guaranty of performance and payment. This guarantee shall
terminate upon Closing. Parent has full capacity, power, and authority to
enter into this Agreement and to carry out the covenants and agreements
specifically made by Parent in this Agreement, and this Agreement is
binding on Parent and enforceable against Parent in accordance with the
terms of this Agreement. The signing, delivery, and performance of this
Agreement have been duly authorized by all necessary action of the
directors and shareholders (if necessary) of Parent.
SECTION 9.14. SHAREHOLDER APPROVAL. This Agreement is being executed
by the Shareholders, subject to the approval of all shareholders of Sellers
as required by law, at meetings duly called and convened for that purpose;
provided, however, that the Shareholders by their signatures hereto
represent their agreement herewith, and agree to vote their interests in
favor of the approval of this Agreement, and they agree that their
execution hereof satisfies the condition in Buyer's Letter of Intent that a
definitive agreement be executed within the time set forth in Buyer's
Letter of Intent. Promptly after the date of this Agreement, Sellers shall
seek their shareholders' approval of this Agreement and the transactions
contemplated by this Agreement.
SECTION 9.15. PARENT STOCK REDEMPTION. Upon request by Sellers at
any time within one year after Closing, Sellers may sell to Parent any
stock of Parent held by Sellers as of the date of this Agreement and, in
exchange therefor, Parent shall pay to Sellers in immediately available
funds an amount per share equal to the then current trading value per
share.
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<PAGE>
The Parties have executed this Agreement as of the date stated in
the first paragraph of this Agreement.
GLEN'S MARKET, INC. ("SELLER" AND AS
SHAREHOLDER OF GLEN'S PHARMACY, INC.)
By /s/Glen A. Catt
Its President
CATT'S REALTY CO. ("SELLER")
By /s/Glen A. Catt
Its President
GLEN'S PHARMACY, INC. ("SELLER")
By /s/Glen A. Catt
Its President
VALULAND, INC. ("BUYER")
By /s/James B. Meyer
Its Chairman of the Board
UNIVERSAL LAND COMPANY
("REAL ESTATE COMPANY")
By /s/Glen A. Catt
Its President
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SPARTAN STORES, INC.
("PARENT")
By /s/James B. Meyer
Its President and CEO
/s/Glen A. Catt
Glen A. Catt, (a "SHAREHOLDER")
Individually and as Trustee of the
Catt's Realty Ann TR #5
/s/Glen B. Catt
Glen B. Catt (a "SHAREHOLDER")
/s/Dennis W. Freeman
Dennis W. Freeman, (a "SHAREHOLDER")
Individually and as Trustee of the DWF
Retained Ann TR#1
/s/Sandra K. Freeman
Sandra K. Freeman, (a "SHAREHOLDER")
Individually and as Trustee of the SKF
Retained Ann TR#1
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EXHIBIT 2.2
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (the "AMENDMENT") is
made as of May 19, 1999, by and between Valuland, Inc., a Michigan
corporation ("BUYER") and Glen's Market, Inc. ("GLEN'S"), Catt's Realty Co.
("CATT'S") and Glen's Pharmacy, Inc. ("GLENS PHARMACY") (each, a "SELLER,"
and, collectively, the "SELLERS"). All other capitalized terms used in
this Amendment and not otherwise defined have the meanings set forth in the
Asset Purchase Agreement dated March 5, 1999 (the "ASSET PURCHASE
AGREEMENT").
RECITALS
A. Pursuant to the Asset Purchase Agreement, Sellers have agreed to
sell, and Buyer has agreed to buy, certain assets of Sellers.
B. The Parties desire to amend the Asset Purchase Agreement as set
forth in this Amendment.
ACCORDINGLY, in consideration of the covenants and agreements set
forth in this Amendment and in the Asset Purchase Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. EXHIBIT B shall be amended to provide as set forth in the
attached AMENDED EXHIBIT B.
2. The initial sentence of EXHIBIT G shall be amended to provide as
follows:
The value of the Inventory (excluding all Non-assignable
Private Label Inventory) shall be determined by STT
Inventory Service (the "INVENTORY APPRAISERS"), based upon
the Inventory Appraisers' physical review of the non-
perishable Inventory conducted from April 24, 1999 through
May 3, 1999, and of the perishable Inventory conducted no
more than ten days before or after Closing.
3. The Parties acknowledge that certain third party consents
required by SECTION 5.1(H) of the Asset Purchase Agreement, as listed on
EXHIBIT N (the "MISSING CONSENTS"), have not been delivered by Sellers as
of Closing. Buyer waives this condition to Closing with respect only to
the Missing Consents. Buyer and Sellers shall cooperate and shall use
reasonable best efforts to obtain the Missing Consents as soon as
practicable after Closing. Sellers and Shareholders jointly and severally
shall indemnify and hold harmless Buyer's Indemnified Parties, and shall
reimburse Buyer's Indemnified Parties on demand, from all Adverse
<PAGE>
Consequences arising from or related to Sellers' failure to obtain the
Missing Consents prior to Closing. This indemnification shall be in
accordance with and subject to ARTICLE 7 of the Asset Purchase Agreement,
excluding the limitations on indemnification set forth in SECTION 7.4(B).
4. The term "Roundy's Termination Fee" shall mean the termination
fee payable by Sellers to Roundy's in the amount of $3,530,291.
5. The repair or replacement of all or any part of the roofs at the
Stores located in Houghton Lake, Kalkaska or Mancelona shall not be subject
to the limitations on indemnification set forth in SECTION 7.4(B).
6. All other terms, conditions, covenants, obligations and
agreements in the Asset Purchase Agreement shall remain in full force and
effect.
Signed as of the day and year first written above.
GLEN'S MARKET, INC. ("SELLER")
By /s/Erick Buckleitner
Its Treasurer
CATT'S REALTY CO. ("SELLER")
By /s/Jesse L. Root
Its Vice President
GLEN'S PHARMACY, INC. ("SELLER")
By /s/Erick Buckleitner
Its Treasurer
VALULAND, INC. ("BUYER")
By /s/Charles B. Fosnaugh
Its President
<PAGE>
EXHIBIT 10
===========================================================================
CREDIT AGREEMENT
Dated as of March 18, 1999
among
SPARTAN STORES, INC.,
The Institutions from time to time
parties hereto as Lenders
and
ABN AMRO BANK N.V.,
as Arranger, Syndication Agent and Collateral Agent
MICHIGAN NATIONAL BANK,
as Co-Arranger and Administrative Agent
AND
NBD BANK
AS DOCUMENTATION AGENT
===========================================================================
SIDLEY & AUSTIN
One First National Plaza
Chicago, Illinois 60603
===========================================================================
<PAGE>
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. . . . . . . . . . . . . . . . . . . . . .1
1.2 References . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1.3 Supplemental Disclosure. . . . . . . . . . . . . . . . . . . . 29
ARTICLE II: THE TERM LOAN AND REVOLVING LOAN FACILITIES
2.1 Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.2 Revolving Loans. . . . . . . . . . . . . . . . . . . . . . . . 33
2.3 Acquisition Facility . . . . . . . . . . . . . . . . . . . . . 35
2.4 Optional Payments; Mandatory Prepayments . . . . . . . . . . . 38
2.5 Reduction of Commitments . . . . . . . . . . . . . . . . . . . 41
2.6 Method of Borrowing; Rate Options for all Advances . . . . . . 41
2.7 Method of Selecting Types and Interest Periods for Advances. . 42
2.8 Minimum Amount of Each Advance . . . . . . . . . . . . . . . . 42
2.9 Method of Selecting Types and Interest Periods for Conversion
and Continuation of Advances . . . . . . . . . . . . . . . . . 42
2.10 Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.11 Method of Payment. . . . . . . . . . . . . . . . . . . . . . . 43
2.12 Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.13 Telephonic Notices . . . . . . . . . . . . . . . . . . . . . . 43
2.14 Promise to Pay; Interest and Commitment Fees; Interest
Payment Dates; Interest and Fee Basis; Taxes; Loan and
Control Accounts . . . . . . . . . . . . . . . . . . . . . . . 44
2.15 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions . . . . . . . . 52
2.16 Lending Installations. . . . . . . . . . . . . . . . . . . . . 52
2.17 Non-Receipt of Funds by the Administrative Agent . . . . . . . 52
2.18 Termination Date . . . . . . . . . . . . . . . . . . . . . . . 52
2.19 Replacement of Certain Lenders . . . . . . . . . . . . . . . . 52
2.20 Collection Account Arrangements. . . . . . . . . . . . . . . . 53
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue; Transitional Issues . . . . . . . . . . . 54
3.2 Types and Amounts. . . . . . . . . . . . . . . . . . . . . . . 55
3.3 Conditions.. . . . . . . . . . . . . . . . . . . . . . . . . . 55
3.4 Procedure for Issuance of Letters of Credit. . . . . . . . . . 55
3.5 Letter of Credit Participation . . . . . . . . . . . . . . . . 56
3.6 Reimbursement Obligation . . . . . . . . . . . . . . . . . . . 56
3.7 Letter of Credit Fees. . . . . . . . . . . . . . . . . . . . . 57
3.8 Issuing Bank Reporting Requirements. . . . . . . . . . . . . . 57
3.9 Indemnification; Exoneration . . . . . . . . . . . . . . . . . 57
3.10 Cash Collateral. . . . . . . . . . . . . . . . . . . . . . . . 59
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<PAGE>
SECTION PAGE
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection . . . . . . . . . . . . . . . . . . . . . . . 59
4.2 Changes in Capital Adequacy Regulations. . . . . . . . . . . . 60
4.3 Availability of Types of Advances. . . . . . . . . . . . . . . 61
4.4 Funding Indemnification. . . . . . . . . . . . . . . . . . . . 61
4.5 Lender Statements; Survival of Indemnity . . . . . . . . . . . 61
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances and Letters of Credit . . . . . . . . . . . . 62
5.2 Each Advance and Letter of Credit. . . . . . . . . . . . . . . 63
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
6.1 Organization; Corporate Powers . . . . . . . . . . . . . . . . 63
6.2 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6.3 No Conflict; Governmental Consents . . . . . . . . . . . . . . 64
6.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . 65
6.5 No Material Adverse Change . . . . . . . . . . . . . . . . . . 65
6.6 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6.7 Litigation; Loss Contingencies and Violations. . . . . . . . . 66
6.8 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 66
6.9 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6.10 Accuracy of Information. . . . . . . . . . . . . . . . . . . . 68
6.11 Securities Activities. . . . . . . . . . . . . . . . . . . . . 68
6.12 Material Agreements. . . . . . . . . . . . . . . . . . . . . . 68
6.13 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . 68
6.14 Assets and Properties. . . . . . . . . . . . . . . . . . . . . 69
6.15 Statutory Indebtedness Restrictions. . . . . . . . . . . . . . 69
6.16 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.17 Labor Matters. . . . . . . . . . . . . . . . . . . . . . . . . 70
6.18 Environmental Matters. . . . . . . . . . . . . . . . . . . . . 70
6.19 Solvency . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
6.20 Foreign Employee Benefit Matters . . . . . . . . . . . . . . . 71
6.21 Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
6.22 Year 2000 Issues . . . . . . . . . . . . . . . . . . . . . . . 72
6.23 Subordinated Indebtedness. . . . . . . . . . . . . . . . . . . 72
ARTICLE VII: COVENANTS
7.1 Reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
7.2 Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . 78
7.3 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . 83
7.4 Financial Covenants. . . . . . . . . . . . . . . . . . . . . . 94
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<PAGE>
SECTION PAGE
ARTICLE VIII: DEFAULTS
8.1 Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND
REMEDIES
9.1 Termination of Commitments; Acceleration . . . . . . . . . . .100
9.2 Defaulting Lender. . . . . . . . . . . . . . . . . . . . . . .100
9.3 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . .102
9.4 Preservation of Rights . . . . . . . . . . . . . . . . . . . .103
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations . . . . . . . . . . . . . . . . .104
10.2 Governmental Regulation . . . . . . . . . . . . . . . . . . .104
10.3 Performance of Obligations. . . . . . . . . . . . . . . . . .104
10.4 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . .104
10.5 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . .104
10.6 Several Obligations; Benefits of this Agreement . . . . . . .105
10.7 Expenses; Indemnification . . . . . . . . . . . . . . . . . .105
10.8 Numbers of Documents. . . . . . . . . . . . . . . . . . . . .107
10.9 Accounting. . . . . . . . . . . . . . . . . . . . . . . . . .107
10.10 Severability of Provisions. . . . . . . . . . . . . . . . . .107
10.11 Nonliability of Lenders . . . . . . . . . . . . . . . . . . .107
10.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . .107
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL . . .108
10.14 No Strict Construction. . . . . . . . . . . . . . . . . . . .109
10.15 Subordination of Intercompany Indebtedness. . . . . . . . . .109
ARTICLE XI: THE AGENTS
11.1 Appointment; Nature of Relationship . . . . . . . . . . . . .111
11.2 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . .111
11.3 General Immunity. . . . . . . . . . . . . . . . . . . . . . .111
11.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.111
11.5 Action on Instructions of Lenders . . . . . . . . . . . . . .112
11.6 Employment of Agents and Counsel. . . . . . . . . . . . . . .112
11.7 Reliance on Documents; Counsel. . . . . . . . . . . . . . . .112
11.8 Reimbursement and Indemnification . . . . . . . . . . . . . .112
11.9 Rights as a Lender. . . . . . . . . . . . . . . . . . . . . .113
11.10 Lender Credit Decision. . . . . . . . . . . . . . . . . . . .113
11.11 Successor Agents. . . . . . . . . . . . . . . . . . . . . . .113
11.12 Collateral Documents. . . . . . . . . . . . . . . . . . . . .114
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<PAGE>
SECTION PAGE
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff. . . . . . . . . . . . . . . . . . . . . . . . . . . .115
12.2 Ratable Payments. . . . . . . . . . . . . . . . . . . . . . .115
12.3 Application of Payments . . . . . . . . . . . . . . . . . . .115
12.4 Relations Among Lenders . . . . . . . . . . . . . . . . . . .116
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns. . . . . . . . . . . . . . . . . . . .117
13.2 Participations. . . . . . . . . . . . . . . . . . . . . . . .117
13.3 Assignments . . . . . . . . . . . . . . . . . . . . . . . . .118
13.4 Confidentiality . . . . . . . . . . . . . . . . . . . . . . .120
13.5 Dissemination of Information. . . . . . . . . . . . . . . . .120
ARTICLE XIV: NOTICES
14.1 Giving Notice . . . . . . . . . . . . . . . . . . . . . . . .121
14.2 Change of Address . . . . . . . . . . . . . . . . . . . . . .121
ARTICLE XV: COUNTERPARTS
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<PAGE>
EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Commitments
(Definitions)
EXHIBIT B-1 -- Form of Revolving Note
(Definitions)
EXHIBIT B-2 -- Form of Tranche A Term Note
(Definitions)
EXHIBIT B-3 -- Form of Tranche B Term Note
(Definitions)
EXHIBIT B-4 -- Form of Acquisition Facility Note
(Definitions)
EXHIBIT B-5 -- Form of Swing Line Note
(Definitions)
EXHIBIT C -- Form of Borrowing Notice (Section 2.7)
EXHIBIT D -- Form of Request for Letter of Credit (Section 3.3)
EXHIBIT E -- Form of Assignment and Acceptance Agreement
(Sections 2.19 and 13.3)
EXHIBIT F -- Form of Borrower's Counsel's Opinion
(Section 5.1)
EXHIBIT G -- List of Closing Documents
(Section 5.1)
EXHIBIT H -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iv))
EXHIBIT I -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iv))
EXHIBIT J -- Form of Guaranty Supplement
(Definitions)
EXHIBIT K -- Form of Escrow Agreement
(Definitions; Section 5.3)
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<PAGE>
SCHEDULES
Schedule 1.1.1 -- Permitted Existing Contingent Obligations
(Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Investments (Definitions)
Schedule 1.1.4 -- Permitted Existing Liens (Definitions)
Schedule 3.1 -- Existing Letters of Credit (Definitions; Section
3.1)
Schedule 6.4 -- Pro Forma Financial Statements and Projections
(Section 6.4(A))
Schedule 6.7 -- Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.9 -- ERISA (Section 6.9)
Schedule 6.16 -- Insurance (Sections 6.16 and 7.2(E))
Schedule 6.17 -- Labor Matters (Section 6.17)
Schedule 6.18 -- Environmental Matters (Section 6.18)
Schedule 7.2(R) -- Post-Closing Matters (Section 7.2(R))
Schedule 7.3(H) -- Transactions with Affiliates (Section 7.3(H))
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<PAGE>
CREDIT AGREEMENT
This Credit Agreement dated as of March 18, 1999 is entered into among
SPARTAN STORES, INC., a Michigan corporation, the institutions from time to
time parties hereto as Lenders, whether by execution of this Agreement or
an Assignment Agreement pursuant to SECTION 13.3, ABN AMRO BANK N.V., in
its capacity as Arranger, Collateral Agent and Syndication Agent and
MICHIGAN NATIONAL BANK, in its capacity as a Co-Arranger and as
Administrative Agent. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1 CERTAIN DEFINED TERMS. In addition to the terms defined above,
the following terms used in this Agreement shall have the following
meanings, applicable both to the singular and the plural forms of the terms
defined.
As used in this Agreement:
"ABN AMRO" means ABN AMRO Bank N.V., in its individual capacity, and
its successors.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which
the Borrower or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power
for the election of directors (other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage
of voting power) of the outstanding equity interests of another Person.
"ACQUISITION FACILITY COMMITMENT" means, for each Lender, the
obligation of such Lender to make Acquisition Facility Loans not exceeding
the amount set forth on EXHIBIT A to this Agreement opposite its name
thereon under the heading "Acquisition Facility Commitment" or in the
Assignment Agreement by which it became a Lender, as such amount may be
modified from time to time pursuant to the terms of this Agreement or to
give effect to any applicable assignment and acceptance.
"ACQUISITION FACILITY LOAN" is defined in SECTION 2.3 hereof.
"ACQUISITION FACILITY NOTE" means a note in substantially the form of
EXHIBIT B-4 hereto duly executed by the Borrower and payable to the order
<PAGE>
of a Lender in the amount of its Acquisition Facility Commitment, including
any amendment, restatement, modification, renewal or replacement of such
Acquisition Facility Note.
"ACQUISITION LOAN PRO RATA SHARE" shall mean, at any particular time
and with respect to any Lender, a fraction (expressed as a percentage), the
numerator of which shall be the then aggregate amount of such Lender's
Acquisition Facility Commitment (or, after the Term Loan Conversion Date,
the outstanding principal balance of such Lender's Acquisition Facility
Loans) and the denominator of which shall be the then aggregate amount of
the Acquisition Facility Commitments (or, after the Term Loan Conversion
Date or if such Commitments have been terminated, the outstanding principal
balance of all Acquisition Facility Loans).
"ACQUISITION LOAN TERMINATION DATE" means March 18, 2006.
"ACQUISITION REDEMPTIONS" means all redemptions, retirements,
purchases or other acquisitions for value, direct or indirect, of any
Equity Interests of the Borrower from any seller or target entity in
connection with a Permitted Acquisition; PROVIDED (a) all amounts in
connection therewith are included in the calculation of the purchase price
for purposes of determining whether such Acquisition is subject to the
requirements of SECTION 7.3(G)(III)(H); and (b) all amounts in connection
therewith are paid not later than one year following the closing date of
such Permitted Acquisition.
"ADMINISTRATIVE AGENT" means Michigan National, in its capacity as
contractual representative for itself and the Lenders pursuant to ARTICLE
XI hereof and any successor Administrative Agent appointed pursuant to
ARTICLE XI hereof.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same
Type and, in the case of Eurodollar Rate Advances, for the same Interest
Period.
"AFFECTED LENDER" is defined in SECTION 2.19 hereof.
"AFFILIATE" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such
Person. A Person shall be deemed to control another Person if the
controlling Person is the "beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934) of greater than ten percent
(10%) or more of any class of voting securities (or other voting interests)
of the controlled Person or possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of Capital Stock, by contract
or otherwise.
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<PAGE>
"AGENTS" means the Syndication Agent, the Collateral Agent and the
Administrative Agent.
"AGGREGATE ACQUISITION FACILITY COMMITMENT" means the aggregate of the
Acquisition Facility Commitments of all the Lenders, as reduced from time
to time pursuant to the terms hereof. The initial Aggregate Acquisition
Facility Commitment is Seventy-Five Million Dollars ($75,000,000).
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is One Hundred Million Dollars ($100,000,000).
"AGGREGATE TERM LOAN COMMITMENT" means the aggregate of the Tranche A
Term Loan Commitments ($100,000,000) and the Tranche B Term Loan
Commitments ($150,000,000)of all the Lenders. The Aggregate Term Loan
Commitment is Two-Hundred and Fifty Million Dollars ($250,000,000).
"AGREEMENT" means this Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect in the United States from time to time, applied in
a manner consistent with that used in preparing the financial statements of
the Borrower referred to in SECTION 6.4(B) hereof, PROVIDED, HOWEVER, that
with respect to the calculation of financial ratios and other financial
tests required by this Agreement, "Agreement Accounting Principles" means
generally accepted accounting principles as in effect in the United States
as of the date of this Agreement, applied in a manner consistent with that
used in preparing the financial statements of the Borrower referred to in
SECTION 6.4(A) hereof; PROVIDED, FURTHER, HOWEVER, all PRO FORMA financial
statements reflecting Acquisitions shall be prepared in accordance with the
requirements established by the Commission for acquisition accounting for
reporting acquisitions by public companies (whether or not such
Acquisitions are required to be publicly reported).
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Prime Rate for such day
and (ii) the sum of (a) the Federal Funds Effective Rate for such day and
(b) one-half of one percent (0.5%) per annum.
"APPLICABLE EURODOLLAR MARGINS" means, as at any date of
determination, the rate per annum then applicable to Eurodollar Rate Loans
which are Tranche A Term Loans, Revolving Loans, Tranche B Term Loans or
Acquisition Facility Loans, as applicable, determined in accordance with
the provisions of SECTION 2.14(D)(II) hereof.
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<PAGE>
"APPLICABLE FLOATING RATE MARGINS" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
which are Tranche A Term Loans, Revolving Loans, Tranche B Term Loans or
Acquisition Facility Loans, as applicable, determined in accordance with
the provisions of SECTION 2.14(D)(II) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of
determination, a rate per annum equal to the Applicable Eurodollar Margin
for Revolving Loans in effect on such date.
"ARRANGER" means ABN AMRO, as the arranger for the loan transactions
evidenced by this Agreements and "ARRANGERS" means the Arranger and the Co-
Arranger.
"ASSIGNMENT AGREEMENT" shall mean an assignment and acceptance
agreement entered into in connection with an assignment pursuant to SECTION
13.3 hereof in substantially the form of EXHIBIT E.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its
assets (including by way of a sale-leaseback transaction and including the
sale or other transfer of any of the Equity Interests of any Subsidiary of
such Person).
"AUTHORIZED AGENT" means any Authorized Officer or any other employee
of the Borrower identified through documentation acceptable to the Agents
as being authorized to effect borrowings, request issuance of Letters of
Credit or select Types and Interest Periods for Advances hereunder, acting
singly.
"AUTHORIZED OFFICER" means any of the President, Director of Finance
or Vice President of Finance of the Borrower, acting singly.
"BENEFIT PLAN" means a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) in respect of which the
Borrower or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"BORROWER" means Spartan Stores, Inc., a Michigan corporation,
together with its successors and assigns.
"BORROWER PLEDGE AGREEMENT" means the Pledge Agreement of even date
herewith executed by the Borrower in favor of the Collateral Agent for the
benefit of the Holders of Secured Obligations, as amended, supplemented,
restated or otherwise modified from time to time pledging all of the
outstanding Capital Stock of each of the Borrower's Subsidiaries.
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<PAGE>
"BORROWING DATE" means a date on which an Advance or Swing Line Loan
is made hereunder.
"BORROWING NOTICE" is defined in SECTION 2.7 hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or
rate selection of Loans bearing interest at the Eurodollar Rate, a day
(other than a Saturday or Sunday) on which banks are open for business in
Farmington Hills, Michigan, Chicago, Illinois and New York, New York and on
which dealings in Dollars are carried on in the London interbank market and
(ii) for all other purposes a day (other than a Saturday or Sunday) on
which banks are open for business in Farmington Hills, Michigan, Chicago,
Illinois and New York, New York.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by the
Borrower and its Subsidiaries during that period that, in conformity with
Agreement Accounting Principles, are required to be included in or
reflected by the property, plant, equipment or similar fixed asset accounts
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership,
partnership interests (whether general or limited) and (iv) any other
interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the
issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be
capitalized on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States government and backed by
the full faith and credit of the United States government; (ii) domestic
and Eurodollar certificates of deposit and time deposits, bankers'
acceptances and floating rate certificates of deposit issued by any
commercial bank organized under the laws of the United States, any state
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<PAGE>
thereof, the District of Columbia, any foreign bank, or its branches or
agencies (fully protected against currency fluctuations for any such
deposits with a term of more than ninety (90) days); (iii) shares of money
market, mutual or similar funds having assets in excess of $100,000,000 and
the investments of which are limited to investment grade securities (i.e.,
securities rated at least Baa by Moody's Investors Service, Inc. or at
least BBB by Standard & Poor's Corporation); and (iv) commercial paper of
United States and foreign banks and bank holding companies and their
subsidiaries and United States and foreign finance, commercial industrial
or utility companies which, at the time of acquisition, are rated A-1 (or
better) by Standard & Poor's Corporation or P-1 (or better) by Moody's
Investors Services, Inc.; PROVIDED that the maturities of such Cash
Equivalents shall not exceed 365 days.
"CHANGE" is defined in SECTION 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(i) any "person" or "group" (as such terms are used in SECTIONS
13(D) and 14(D) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of twenty-five percent (25%) or more of the
combined voting power of the Borrower's Capital Stock ordinarily
having the right to vote at an election of directors;
(ii) during any period of 12 consecutive calendar months,
individuals:
(a) who were directors of the Borrower on the first day of such
period, or
(b) whose election or nomination for election to the board of
directors of the Borrower was recommended or approved by at
least a majority of the directors then still in office who
were directors of the Borrower on the first day of such
period, or whose election or nomination for election was so
approved,
shall cease to constitute a majority of the board of directors of the
Borrower;
(iii) the Borrower consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all
of its property to any Person, or any corporation consolidates with or
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<PAGE>
merges into the Borrower, in either event pursuant to a transaction in
which the outstanding Capital Stock of the Borrower is reclassified or
changed into or exchanged for cash, securities or other property; or
(iv) other than as a result of a transaction permitted under the
terms of this Agreement, the Borrower shall cease to own, of record
and beneficially, with sole voting and dispositive power, (a) 100% of
the outstanding shares of Capital Stock of each of the Guarantors or
(b) shall cease to have the power, directly or indirectly, to elect a
majority of the members of the board of directors of each of the
Guarantors.
"CLOSING DATE" means the date on which the Term Loans and the initial
Revolving Loans are advanced hereunder.
"CO-ARRANGER" means Michigan National in its capacity as the co-
arranger, with the Arranger, for the loan transactions evidenced by this
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by the Borrower or any of its Subsidiaries in or upon
which a security interest, lien or mortgage is granted to the Collateral
Agent, for the benefit of the Holders of Secured Obligations, or to the
Collateral Agent, for the benefit of the Lenders, whether under the
Security Agreement, under any of the other Collateral Documents or under
any of the other Loan Documents.
"COLLATERAL AGENT" means ABN AMRO Bank N.V. in its capacity as
collateral agent for itself and the Lenders, together with any successor
entity thereto.
"COLLATERAL DOCUMENTS" means all agreements, instruments and
documents executed in connection with this Agreement, including, without
limitation, the Security Agreement, the Pledge Agreements, the Collection
Account Agreements, the Mortgages, the Intellectual Property Agreements,
and all other security agreements, loan agreements, notes, guarantees,
pledges, powers of attorney, consents, assignments, contracts, fee letters,
notices, leases, financing statements and all other written matter whether
heretofore, now, or hereafter executed by or on behalf of the Borrower or
any of its Subsidiaries and delivered to the Collateral Agent or any of the
Lenders, together with all agreements and documents referred to therein or
contemplated thereby.
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<PAGE>
"COLLECTION ACCOUNT" means each blocked depository account maintained
by the Borrower or any of its Subsidiaries, subject to a Collection Account
Agreement, for the collection of Receivables and other proceeds of
Collateral.
"COLLECTION ACCOUNT AGREEMENT" means a written agreement among the
Borrower or one of its Subsidiaries, the Collateral Agent, and, as
applicable, each of the banks at which the Borrower or any of its
Subsidiaries maintains a Collection Account in substantially the form
attached as EXHIBIT C to the Security Agreement or such other form as may
be reasonably acceptable to the Collateral Agent.
"COLLECTION ACCOUNT BLOCKAGE DATE" means the date, following the
occurrence and during the continuance of a Default, on which any Agent or
the Required Lenders, in any Agent's or the Required Lenders' discretion,
instruct(s) any financial institution party to a Collection Account as
described in the applicable Collection Account Agreement to remit, during
the continuance of such Default, all amounts deposited in the Collection
Account to the Collateral Agent or as the Collateral Agent shall direct.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMMITMENT" means, for each Lender, collectively, such Lender's
Acquisition Facility Commitment, Revolving Loan Commitment, Tranche A Term
Loan Commitment and Tranche B Term Loan Commitment.
"CONSOLIDATED TANGIBLE ASSETS" means the total assets of the Borrower
and its Subsidiaries on a consolidated basis, but excluding therefrom all
items that are treated as intangibles under Agreement Accounting
Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBs"), or any
constituent of any such substance or waste, and includes but is not limited
to these terms as defined in Environmental, Health or Safety Requirements
of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with
respect to any Indebtedness of another or other obligation or liability of
another, including, without limitation, any such Indebtedness, obligation
or liability of another directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of
business), co-made or discounted or sold with recourse by that Person, or
in respect of which that Person is otherwise directly or indirectly liable,
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<PAGE>
including Contractual Obligations (contingent or otherwise) arising through
any agreement to purchase, repurchase, or otherwise acquire such
Indebtedness, obligation or liability or any security therefor, or to
provide funds for the payment or discharge thereof (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or
to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any equity or debt securities issued by that Person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guaranty, contract, undertaking, agreement or instrument, in any case in
writing, to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership
or other trade or business (whether or not incorporated) which is under
common control (within the meaning of Section 414(c) of the Code) with the
Borrower; and (iii) a member of the same affiliated service group (within
the meaning of Section 414(m) of the Code) as the Borrower, any corporation
described in CLAUSE (I) above or any partnership or trade or business
described in CLAUSE (II) above.
"CONTROLLED SUBSIDIARY" of any Person means a Subsidiary of such
Person (i) 90% or more of the total Equity Interests or other ownership
interests of which (other than directors' qualifying shares) shall at the
time be owned by such Person or by one or more wholly-owned Subsidiaries of
such Person and (ii) of which such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies, whether through the ownership of voting securities, by agreement
or otherwise.
"CONVERSION/CONTINUATION NOTICE" is defined in SECTION 2.9(D) hereof.
"CURE LOAN" is defined in SECTION 9.2(III) hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor of
the IRS or the PBGC) with respect to the payment of taxes, assessments
or governmental charges in all cases which are not yet due or (if
foreclosure, distraint, sale or other similar proceedings shall not
have been commenced) which are being contested in good faith by
appropriate proceedings properly instituted and diligently conducted
and with respect to which adequate reserves or other appropriate
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provisions are being maintained in accordance with Agreement
Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being contested in good
faith by appropriate proceedings properly instituted and diligently
conducted and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor of
the IRS or the PBGC) incurred or deposits made in the ordinary course
of business in connection with worker's compensation, unemployment
insurance or other types of social security benefits or to secure the
performance of bids, tenders, sales, contracts (other than for the
repayment of borrowed money), surety, appeal and performance bonds;
PROVIDED that (A) all such Liens do not in the aggregate materially
detract from the value of the Borrower's or such Subsidiary's assets
or property taken as a whole or materially impair the use thereof in
the operation of the businesses taken as a whole, and (B) all Liens
securing bonds to stay judgments or in connection with appeals do not
secure at any time an aggregate amount exceeding $7,500,000;
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of real property which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the
Borrower or any of its Subsidiaries which do not constitute a Default
under SECTION 8.1(H) hereof; and
(vi) any interest or title of the lessor in the property subject
to any operating lease entered into by the Borrower or any of its
Subsidiaries in the ordinary course of business.
"CUSTOMER GUARANTIED INDEBTEDNESS" shall mean Indebtedness of any
customer of the Borrower or any of its Subsidiaries permitted to be
guarantied by the Borrower under this Agreement either pursuant to the
provisions of SECTION 7.3(E)(II) (Permitted Existing Contingent
Obligations) or SECTION 7.3(E)(V) (Customer Loan Guaranties entered into
after the Closing Date).
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"CUSTOMER LOAN GUARANTIES" is defined in SECTION 7.3(E)(V) hereof.
"CUSTOMER LEASE GUARANTIES" is defined in SECTION 7.3(E)(VI) hereof.
"DEFAULT" means an event described in ARTICLE VIII hereof.
"DESIGNATED LENDER" means National Australia Bank Limited or Michigan
National Bank, determined by reference to which of such entities at the
time of such determination has a Revolving Loan Commitment and Swing Loan
Commitment under this Agreement.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder thereof, in whole or in part, on
or prior to the date that is 91 days after the Revolving Loan Termination
Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States.
"EBITDA" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of the amounts for such period,
without duplication, of (i) Net Income (including, without limitation and
without duplication, rebate income and interest income), PLUS (ii) Interest
Expense, PLUS (iii) charges against income for foreign, federal, state and
local taxes to the extent deducted in computing Net Income, PLUS (iv)
depreciation expense to the extent deducted in computing Net Income, PLUS
(v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing
Net Income, PLUS (vi) other non-cash charges classified as long-term
deferrals in accordance with Agreement Accounting Principles to the extent
deducted in computing Net Income, PLUS (vii) other extraordinary non-cash
charges to the extent deducted in computing Net Income.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local
laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but
not limited to, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. <Section> 9601 ET SEQ., the Occupational Safety
and Health Act of 1970, 29 U.S.C. <Section> 651 ET SEQ., and the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. <Section> 6901 ET SEQ., in
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each case including any amendments thereto, any successor statutes, and any
regulations or guidance promulgated thereunder, and any state or local
equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification
or disclosure triggered by the closure of any property or the transfer,
sale or lease of any property or deed or title for any property for
environmental reasons, including, but not limited to, any so-called
"Industrial Site Recovery Act" or "Responsible Property Transfer Act."
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires)
any rules or regulations promulgated thereunder.
"ESCROW AGREEMENT" means the Escrow Agreement dated as of the date
hereof between the Borrower, the Agents and LaSalle National Bank, as
escrow agent.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the arithmetic mean, rounded to the nearest
1/100 of 1% of the applicable London interbank offered rate by major banks
for deposits in U.S. dollars appearing on Reuters Screen FRBD as of 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period,
PROVIDED that, if the Reuters Screen FRBD is not available for any reason,
the applicable Eurodollar Base Rate for the relevant Interest Period shall
instead be the applicable London interbank offered rate by major banks for
deposits in U.S. dollars appearing on Dow Jones Markets (Telerate) Page
3750 as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period; and PROVIDED, FURTHER that if the Dow Jones Markets (Telerate) Page
3750 is not available for any reason, the applicable Eurodollar Base Rate
for the relevant Interest Period shall instead be the applicable London
interbank offered rate by major banks for deposits in U.S. dollars
appearing in the Wall Street Journal, Midwest Edition, report of such
interest rate as of 11:00 a.m. (London time) two Business Days prior to the
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first day of such Interest Period. If none of such rates are available for
any reason, the Administrative Agent, with the consent of the Syndication
Agent, may select any other generally acceptable authoritative source as a
reference for such rate.
"EURODOLLAR RATE" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest
Period, plus the Applicable Eurodollar Margin. The Eurodollar Rate shall
be rounded to the next higher multiple of 1/16 of 1% if the rate is not
such a multiple.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"EXCESS CASH FLOW" means, for any period, an amount, without
duplication, equal to the Borrower's and its Subsidiaries' consolidated
(i) EBITDA for such period, MINUS (ii) income taxes paid in cash for such
period, MINUS (iii) Capital Expenditures paid in cash during such period,
MINUS (iv) Interest Expense for such period, MINUS (v) scheduled
amortization of the principal portion of the Term Loans and scheduled
amortization of the principal portion of all other Indebtedness of the
Borrower and its Subsidiaries during such period and MINUS (vi) Restricted
Payments permitted to be made pursuant to the terms of SECTION 7.3(F)
during such period, in each case as calculated in accordance with Agreement
Accounting Principles.
"EXISTING LETTERS OF CREDIT" means those certain letters of credit set
described on Schedule 3.1 hereto.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate
per annum equal to the Fed Funds Effective Rate as most recently published
on page 73 of the Knight Ridder Money Center; PROVIDED if page 73 of the
Knight Ridder Money Center is not available for any reason then the Federal
Funds Effective Rate for such day shall be the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
for such day (or, if such day is not a Business Day, for the immediately
preceding Business Day) by the Federal Reserve Bank of New York; PROVIDED,
FURTHER if such rate is not so published for any day the Administrative
Agent may in its reasonable discretion, and with the concurrence of the
Syndication Agent, select a reference comparable to such references.
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"FINANCING" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person, receipt by such Person
of any capital contribution or issuance or sale by such Person of any
Indebtedness consisting of debt securities of such Person.
"FIXED CHARGE COVERAGE RATIO" is defined in SECTION 7.4(A) hereof.
"FLOATING RATE" means, for any day for any Loan, a rate per annum
equal to the Alternate Base Rate for such day, changing when and as the
Alternate Base Rate changes, plus the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for
the benefit of the employees of the Borrower, any of its Subsidiaries or
any members of its Controlled Group and is not covered by ERISA pursuant to
ERISA Section 4(b)(4).
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA which (i) is maintained or contributed to for the
benefit of employees of the Borrower, any of its Subsidiaries or any of its
ERISA Affiliates, (ii) is not covered by ERISA pursuant to Section 4(b)(4)
of ERISA, and (iii) under applicable local law, is required to be funded
through a trust or other funding vehicle.
"GOVERNMENTAL ACTS" is defined in SECTION 3.9(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GROSS NEGLIGENCE" means recklessness, the absence of the slightest
care or the complete disregard of consequences. Gross Negligence does not
mean the absence of ordinary care or diligence, or an inadvertent act or
inadvertent failure to act. If the term "gross negligence" is used with
respect to any Agent, any Arranger or any Lender or any indemnitee in any
of the other Loan Documents, it shall have the meaning set forth herein.
"GUARANTORS" means (i) all of the Borrower's Subsidiaries as of the
Closing Date other than MDP LLC and (ii) any other new Subsidiaries which
have satisfied the provisions of SECTION 7.3(G) hereof, and their
respective successors and assigns.
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"GUARANTY" means that certain Subsidiary Guaranty dated as of the date
hereof, executed by the Guarantors in favor of the Agent, for the ratable
benefit of the Lenders, as it may be amended, modified, supplemented
(including as a result of the Guaranty Supplement) and/or restated
(including to add new Guarantors), and as in effect from time to time.
"GUARANTY SUPPLEMENT" shall mean a supplement to the guaranty entered
into in pursuant to the terms of SECTION 7.3(G) in substantially the form
of EXHIBIT J.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (i) any and
all agreements, devices or arrangements designed to protect at least one of
the parties thereto from the fluctuations of interest rates, commodity
prices, exchange rates or forward rates applicable to such party's assets,
liabilities or exchange transactions, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar
protection agreements, forward rate currency or interest rate options, puts
and warrants, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.
"HOLDERS OF SECURED OBLIGATIONS" shall mean the holders of the Secured
Obligations from time to time, including, without limitation, (i) each
Lender in respect of its Loans, (ii) the Issuing Bank in respect of
Reimbursement Obligations, (iii) the Agents, the Lenders, the Swing Line
Bank and the Issuing Banks in respect of all other present and future
obligations and liabilities of the Borrower or any of its Subsidiaries of
every type and description arising under or in connection with this
Agreement or any other Loan Document, (iii) each Indemnitee in respect of
the obligations and liabilities of the Borrower to such Person hereunder,
(iv) each Lender (or affiliate thereof), in respect of all Hedging
Obligations of the Borrower or any of its Subsidiaries to such Lender (or
such affiliate) as exchange party or counterparty under any Hedging
Agreement, and (v) their respective successors, transferees and assigns.
"INDEBTEDNESS" of any Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the
deferred purchase price of property or services (other than accounts
payable arising in the ordinary course of such Person's business payable on
terms customary in the trade), (c) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from property
or assets now or hereafter owned or acquired by such Person, (d)
obligations which are evidenced by notes, acceptances or other instruments,
(e) Capitalized Lease Obligations, (f) Contingent Obligations, (g)
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obligations with respect to standby letters of credit (other than
contingent reimbursement obligations with respect to standby letters of
credit required to be maintained by the Borrower and/or its Subsidiaries in
connection with the insurance business operated by Spartan Insurance
Company, Ltd. and its Subsidiaries; PROVIDED such obligations shall be
excluded only if Cash Equivalents which are subject to the Liens granted
under the Collateral Documents are maintained by Spartan Insurance Company,
Ltd. in an amount at least equal to the amount available for drawing under
such letters of credit and the Collateral Agent shall have received
perfection opinions with respect to its security interest in such Cash
Equivalents on or prior to the date that is 30 days after the Closing
Date), (h) Hedging Obligations and (i) Off Balance Sheet Liabilities;
PROVIDED, HOWEVER, for all purposes under this Agreement, the term
Indebtedness shall not include any amounts in respect of any Permitted
Hybrid Securities. The amount of Indebtedness of any Person at any date
shall be without duplication (i) the outstanding balance at such date of
all unconditional obligations as described above and the maximum liability
of any such Contingent Obligations at such date and (ii) in the case of
Indebtedness of others secured by a Lien to which the property or assets
owned or held by such Person is subject, the lesser of the fair market
value at such date of any asset subject to a Lien securing the Indebtedness
of others and the amount of the Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in SECTION 10.7(B) hereof.
"INDEMNITEES" is defined in SECTION 10.7(B) hereof.
"INTELLECTUAL PROPERTY DOCUMENTS" means (i) (a) those certain Patent
Security Agreements, (b) Trademark Security Agreements and (c) Copyright
Security Agreements each of even date herewith executed by the Borrower and
its Subsidiaries in favor of the Collateral Agent for the benefit of the
holders of Secured Obligations as amended, restated or otherwise modified
from time to time and (ii) (a) those certain Patent Security Agreements,
(b) Trademark Security Agreements and (c) Copyright Security Agreement, or
amendments thereto, executed pursuant to SECTION 7.2(N) by the Borrower
and its Subsidiaries.
"INTEREST EXPENSE" means, for any period, the total interest expense
of the Borrower and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment and
letter of credit fees and including the net attributable interest component
with respect to any interest rate exchange, swap, collar, cap or similar
agreements evidencing Hedging Obligations), but excluding interest expense
not payable in cash (including amortization of discount), all as determined
in conformity with Agreement Accounting Principles.
"INTEREST EXPENSE COVERAGE RATIO" is defined in SECTION 7.4(D) hereof.
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"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a
period of one (1), two (2), three (3) or six (6) months commencing on a
Business Day selected by the Borrower pursuant to this Agreement; PROVIDED
alternative interest periods may be established by the Arrangers during the
Syndication Period as set forth in SECTION 2.6. Such Interest Period shall
end on (but exclude) the day which corresponds numerically to such date
one, two, three or six months thereafter; PROVIDED, HOWEVER, that if there
is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the last Business
Day of such next, second, third or sixth succeeding month. If an Interest
Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, PROVIDED,
HOWEVER, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business
Day.
"INTEREST RATE AGREEMENTS" is defined in SECTION 7.3(P) hereof.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or
other securities, or of a beneficial interest in any Indebtedness, Equity
Interests or other securities, issued by any other Person, (ii) any
purchase by that Person of all or substantially all of the assets of a
business conducted by another Person, and (iii) any loan, advance (other
than deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable, advances to employees and
similar items made or incurred in the ordinary course of business) or
capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person
other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means (i) the Lender(s) which have issued the Existing
Letters of Credit; (ii) ABN AMRO, (iii) Michigan National and (iv) any
other Lender which, at the Borrower's request, agrees, in each such
Lender's sole discretion, to become an Issuing Bank for the purpose of
issuing Letters of Credit, and their respective successors and assigns, in
each case in such Lender's separate capacity as an issuer of Letters of
Credit pursuant to SECTION 3.1. The designation of any Lender as an
Issuing Bank after the date hereof shall be subject to the prior written
consent of the Arrangers.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a
Letter of Credit.
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"L/C INTEREST" shall have the meaning ascribed to such term in SECTION
3.5 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under
each of the Letters of Credit, (ii) the face amount of all outstanding L/C
Drafts corresponding to the Letters of Credit, which L/C Drafts have been
accepted by the applicable Issuing Bank, (iii) the aggregate outstanding
amount of all Reimbursement Obligations at such time and (iv) the aggregate
face amount of all Letters of Credit requested by the Borrower but not yet
issued (unless the request for an unissued Letter of Credit has been
denied).
"LEASE ADJUSTED LEVERAGE RATIO" is defined in SECTION 7.4(C) hereof.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or any Agent,
any office, branch, subsidiary or affiliate of such Lender or Agent.
"LETTER OF CREDIT" means (a) the Existing Letters of Credit and (b)
the letters of credit to be issued by the Issuing Banks pursuant to SECTION
3.1 hereof.
"LEVERAGE RATIO" is defined in SECTION 7.4(B) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor
or lessor under any conditional sale, Capitalized Lease or other title
retention agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of
any Advance made pursuant to SECTION 2.1, SECTION 2.2(A) or SECTION 2.3
hereof, as applicable, and in the case of the Swing Line Bank, any Swing
Line Loan made pursuant to SECTION 2.2(B) hereof, and collectively all Term
Loans, Revolving Loans, Swing Line Loans and Acquisition Facility Loans,
whether made or continued as or converted to Floating Rate Loans or
Eurodollar Rate Loans.
"LOAN ACCOUNT" is defined in SECTION 2.14(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Notes and all other
documents, instruments and agreements executed in connection therewith or
contemplated thereby, as the same may be amended, restated or otherwise
modified and in effect from time to time.
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"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, or the Borrower and its
Subsidiaries, taken as a whole, (b) the ability of the Borrower or any of
its Subsidiaries to perform their respective obligations under the Loan
Documents in any material respect, or (c) the ability of the Lenders or the
Agents to enforce in any material respect the Obligations.
"MATERIAL SUBSIDIARY" means (a) any "Significant Subsidiary" as
defined in Regulation S-X issued pursuant to the Securities Act and the
Exchange Act and (b) any other Subsidiary of the Borrower which accounts
for five percent (5%) or more of the Borrower's EBITDA.
"MICHIGAN NATIONAL" means Michigan National Bank, in its individual
capacity, and its successors.
"MORTGAGE(S)" means those certain mortgages or deeds of trust executed
on the date hereof or from time to time hereafter in accordance with the
terms of this Agreement or the other Collateral Documents by the Borrower
and its Subsidiaries in favor of the Collateral Agent as amended, restated
or otherwise modified from time to time with respect to any real property
owned by the Borrower or any of its Subsidiaries.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in
Section 4001(a)(3) of ERISA which is, or within the immediately preceding
six (6) years was, contributed to by either the Borrower or any member of
the Controlled Group.
"NET CASH PROCEEDS" means, with respect to any Asset Sale or Financing
by any Person, (a) cash (freely convertible into Dollars) received by such
Person or any Subsidiary of such Person from such Asset Sale (including
cash received as consideration for the assumption or incurrence of
liabilities incurred in connection with or in anticipation of such Asset
Sale) or from such Financing, after (i) provision for all income or other
taxes measured by or resulting from such Asset Sale, (ii) payment of all
brokerage commissions, underwriter's fees and commissions and other fees
and expenses related to such Asset Sale or Financing, and (iii) all amounts
used to repay Indebtedness secured by a Lien on any asset disposed of in
any Asset Sale or which is or may be required (by the express terms of the
instrument governing such Indebtedness) to be repaid in connection with
such Asset Sale (including payments made to obtain or avoid the need for
the consent of any holder of such Indebtedness), and (b) cash payments in
respect of any other consideration received by such Person or any
Subsidiary of such Person from such Asset Sale or Financing upon receipt of
such cash payments by such Person or such Subsidiary.
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"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NET REDEMPTION AMOUNT" for any period means an amount (if positive)
equal to (A) the aggregate amount of all redemptions, retirements,
purchases or other acquisitions for value, direct or indirect, of any
Equity Interests of the Borrower during such period MINUS (B) the aggregate
amount of Net Cash Proceeds realized from the sale of Equity Interests
(other than Disqualified Stock) of the Borrower to customers of the
Borrower and its Subsidiaries during such period.
"NON PRO RATA LOAN" is defined in SECTION 9.2 hereof.
"NOTES" means the Acquisition Facility Notes, Revolving Notes, Term
Notes and Swing Line Note.
"NOTICE OF ASSIGNMENT" is defined in SECTION 13.3(B) hereof.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to any Agent, any
Arranger, the Swing Line Bank, any Lender, any Issuing Bank, any Affiliate
of any Agent, any Arranger or Lender, or any Indemnitee, of any kind or
nature, present or future, arising under this Agreement, the Notes or any
other Loan Document, whether or not evidenced by any note, guaranty or
other instrument, whether or not for the payment of money, whether arising
by reason of an extension of credit, loan, guaranty, indemnification, or in
any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed), and
any other sum chargeable to the Borrower under this Agreement or any other
Loan Document.
"OFF BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with
respect to accounts or notes receivable sold by such Person or any of its
Subsidiaries, (b) any liability under any sale and leaseback transactions
which do not create a liability on the consolidated balance sheet of such
Person, (c) any liability under any financing lease, tax retention
operating lease or so-called "synthetic" lease transaction, or (d) any
obligations arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheets of such Person
and its Subsidiaries.
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"OTHER TAXES" is defined in SECTION 2.14(E)(II) hereof.
"PARTICIPANTS" is defined in SECTION 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each March, June,
September and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERMITTED ACQUISITION" is defined in SECTION 7.3(G) hereof.
"PERMITTED CARRYOVER AMOUNT" is defined in SECTION 7.3(F).
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means Contingent
Obligations of the Borrower and its Subsidiaries identified as such on
SCHEDULE 1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrower and its Subsidiaries identified as such on SCHEDULE 1.1.2 to this
Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower
and its Subsidiaries identified as such on SCHEDULE 1.1.3 to this
Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower
and its Subsidiaries identified as such on SCHEDULE 1.1.4 to this
Agreement.
"PERMITTED HYBRID SECURITIES" means instruments or securities issued
by the Borrower as part of the purchase price in connection with a
Permitted Acquisition which contain primarily equity attributes or
features, any payments in connection with which are subordinated to
payment of the Secured Obligations to the satisfaction of the Agents and
the other terms of which are acceptable to the Required Lenders.
"PERMITTED MICHIGAN NATIONAL TRANSFERS" is defined in SECTION 13.3(A)
hereof.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in SECTION
7.3(A)(VI) hereof.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement,
including, without limitation, of the Borrower's Permitted Existing
Indebtedness consisting of its outstanding variable rate notes, that (i)
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does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the
Indebtedness being replaced, renewed, refinanced or extended, (ii) does not
have a Weighted Average Life to Maturity at the time of such replacement,
renewal, refinancing or extension that is less than the Weighted Average
Life to Maturity of the Indebtedness being replaced, renewed, refinanced or
extended, (iii) does not rank at the time of such replacement, renewal,
refinancing or extension senior to the Indebtedness being replaced,
renewed, refinanced or extended, and (iv) does not contain terms
(including, without limitation, terms relating to security, amortization,
interest rate, premiums, fees, covenants, event of default and remedies)
materially less favorable to the Borrower or to the Lenders than those
applicable to the Indebtedness being replaced, renewed, refinanced or
extended.
"PERMITTED SWEEP ACCOUNTS" is defined in SECTION 2.20(A) hereof.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company or other entity of
any kind, or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLEDGE AGREEMENTS" means (a) the Borrower Pledge Agreement; (b) the
Pledge Agreement dated as of the date hereof executed by Shield Insurance
Services, Inc., a Michigan corporation, in favor of the Collateral Agent
with respect to 100% of the Capital Stock owned by it of Shield Benefit
Administrators, Inc.; and (c) any pledge agreement executed by any
Subsidiary with respect to the Capital Stock of any other Subsidiary
executed pursuant to the terms of SECTION 7.2(N), in each case, as amended,
modified, supplemented and/or restated (including to add additional pledged
Capital Stock of additional Subsidiaries.
"PLAN" means an employee benefit plan as defined in Section 3(3) of
ERISA in respect of which the Borrower or any member of the Controlled
Group is, or within the immediately preceding six (6) years was, an
"employer" as defined in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest reported as the "Prime Rate"
in THE WALL STREET JOURNAL as of each respective business day or, in the
case of each non-business day, as reported as of the immediately preceding
business day. In the event that THE WALL STREET JOURNAL ceases reporting
the Prime Rate, then "Prime Rate" shall mean the rate announced publicly
from time to time by the Administrative Agent, to be its prime commercial
lending rate. Each change in the Prime Rate shall be effective on the date
such change is announced. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate charged by the Administrative
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Agent or any of the Lenders to any customers. The Administrative Agent and
the other Lenders may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"PRO RATA SHARE" means, with respect to any Lender, (i) at any time
prior to the Closing Date, the percentage obtained by dividing (A) such
Lender's Commitments at such time (in each case, as adjusted from time to
time in accordance with the provisions of this Agreement) by (B) the sum of
the Aggregate Acquisition Facility Commitment, the Aggregate Term Loan
Commitment and the Aggregate Revolving Loan Commitment at such time and
(ii) at any time after the Closing Date, the percentage obtained by
dividing (A) the sum of such Lender's Term Loans, Revolving Loan Commitment
and Acquisition Facility Commitment (or, after the Term Loan Conversion
Date, the outstanding principal balance of such Lender's Acquisition
Facility Loans) at such time (in each case, as adjusted from time to time
in accordance with the provisions of this Agreement) by (B) the sum of the
aggregate amount of all of the Term Loans, the Aggregate Revolving Loan
Commitment and the Aggregate Acquisition Facility Commitment (or, after the
Term Loan Conversion Date, the outstanding principal balance of all
Acquisition Facility Loans) at such time; PROVIDED, HOWEVER, if all of the
Commitments are terminated pursuant to the terms of this Agreement, then
"Pro Rata Share" means the percentage obtained by dividing (x) the sum of
such Lender's Term Loans, Acquisition Facility Loans, Revolving Loans and
L/C Obligations and in the case of the Swing Line Bank, Swing Line Loans,
by (y) the aggregate amount of all Term Loans, Acquisition Facility Loans,
Revolving Loans, L/C Obligations and Swing Line Loans.
"PURCHASERS" is defined in SECTION 13.3(A) hereof.
"RATE OPTION" means the Eurodollar Rate or the Floating Rate.
"REGISTER" is defined in SECTION 13.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors
relating to the extension of credit by and to brokers and dealers of
securities for the purpose of purchasing or carrying margin stock (as
defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks for the purpose of purchasing
or carrying Margin Stock applicable to member banks of the Federal Reserve
System.
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"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors
relating to the extension of credit by foreign lenders for the purpose of
purchasing or carrying margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in SECTION 3.6 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration
into the indoor or outdoor environment, including the movement of
Contaminants through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by
such Person under any lease of real or personal property but does not
include any amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in SECTION 2.19 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a
Plan, excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within 30 days after such event occurs, PROVIDED, HOWEVER, that a failure
to meet the minimum funding standards of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance
of any such waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are equal to or greater than sixty-six and two-thirds percent
(66-2/3%); PROVIDED, HOWEVER, that, if any of the Lenders shall have failed
to fund its Revolving Loan Pro Rata Share of any Revolving Loan requested
by the Borrower, Acquisition Loan Pro Rata Share of any Acquisition
Facility Loan requested by the Borrower or Revolving Loan Pro Rata Share of
any Swing Line Loan as requested by the Administrative Agent which such
Lenders are obligated to fund under the terms of this Agreement and any
such failure has not been cured, then for so long as such failure
continues, "REQUIRED LENDERS" means Lenders (excluding all Lenders whose
failure to fund their applicable pro rata shares of such Revolving Loans,
Acquisition Facility Loans or Swing Line Loans has not been so cured) whose
Pro Rata Shares represent equal to or greater than sixty-six and two-third
percent (66-2/3%) of the aggregate Pro Rata Shares of such Lenders;
PROVIDED FURTHER, HOWEVER, that, if the Commitments have been terminated
pursuant to the terms of this Agreement, "REQUIRED LENDERS" means Lenders
(without regard to such Lenders' performance of their respective
obligations hereunder) whose aggregate ratable shares (stated as a
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percentage) of the aggregate outstanding principal balance of all Loans and
L/C Obligations are equal to or greater than sixty-six and two-thirds
percent (66-2/3%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law,
rule or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject including, without limitation, the Securities Act of
1933, the Securities Exchange Act of 1934, Regulations T, U and X, ERISA,
the Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act, Americans with Disabilities Act of 1990, and any
certificate of occupancy, zoning ordinance, building, environmental or land
use requirement or permit or environmental, labor, employment, occupational
safety or health law, rule or regulation, including Environmental, Health
or Safety Requirements of Law.
"RESERVE REQUIREMENT" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"RESERVES" shall mean the maximum reserve requirement, as prescribed
by the Board of Governors of the Federal Reserve System (or any successor)
with respect to "Eurocurrency liabilities" or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or category of
extensions of credit or other assets which includes loans by a non-United
States office of any Lender to United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Borrower now
or hereafter outstanding, except a dividend payable solely in the
Borrower's Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to purchase such Capital Stock, (ii) any
redemption, retirement, purchase or other acquisition for value, direct or
indirect, of any Equity Interests of the Borrower or any of its
Subsidiaries now or hereafter outstanding, other than in exchange for, or
out of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Borrower) of other Equity Interests of the Borrower
(other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct
or indirect, of any Indebtedness other than the Obligations, (iv) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness
(other than the Obligations) or any Equity Interests of the Borrower or any
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of the Borrower's Subsidiaries, or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim
for damages or rescission and (v) any payment of management fees (or other
fees of a similar nature) to any holder of Equity Interests in the Borrower
or any member of management of the Borrower.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which the Aggregate Revolving Loan Commitment at such time
exceeds the Revolving Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Revolving Loans at such time
PLUS (ii) the outstanding principal amount of the Swing Line Loans at such
time PLUS (iii) the L/C Obligations at such time.
"REVOLVING LOAN" is defined in SECTION 2.2(A) hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in
Letters of Credit and Swing Line Loans not exceeding the amount set forth
on EXHIBIT A to this Agreement opposite its name thereon under the heading
"Revolving Loan Commitment" or the Assignment Agreement by which it became
a Lender, as such amount may be modified from time to time pursuant to the
terms of this Agreement or to give effect to any applicable assignment and
acceptance.
"REVOLVING LOAN PRO RATA SHARE" shall mean, at any particular time and
with respect to any Lender, a fraction (expressed as a percentage), the
numerator of which shall be the then aggregate amount of such Lender's
Revolving Loan Commitment (or, if such Commitments have been terminated,
the outstanding principal balance of such Lender's Revolving Loans) and the
denominator of which shall be the then aggregate amount of all Revolving
Loan Commitments (or, if such Commitments have been terminated, the
outstanding principal balance of all Revolving Loans).
"REVOLVING LOAN TERMINATION DATE" means March 18, 2005.
"REVOLVING NOTE" means a note, in substantially the form of EXHIBIT
B-1 hereto, duly executed by the Borrower and payable to the order of a
Lender in the amount of its Revolving Loan Commitment, including any
amendment, restatement, modification, renewal or replacement of such
Revolving Note.
"RISK-BASED CAPITAL GUIDELINES" is defined in SECTION 4.2 hereof.
"SCHEDULED REDEMPTIONS" is defined in SECTION 7.3(F)(II).
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"SECURED OBLIGATIONS" means, collectively, (i) the Obligations and
(ii) all Hedging Obligations owing under Interest Rate Agreements to any
Lender or any affiliate of any Lender.
"SECURITY AGREEMENT(S)" means those certain Security Agreements of
even date herewith executed by the Borrower and each of its Subsidiaries
(whether in one agreement or multiple agreements) in favor of the
Collateral Agent for the benefit of the Holders of Secured Obligations, as
amended, restated or otherwise modified from time to time.
"SOLVENT" shall mean, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair valuation and at
present fair saleable value) is equal to or in excess of the total
amount of its liabilities, including, without limitation, contingent
liabilities; and
(ii) it is then able and expects to be able to pay its debts as
they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an
actual or matured liability.
"SPECIFIED ACQUISITIONS" mean (i) the acquisition transaction under
the Stock Purchase Agreement dated as of February 25, 1999 by and between
Valuland, Inc., Donald J. Koop, Janet Koop, Donald Koop Trust, Janet Koop
Trust, Lynda S. Kruithoff Trust, Laura L. De Haan Trust, John P. Koop Trust
and Daniel J. Koop Trust, as joined in by DK&RK, L.L.C. and Golden Eagle,
L.L.C. and Borrower with respect to the acquisition of the Capital Stock of
Family Fare, Inc., Family Fare Management Services, Inc. and Family Fare
Trucking, Inc.; and (ii) the acquisition transaction under the Asset
Purchase Agreement by and between Glen's Market, Inc., Catt's Realty Co.
and Glen's Pharmacy, Inc., as sellers and Valuland, Inc., as buyer, as
joined in by certain shareholders and by Universal Land Company and the
Borrower.
"SUBORDINATED INDEBTEDNESS" means any unsecured Indebtedness of the
Borrower the payment of which is subordinated to payment of the Secured
Obligations to the satisfaction of the Agents and the other terms
(including, without limitation those with respect to amount, maturity
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(which shall not be prior to six (6) months after the Termination Date),
amortization, interest rate, premiums, fees, covenants, events of default
and remedies) of which are acceptable to the Agents.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by such Person or
by one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, association, joint venture or
similar business organization more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to
a "Subsidiary" shall mean a Subsidiary of the Borrower.
"SWING LINE BANK" means the Designated Lender or any other Lender as a
successor Swing Line Bank.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $5,000,000 at any
one time outstanding.
"SWING LINE LOAN" means any Swing Line Loan made available to the
Borrower by the Swing Line Bank pursuant to SECTION 2.2(B) hereof.
"SWING LINE NOTE" means a promissory note, in substantially the form
of EXHIBIT B-5 hereto, duly executed by the Borrower and payable to the
order of the Swing Line Bank in the amount of its Swing Line Commitment,
including any amendment, restatement, modification, renewal or replacement
of such Swing Line Note.
"SYNDICATION AGENT" means ABN AMRO Bank N.V. in its capacity as
syndication agent for itself and the Lenders, together with any successor
entity thereto.
"TAXES" is defined in SECTION 2.14(E)(I) hereof.
"TERM LOANS" means, collectively, the Tranche A Term Loans, the
Tranche B Term Loans and, after the Term Loan Conversion Date, the
Acquisition Facility Loans.
"TERM NOTES" means, collectively, the Tranche A Term Notes, the
Tranche B Term Notes and, after the Term Loan Conversion Date, the
Acquisition Facility Notes.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination of the Aggregate
Revolving Loan Commitment pursuant to SECTION 2.5 hereof or the Commitments
pursuant to SECTION 9.1 hereof.
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"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the
Borrower or such Controlled Group member was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA or the cessation of operations which
results in the termination of employment of twenty percent (20%) of Benefit
Plan participants who are employees of the Borrower or any member of the
Controlled Group; (iii) the imposition of an obligation on the Borrower or
any member of the Controlled Group under Section 4041 of ERISA to provide
affected parties written notice of intent to terminate a Benefit Plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the
institution by the PBGC of proceedings to terminate a Benefit Plan; (v) any
event or condition which might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan; or (vi) the partial or complete withdrawal of
the Borrower or any member of the Controlled Group from a Multiemployer
Plan.
"TERM LOAN CONVERSION DATE" is defined in SECTION 2.3 hereof.
"TERM NOTE" means a Tranche A Term Note, a Tranche B Term Note, or,
after the Term Loan Conversion Date, an Acquisition Facility Note.
"TOTAL DEBT" means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of Indebtedness of the Borrower and
its Subsidiaries, other than the sum of the amounts then owed by the
Borrower and its Subsidiaries in respect of Hedging Obligations; PROVIDED:
(i) Contingent Obligations in connection with Customer Guarantied
Indebtedness up to an aggregate principal amount not to exceed $15,000,000
shall be excluded from the calculation of Total Debt (with all amounts in
excess of such amount being included in the calculation of Total Debt);
(ii) so long as such obligations remain contingent, Contingent Obligations
in connection with Customer Lease Guaranties shall be excluded from the
calculation of Total Debt; and (iii) there shall be included in Total Debt
all amounts for which payment has been demanded or otherwise sought from
the Borrower or any of its Subsidiaries in connection with any Customer
Loan Guaranties or Customer Lease Guaranties.
"TRANCHE A PRO RATA SHARE" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the
numerator of which shall be the then outstanding principal balance of such
Lender's Tranche A Term Loans and the denominator of which shall be the
then outstanding principal balance of all Tranche A Term Loans.
"TRANCHE A TERM LOAN" is defined in SECTION 2.1(A) hereof.
"TRANCHE A TERM LOAN COMMITMENT" means, for each Lender, the
obligation of such Lender to make its Tranche A Term Loan pursuant to the
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terms and conditions of this Agreement, and which shall not exceed the
principal amount set forth on EXHIBIT B to this Agreement opposite its name
thereon under the heading "Tranche A Term Loan Commitment", as such amount
may be modified from time to time pursuant to the terms hereof.
"TRANCHE A TERM LOAN LENDER" means any Lender with a Tranche A Term
Loan Commitment.
"TRANCHE A TERM LOAN TERMINATION DATE" means the earlier of (a) March
18, 2005 or (b) the date of termination of the Revolving Loan Commitments
pursuant to SECTION 2.5 or SECTION 8.1.
"TRANCHE A TERM NOTE" means a promissory note, in substantially the
form of EXHIBIT B-2 hereto, duly executed by the Borrower and payable to
the order of a Lender in the amount of its Tranche A Term Loan Commitment,
including any amendment, restatement, modification, renewal or replacement
of such Tranche A Term Note.
"TRANCHE B PRO RATA SHARE" shall mean, at any particular time and with
respect to any Lender, a fraction (expressed as a percentage), the
numerator of which shall be the then outstanding principal balance of such
Lender's Tranche B Term Loans and the denominator of which shall be the
then outstanding principal balance of all Tranche B Term Loans.
"TRANCHE B TERM LOAN" is defined in SECTION 2.1(B) hereof.
"TRANCHE B TERM LOAN COMMITMENT" means, for each Lender, the
obligation of such Lender to make its Tranche B Term Loan pursuant to the
terms and conditions of this Agreement, and which shall not exceed the
principal amount set forth on EXHIBIT B to this Agreement opposite its name
thereon under the heading "Tranche B Term Loan Commitment", as such amount
may be modified from time to time pursuant to the terms hereof.
"TRANCHE B TERM LOAN LENDER" means any Lender with a Tranche B Term
Loan Commitment.
"TRANCHE B TERM LOAN TERMINATION DATE" means March 18, 2007.
"TRANCHE B TERM NOTE" means a promissory note, in substantially the
form of EXHIBIT B-3 hereto, duly executed by the Borrower and payable to
the order of a Lender in the amount of its Tranche B Term Loan Commitment,
including any amendment, restatement, modification, renewal or replacement
of such Tranche B Term Note.
"TRANSFEREE" is defined in SECTION 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurodollar Rate Loan.
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"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"YEAR 2000 ISSUES" means the anticipated costs, problems and
uncertainties associated with the inability of certain computer
applications to effectively handle dates on and after January 1, 2000, as
such inability affects the business, operations, and financial condition of
the Borrower, or the Borrower and its Subsidiaries or of the Borrower's and
its Subsidiaries' material customers, suppliers and vendors.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment, by (ii)
the then outstanding principal amount of such Indebtedness.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used
in this Agreement which are not specifically defined herein shall have the
meanings customarily given them in accordance with generally accepted
accounting principles in existence as of the date hereof.
1.2 REFERENCES. The existence throughout the Agreement of references
to the Borrower's Subsidiaries is for a matter of convenience only. Any
references to Subsidiaries of the Borrower set forth herein shall not in
any way be construed as consent by any Agent or any Lender to the
establishment, maintenance or acquisition of any Subsidiary, except as may
otherwise be permitted hereunder.
1.3 SUPPLEMENTAL DISCLOSURE. At any time at the request of any Agent
and at such additional times as the Borrower determines, the Borrower shall
supplement each schedule or representation herein or in the other Loan
Documents with respect to any matter hereafter arising which, if existing
or occurring at the date of this Agreement, would have been required to be
set forth or described in such schedule or as an exception to such
representation or which is necessary to correct any information in such
schedule or representation which has been rendered inaccurate thereby.
Unless any such supplement to such schedule or representation discloses the
existence or occurrence of events, facts or circumstances which are not
prohibited by the terms of this Agreement or any other Loan Documents, such
supplement to such schedule or representation shall not be deemed an
amendment thereof unless expressly consented to in writing by the Required
Lenders, and no such amendments, except as the same may be consented to in
a writing which expressly includes a waiver, shall be or be deemed a waiver
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by any Lender of any Default disclosed therein. Any items disclosed in any
such supplemental disclosures shall be included in the calculation of any
limits, baskets or similar restrictions contained in this Agreement or any
of the other Loan Documents.
ARTICLE II: THE TERM LOAN AND REVOLVING LOAN FACILITIES
2.1. TERM LOANS. (A) AMOUNT OF TRANCHE A TERM LOANS. Subject to the
terms and conditions set forth in this Agreement, each Tranche A Term Loan
Lender on the Closing Date severally and not jointly agrees to make on the
Closing Date, a term loan, in Dollars, to the Borrower in an amount equal
to such Lender's Tranche A Term Loan Commitment (each individually, a
"TRANCHE A TERM LOAN" and, collectively, the "TRANCHE A TERM LOANS");
PROVIDED, HOWEVER, notwithstanding anything herein to the contrary
$40,666,666.66 of the Tranche A Term Loans shall be funded to and held by
the "Escrow Agent" as defined in and subject to the terms of the Escrow
Agreement and this Agreement. All Tranche A Term Loans shall be made by
the Lenders on the Closing Date simultaneously and proportionately to their
respective Tranche A Pro Rata Shares, it being understood that no Lender
shall be responsible for any failure by any other Lender to perform its
obligation to make any Tranche A Term Loan hereunder nor shall the Tranche
A Term Loan Commitment of any Lender be increased or decreased as a result
of any such failure.
(B) AMOUNT OF TRANCHE B TERM LOANS. Subject to the terms and
conditions set forth in this Agreement, each Tranche B Term Loan Lender on
the Closing Date severally and not jointly agrees to make on the Closing
Date, a term loan, in Dollars, to the Borrower in an amount equal to such
Lender's Tranche B Term Loan Commitment (each individually, a "TRANCHE B
TERM LOAN" and, collectively, the "TRANCHE B TERM LOANS"); PROVIDED,
HOWEVER, notwithstanding anything herein to the contrary $82,333,333.43 of
the Tranche B Term Loans shall be funded to and held by the "Escrow Agent"
as defined in and subject to the terms of the Escrow Agreement and this
Agreement. All Tranche B Term Loans shall be made by the Lenders on the
Closing Date simultaneously, it being understood that no Lender shall be
responsible for any failure by any other Lender to perform its obligation
to make any Tranche B Term Loan hereunder nor shall the Tranche B Term Loan
Commitment of any Lender be increased or decreased as a result of any such
failure.
(C) BORROWING NOTICE. The Borrower shall deliver to the Agents a
Borrowing Notice, signed by it on the Closing Date. Such Borrowing Notice
shall specify (i) the aggregate amount of the Tranche A Term Loans
($100,000,000) and Tranche B Term Loans ($150,000,000) and
(ii) instructions for the disbursement of the proceeds of the Term Loans.
The Term Loans shall initially be Floating Rate Loans and thereafter may be
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<PAGE>
continued as Floating Rate Loans or converted into Eurodollar Rate Loans in
the manner provided in SECTION 2.9 and subject to the other conditions and
limitations therein set forth and set forth in this ARTICLE II. Any
Borrowing Notice given pursuant to this SECTION 2.1(C) shall be
irrevocable.
(D) MAKING OF TERM LOANS. Promptly after receipt of the Borrowing
Notice under SECTION 2.1(C) in respect of the Term Loans, the
Administrative Agent shall notify each Lender by telex or telecopy, or
other similar form of transmission, of the proposed Advance. Each Lender
shall deposit an amount equal to its Tranche A Pro Rata Share of the
Tranche A Term Loans and Tranche B Pro Rata Share of the Tranche B Term
Loans with the Administrative Agent at its office in Farmington Hills,
Michigan, in immediately available funds, on the Closing Date specified in
the Borrowing Notice. Subject to the fulfillment of the conditions
precedent set forth in SECTIONS 5.1 and 5.2 and, with respect to that
portion of such amounts which shall be funded into the escrow created by
the Escrow Agreement, subject to fulfillment of the provisions of the
Escrow Agreement, the Administrative Agent shall make the proceeds of such
amounts received by it available to the Borrower at the Administrative
Agent's office in Farmington Hills, Michigan on such Closing Date (or if
later the date on which the applicable conditions under the Escrow
Agreement are satisfied) and shall disburse such proceeds in accordance
with the Borrower's disbursement instructions set forth in such Borrowing
Notice. The failure of any Lender to deposit the amount described above
with the Administrative Agent on the Closing Date shall not relieve any
other Lender of its obligations hereunder to make its Term Loans on the
Closing Date.
(E) REPAYMENT OF THE TRANCHE A TERM LOANS. (i) The Tranche A Term
Loans shall be repaid in nineteen (19) consecutive quarterly installments,
payable on the last Business Day of each calendar quarter, commencing June
30, 2000 and continuing thereafter until December 31, 2004 with a final
installment payable on the Tranche A Term Loan Termination Date, and the
Tranche A Term Loans shall be permanently reduced by the amount of each
installment on the date payment thereof is made hereunder. The
installments shall be in the aggregate amounts set forth below:
<TABLE>
<CAPTION>
INSTALLMENT DATE INSTALLMENT AMOUNT
---------------- ------------------
<S> <C> <C>
June 30, 2000 $5,000,000
September 30, 2000 $5,000,000
December 31, 2000 $5,000,000
March 31, 2001 $5,000,000
June 30, 2001 $5,000,000
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<PAGE>
September 30, 2001 $5,000,000
December 31, 2001 $5,000,000
March 31, 2002 $5,000,000
June 30, 2002 $5,000,000
September 30, 2002 $5,000,000
December 31, 2002 $5,000,000
March 31, 2003 $5,000,000
June 30, 2003 $5,000,000
September 30, 2003 $5,000,000
December 31, 2003 $5,000,000
March 31, 2004 $5,000,000
June 30, 2004 $5,000,000
September 30, 2004 $5,000,000
December 31, 2004 $5,000,000
Tranche A Term Loan
Termination Date $5,000,000
</TABLE>
Notwithstanding the foregoing, the final installment shall be in the amount
of the then outstanding principal balance of the Tranche A Term Loans. In
addition, the then outstanding principal balance of the Tranche A Term
Loans, if any, shall be due and payable on the Tranche A Term Loan
Termination Date. No installment of any Tranche A Term Loan shall be
reborrowed once repaid.
(F) REPAYMENT OF THE TRANCHE B TERM LOANS. (i) The Tranche B Term
Loans shall be repaid in fifteen (15) consecutive semi-annual installments,
payable on the last Business Day of September and March of each year,
commencing September 30, 1999 and continuing thereafter until September 30,
2006, and a final installment payable on the Tranche B Term Loan
Termination Date, and the Tranche B Term Loans shall be permanently reduced
by the amount of each installment on the date payment thereof is made
hereunder. The installments shall be in the amounts set forth below:
<TABLE>
<CAPTION>
INSTALLMENT DATE INSTALLMENT AMOUNT
---------------- ------------------
<S> <C> <C>
September 30, 1999 $ 250,000
March 31, 2000 $ 250,000
September 30, 2000 $ 250,000
March 31, 2001 $ 250,000
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<PAGE>
September 30, 2001 $ 250,000
March 31, 2002 $ 250,000
September 30, 2002 $ 250,000
March 31, 2003 $ 250,000
September 30, 2003 $ 250,000
March 31, 2004 $ 250,000
September 30, 2004 $ 250,000
March 31, 2005 $ 250,000
September 30, 2005 $ 250,000
March 31, 2006 $ 250,000
September 30, 2006 $ 250,000
Tranche B Term Loan
Termination Date $146,250,000
</TABLE>
Notwithstanding the foregoing, the final installment shall be in the amount
of the then outstanding principal balance of the Tranche B Term Loans. In
addition, the then outstanding principal balance of the Tranche B Term
Loans, if any, shall be due and payable on the Tranche B Termination Date.
No installment of any Tranche B Term Loan shall be reborrowed once repaid.
(ii) In addition to the scheduled payments on the Term Loans, the
Borrower (a) may make the voluntary prepayments described in SECTION 2.4(A)
for credit against the scheduled payments on the Term Loans pursuant to
SECTION 2.4(A) and (b) shall make the mandatory prepayments prescribed in
SECTION 2.4(B) for credit against the scheduled payments on the Term Loans
pursuant to SECTION 2.4(B).
2.2 REVOLVING LOANS. (A) SYNDICATED ADVANCES. Upon the
satisfaction of the conditions precedent set forth in SECTIONS 5.1 and 5.2,
from and including the date of this Agreement and prior to the Termination
Date, each Lender severally and not jointly agrees, on the terms and
conditions set forth in this Agreement, to make revolving loans to the
Borrower from time to time, in Dollars, in an amount not to exceed such
Lender's Revolving Loan Pro Rata Share of Revolving Credit Availability at
such time (each individually, a "REVOLVING LOAN" and, collectively, the
"REVOLVING LOANS"); PROVIDED, HOWEVER, at no time shall the Revolving
Credit Obligations exceed the Aggregate Revolving Loan Commitment. Subject
to the terms of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans at any time prior to the Termination Date. The Revolving
Loans made on the Closing Date shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted into
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<PAGE>
Eurodollar Rate Loans in the manner provided in SECTION 2.9 and subject to
the other conditions and limitations therein set forth and set forth in
this ARTICLE II. On the Termination Date, the Borrower shall repay in full
the outstanding principal balance of the Revolving Loans. Each Advance
under this SECTION 2.2(A) shall consist of Revolving Loans made by each
Lender ratably in proportion to such Lender's respective Revolving Loan Pro
Rata Share of the Aggregate Revolving Loan Commitment.
(B) SWING LINE LOANS.
(i) AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the
conditions precedent set forth in SECTION 5.1 and 5.2, from and including
the Closing Date and prior to the Revolving Loan Termination Date, the
Swing Line Bank agrees, on the terms and conditions set forth in this
Agreement, to make swing line loans to the Borrower from time to time, in
Dollars, in an amount not to exceed the Swing Line Commitment (each,
individually, a "SWING LINE LOAN" and collectively, the "SWING LINE
LOANS"); PROVIDED, HOWEVER, at no time shall the Revolving Credit
Obligations exceed the Aggregate Revolving Loan Commitment. Subject to the
terms of this Agreement, the Borrower may borrow, repay and reborrow Swing
Line Loans at any time prior to the Termination Date.
(ii) BORROWING NOTICE. The Borrower shall deliver to the
Administrative Agent and the Swing Line Bank a Borrowing Notice, signed by
it, not later than 2:00 p.m. (Farmington Hills, Michigan time) on the
Borrowing Date of each Swing Line Loan, specifying (A) the applicable
Borrowing Date (which shall be a Business Day), and (B) the aggregate
amount of the requested Swing Line Loan. The Swing Line Loans shall at all
times be Floating Rate Loans, which shall be an amount not less than
$500,000 and increments of $100,000 in excess thereof. The Administrative
Agent shall promptly notify each Lender of such request.
(iii) MAKING OF SWING LINE LOANS. Promptly after receipt of the
Borrowing Notice under SECTION 2.2(B)(II) in respect of Swing Line Loans,
the Administrative Agent shall notify each Lender by telex or telecopy, or
other similar form of transmission, of the requested Swing Line Loan. Not
later than 4:00 p.m. (Farmington Hills, Michigan time) on the applicable
Borrowing Date, the Swing Line Bank shall make available its Swing Line
Loan, in funds immediately available in Farmington Hills, Michigan to the
Administrative Agent at its address specified pursuant to ARTICLE XIV. The
Administrative Agent will promptly make the funds so received from the
Swing Line Bank available to the Borrower at the Administrative Agent's
aforesaid address.
(iv) REPAYMENT OF SWING LINE LOANS. The Swing Line Loans shall be
evidenced by the Swing Line Note, and each Swing Line Loan shall be paid in
full by the Borrower on or before the tenth Business Day after the
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<PAGE>
Borrowing Date for such Swing Line Loan. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans or, in a
minimum amount and increments of $100,000, any portion of the outstanding
Swing Line Loans, upon notice to the Administrative Agent and the Swing
Line Bank. In addition, the Administrative Agent (i) may at any time in
its sole discretion with respect to any outstanding Swing Line Loan, or
(ii) shall on the tenth Business Day after the Borrowing Date of any Swing
Line Loan, require each Lender (including the Swing Line Bank) to make a
Revolving Loan in the amount of such Lender's Revolving Loan Pro Rata Share
of such Swing Line Loan, for the purpose of repaying such Swing Line Loan.
Not later than 2:00 p.m. (Farmington Hills, Michigan time) on the date of
any notice received pursuant to this SECTION 2.2(B)(IV), each Lender shall
make available its required Revolving Loan or Revolving Loans, in funds
immediately available in Farmington Hills, Michigan to the Administrative
Agent at its address specified pursuant to ARTICLE XIV. Revolving Loans
made pursuant to this SECTION 2.2(B)(IV) shall initially be Floating Rate
Loans and thereafter may be continued as Floating Rate Loans or converted
into Eurodollar Rate Loans in the manner provided in SECTION 2.9 and
subject to the other conditions and limitations therein set forth and set
forth in this ARTICLE II. Unless a Lender shall have notified the Swing
Line Bank, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in SECTIONS 5.1 and 5.2 had not then been
satisfied, such Lender's obligation to make Revolving Loans pursuant to
this SECTION 2.2(B)(IV) to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Administrative Agent, the Swing Line Bank or any other Person,
(b) the occurrence or continuance of a Default or Unmatured Default, (c)
any adverse change in the condition (financial or otherwise) of the
Borrower or any of its Subsidiaries, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails to make
payment to the Administrative Agent of any amount due under this SECTION
2.2(B)(IV), the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise
payable to such Lender hereunder until the Administrative Agent receives
such payment from such Lender or such obligation is otherwise fully
satisfied. In addition to the foregoing, if for any reason any Lender
fails to make payment to the Administrative Agent of any amount due under
this SECTION 2.2(B)(IV), such Lender shall be deemed, at the option of the
Administrative Agent, to have unconditionally and irrevocably purchased
from the Swing Line Bank, without recourse or warranty, an undivided
interest and participation in the applicable Swing Line Loan in the amount
of such Revolving Loan, and such interest and participation may be
recovered from such Lender together with interest thereon at the Federal
Funds Effective Rate for each day during the period commencing on the date
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<PAGE>
of demand and ending on the date such amount is received. On the Revolving
Loan Termination Date, the Borrower shall repay in full the outstanding
principal balance of the Swing Line Loans.
2.3 ACQUISITION FACILITY. Upon the satisfaction of the conditions
precedent set forth in SECTIONS 5.1 and 5.2, from and including the date of
this Agreement and prior to the Term Loan Conversion Date, each Lender
severally and not jointly agrees, on the terms and conditions set forth in
this Agreement, to make term loans to the Borrower from time to time in an
aggregate amount not to exceed such Lender's Acquisition Facility
Commitment (each individually, an "ACQUISITION FACILITY LOAN" and
collectively, the "ACQUISITION FACILITY LOANS"). Each Advance under this
SECTION 2.3 shall consist of Acquisition Facility Loans made by each Lender
ratably in proportion to such Lender's respective Acquisition Loan Pro Rata
Share of the Aggregate Acquisition Facility Commitment. Subject to the
terms of this Agreement, the Borrower may borrow and repay Acquisition
Facility Loans at any time prior to the Term Loan Conversion Date. No
amount of any Acquisition Facility Loan shall be reborrowed once repaid. On
March 18, 2001, the Borrower's option to borrow Acquisition Facility Loans
shall terminate, the Aggregate Acquisition Facility Commitment shall be
reduced to zero and the outstanding principal balance of the Acquisition
Facility Loans shall be converted into amortizing term loans to be repaid
in nineteen (19) consecutive quarterly installments of principal, payable
on the last Business Day of each calendar quarter, commencing June 30, 2001
and continuing thereafter until December 31, 2005 and a final installment
of principal, payable on the Acquisition Loan Termination Date, and the
Acquisition Facility Loans shall be permanently reduced by the amount of
each installment on the date payment thereof is made hereunder. Except as
otherwise set forth herein, the amounts to be repaid on each such quarterly
payment date shall be an amount equal to the installment percentage set
forth below opposite such installment date of the outstanding principal
balance of the Acquisition Facility Loans on the date they converted to
amortizing term loans.
<TABLE>
<CAPTION>
DATE OF INSTALLMENT PERCENTAGE PAYABLE
------------------- ------------------
<S> <C> <C>
June 30, 2001 3.3333%
September 30, 2001 3.33333%
December 31, 2001 3.33333%
March 31, 2002 3.33333%
June 30, 2002 3.33333%
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<PAGE>
September 30, 2002 3.33333%
December 31, 2002 3.33333%
March 31, 2003 3.33333%
June 30, 2003 5.0%
September 30, 2003 5.0%
December 31, 2003 5.0%
March 31, 2004 5.0%
June 30, 2004 5.0%
September 30, 2004 5.0%
December 31, 2004 5.0%
March 31, 2005 5.0%
June 30, 2005 8.33333%
September 30, 2005 8.33333%
December 31, 2005 8.33333%
Acquisition Loan Termination 8.33333%
Date
</TABLE>
Notwithstanding the foregoing, in the event that the aggregate amount of
Acquisition Facility Loans funded subsequent to the Closing Date and prior
to June 30, 2000 is $75,000,000, then, on the date that such aggregate
amount has been funded (the earlier of two years after the closing date and
such date being herein the "TERM LOAN CONVERSION DATE"), the Borrower's
option to borrow Acquisition Facility Loans shall terminate, the Aggregate
Acquisition Facility Commitment shall be reduced to zero and the
outstanding principal balance of the Acquisition Facility Loans shall be
converted into amortizing term loans to be repaid in twenty-three (23)
consecutive quarterly installments of principal, payable on the last
Business Day of each calendar quarter, commencing June 30, 2000 and
continuing thereafter until December 31, 2005 with a final installment of
principal payable on the Acquisition Loan Termination Date, and the
Acquisition Facility Loans shall be permanently reduced by the amount of
each installment on the date payment thereof is made hereunder. The
amounts to be repaid on each such quarterly payment dates shall be as set
forth below:
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<PAGE>
<TABLE>
<CAPTION>
DATE OF INSTALLMENT INSTALLMENT AMOUNTS
------------------- -------------------
<S> <C> <C>
June 30, 2000 $1,250,000
September 30, 2000 $1,250,000
December 31, 2000 $1,250,000
March 31, 2001 $1,250,000
June 30, 2001 $1,250,000
September 30, 2001 $1,250,000
December 31, 2001 $1,250,000
March 31, 2002 $1,250,000
June 30, 2002 $2,500,000
September 30, 2002 $2,500,000
December 31, 2002 $2,500,000
March 31, 2003 $2,500,000
June 30, 2003 $3,750,000
September 30, 2003 $3,750,000
December 31, 2003 $3,750,000
March 31, 2004 $3,750,000
June 30, 2004 $3,750,000
September 30, 2004 $3,750,000
December 31, 2004 $3,750,000
March 31, 2005 $3,750,000
June 30, 2005 $6,250,000
September 30, 2005 $6,250,000
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<PAGE>
December 31, 2005 $6,250,000
Acquisition Loan Termination Date $6,250,000
</TABLE>
Notwithstanding anything herein to the contrary, the final installment
shall be in the amount of the then outstanding principal balance of the
Acquisition Facility Loans.
2.4 OPTIONAL PAYMENTS; MANDATORY PREPAYMENTS.
(A) OPTIONAL PAYMENTS. The Borrower may from time to time repay or
prepay, without penalty or premium all or any part of outstanding Floating
Rate Advances; PROVIDED, that the Borrower may not so prepay Floating Rate
Advances consisting of Term Loans unless it shall have provided at least
one Business Day's written notice to the Agents of such prepayment.
Eurodollar Rate Advances may be voluntarily repaid or prepaid prior to the
last day of the applicable Interest Period, subject to the indemnification
provisions contained in SECTION 4.4, PROVIDED, that the Borrower may not so
prepay Eurodollar Rate Advances unless it shall have provided at least
three Business Days' written notice to the Agents of such prepayment.
Unless the aggregate outstanding principal balance of the Term Loans is to
be prepaid in full, voluntary prepayments of the Term Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess of that amount. Optional prepayments of the Term Loans shall be
applied pro rata between the Tranche A Term Loans, the Tranche B Term Loans
and, after the Term Loan Conversion Date, the Acquisition Facility Loans,
and, in each case, applied on a ratable basis to each of the remaining
installments based upon the respective amounts of such installments.
(B) MANDATORY PREPAYMENTS.
(i) MANDATORY PREPAYMENTS OF TERM LOANS.
(a) Upon the consummation of any Asset Sale or any Financing by
the Borrower or any Subsidiary of the Borrower (other than in
connection with consummation of an "Excluded Transaction" (as defined
below)), within three (3) Business Days after the Borrower's or any of
its Subsidiaries' (i) receipt of any Net Cash Proceeds from any such
Asset Sale or Financing, or (ii) conversion to cash or Cash
Equivalents of non-cash proceeds (whether principal or interest and
including securities, release of escrow arrangements or lease
payments) received from any such Asset Sale or Financing, the Borrower
shall make a mandatory prepayment of the Obligations in an amount
equal to one hundred percent (100%) of such Net Cash Proceeds or such
proceeds converted from non-cash to cash or Cash Equivalents.
Proceeds of Asset Sales with respect to which the Borrower shall have
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<PAGE>
given the Administrative Agent written notice prior to the
consummation of the Asset Sale of the Borrower's or the applicable
Subsidiary's intention to replace the asset sold with like-kind assets
purchased with such Net Cash Proceeds, and in connection with which
the Borrower or the applicable Subsidiary shall have replaced such
assets within six (6) months, in the case of a sale of equipment, or
commenced such replacement within twelve (12) months after such Asset
Sale and shall have completed such reinvestment within twenty-four
(24) months after such Asset Sale, in the case of sale of real
property, shall not be subject to the provisions of the first sentence
of this SECTION 2.4(B)(I)(A) unless and to the extent that such
applicable period shall have expired without such replacement having
been made; PROVIDED, that upon the occurrence of any Default, such
portion of such Net Cash Proceeds as has not been invested in
replacement assets shall be paid to the Administrative Agent to be
applied as a mandatory prepayment of the Obligations in an amount
equal to 100% of such Net Cash Proceeds or such proceeds converted
from non-cash to cash or Cash Equivalents.
For purposes of this Section, "Excluded Transaction" shall mean:
(1) any sale of Capital Stock of the Borrower as part of
the consideration for a Permitted Acquisition;
(2) sales of Capital Stock of the Borrower to customers of
the Borrower; PROVIDED, HOWEVER, that such transactions shall
constitute Excluded Transactions only to the extent that the
aggregate Net Cash Proceeds received from such transactions
during the 12-month period ending with the month in which such
transaction occurs does not exceed the amount paid during such
period in connection with redemptions of the Borrower's Capital
Stock from customers of the Borrower and its Subsidiaries during
the 12-month period by more than $2,000,000 (any net amount in
excess thereof being subject to the provisions of the first
sentence of this SECTION 2.4(B)(I)(A));
(3) sales of Capital Stock to employees of the Borrower in
the ordinary course of business and consistent with past practice
under the Borrower's stock purchase, bonus and option plans;
(4) Asset Sales permitted pursuant to SECTION 7.3(B)(I) and
(II);
(5) Financings consisting of the issuance of Permitted
Refinancing Indebtedness for the Borrower's variable rate notes
outstanding as of the Closing Date; and
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<PAGE>
(6) Asset Sales where the proceeds are invested in
replacement assets as provided in the second sentence of this
SECTION 2.4(B)(I)(A).
(b) Simultaneously with the delivery of the annual audited
financial statements required to be delivered pursuant to SECTION
7.1(A)(III) for each fiscal year beginning with the fiscal year ending
on or about March 31, 2000, the Borrower shall calculate Excess Cash
Flow for such fiscal year and shall make a mandatory prepayment,
payable not later than the earlier of ten (10) days after such
financial statements and calculation are delivered or one hundred
(100) days after the end of such fiscal year, in an amount equal to
seventy-five percent (75%) of such Excess Cash Flow; PROVIDED, such
percentage shall be reduced to fifty percent (50%) of such Excess Cash
Flow from and after the date on which the Borrower's Leverage Ratio
for four consecutive fiscal quarters was less than or equal to 2.50 to
1.00.
(c) Nothing in this SECTION 2.4(B)(I) shall be construed to
constitute the Lenders' consent to any transaction referred to in
CLAUSE (A) above which is not expressly permitted by the terms of this
Agreement.
(d) Each mandatory prepayment required by CLAUSES (A) and (B) of
this SECTION 2.4(B) shall be referred to herein as a "Designated
Prepayment." Designated Prepayments shall be allocated and applied to
the Obligations as follows:
(I) the amount of each Designated Prepayment shall be
applied pro rata between the Tranche A Term Loans, the
Tranche B Term Loans, and, after the Term Loan Conversion
Date, the Acquisition Facility Loans, and, in each case,
applied on a ratable basis to each of the remaining
installments based upon the respective amounts of such
installments; and
(II) following the payment in full of the Term Loans,
the amount of each Designated Prepayment shall be applied to
repay Revolving Loans (but shall reduce Revolving Loan
Commitments only at the option of Lenders with Revolving
Loan Pro Rata Shares equal to or greater than sixty-six and
two-thirds percent (66-2/3%)) and following the payment in
full of the Revolving Loans, the amount of each Designated
Prepayment shall be applied first to interest on the
Reimbursement Obligations, then to principal on the
Reimbursement Obligations, then to fees on account of
Letters of Credit and then, to the extent any L/C
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<PAGE>
Obligations are contingent, deposited with the Collateral
Agent as cash collateral in respect of such L/C Obligations.
(e) Any Tranche B Term Loan Lender may decline any Designated
Prepayment attributable to an Asset Sale or to Excess Cash Flow, in
which case the amount declined will be applied pro rata to each of the
then remaining installments of the Tranche A Term Loans and, after the
Term Loan Conversion Date, to the Acquisition Facility Loans, and, in
each case, applied on a ratable basis to each of the remaining
installments based upon the respective amounts of such installments.
(f) On the date any Designated Prepayment is received by the
Administrative Agent, such prepayment shall be applied first to
Floating Rate Loans and to any Eurodollar Rate Loans maturing on such
date and then to subsequently maturing Eurodollar Rate Loans in order
of maturity.
(ii) MANDATORY PREPAYMENTS OF REVOLVING LOANS. In addition to
repayments under SECTION 2.4(B)(I)(D)(II), if at any time and for any
reason the Revolving Credit Obligations are greater than the Aggregate
Revolving Loan Commitment, the Borrower shall immediately make a mandatory
prepayment of the Obligations in an amount equal to such excess. In
addition, if Revolving Credit Availability is at any time less than the
amount of contingent L/C Obligations outstanding at any time, the Borrower
shall deposit cash collateral with the Collateral Agent in an amount equal
to the amount by which such L/C Obligations exceed such Revolving Credit
Availability.
(iii) Subject to the preceding provisions of this SECTION 2.4(B), all
of the mandatory prepayments made under this SECTION 2.4(B) shall be
applied first to Floating Rate Loans and to any Eurodollar Rate Loans
maturing on such date and then to subsequently maturing Eurodollar Rate
Loans in order of maturity; PROVIDED, the Borrower shall be required to pay
all amounts payable under SECTION 4.4 in connection with the prepayment of
any such Eurodollar Rate Loans.
2.5 REDUCTION OF COMMITMENTS. The Borrower may permanently reduce
the Aggregate Revolving Loan Commitment or the Aggregate Acquisition
Facility Commitment in whole, or in part ratably among the Lenders, in an
aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess of that amount (unless the Aggregate Revolving Loan Commitment is
reduced in whole), upon at least one Business Day's written notice to the
Agents, which notice shall specify the amount of any such reduction;
PROVIDED, HOWEVER, that the amount of the Aggregate Revolving Loan
Commitment may not be reduced below the aggregate principal amount of the
outstanding Revolving Credit Obligations. All accrued commitment fees
shall be payable on the effective date of any termination of the
obligations of the Lenders to make Loans hereunder.
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<PAGE>
2.6 METHOD OF BORROWING; RATE OPTIONS FOR ALL ADVANCES. Not later
than 2:00 p.m. (Farmington Hills, Michigan time) on each Borrowing Date,
each Lender shall make available its Revolving Loan or Acquisition Facility
Loan, in funds immediately available in Farmington Hills, Michigan to the
Administrative Agent at its address specified pursuant to ARTICLE XIV. The
Administrative Agent will promptly make the funds so received from the
Lenders available to the Borrower at the Administrative Agent's aforesaid
address. Revolving Loans, Acquisition Facility Loans, and Term Loans may
be Floating Rate Advances or Eurodollar Rate Advances, or a combination
thereof, selected by the Borrower in accordance with SECTION 2.9. The
Swing Line Loans shall at all times be Floating Rate Loans. The Borrower
may select, in accordance with SECTION 2.9, Rate Options and Interest
Periods applicable to portions of the Revolving Loans, Acquisition Facility
Loans, and the Term Loans; PROVIDED that there shall be no more than six
(6) Interest Periods in effect with respect to all of the Loans at any
time. Notwithstanding anything herein to the contrary, the Borrower may
not select the Eurodollar Rate for any Loans without the consent of the
Syndication Agent during the period from the Closing Date through the
earlier to occur of (i) the date that is ninety (90) days after the Closing
Date and (ii) the date on which the Syndication Agent notifies the Borrower
and the Administrative Agent that the primary syndication of the Loans and
Commitments has been completed (the "SYNDICATION PERIOD"); PROVIDED,
HOWEVER, the Syndication Agent and the Borrower shall work together to
establish alternative interest periods for Loans bearing interest at a
fixed rate of interest to be made available to the Borrower during the
Syndication Period which may be shorter than thirty (30) days and may be
established so that, at some time or times during the Syndication Period
they expire at the same time.
2.7 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR ADVANCES. The
Borrower shall select the Type of Advance and, in the case of each
Eurodollar Rate Advance, the Interest Period applicable to each Advance
from time to time. The Borrower shall give the Agents irrevocable notice
in substantially the form of EXHIBIT C hereto (a "BORROWING NOTICE") not
later than 11:30 a.m. (Farmington Hills, Michigan time) (a) on the
Borrowing Date of each Floating Rate Advance and (b) three Business Days
before the Borrowing Date for each Eurodollar Rate Advance, specifying:
(i) the Borrowing Date (which shall be a Business Day) of such Advance;
(ii) the aggregate amount of such Advance; (iii) the Type of Advance
selected; and (iv) in the case of each Eurodollar Rate Advance, the
Interest Period applicable thereto. The Borrower shall select Interest
Periods so that, to the best of the Borrower's knowledge, it will not be
necessary to prepay all or any portion of any Eurodollar Rate Advance prior
to the last day of the applicable Interest Period in order to make
mandatory prepayments as required pursuant to the terms hereof. Each
Floating Rate Advance and all Obligations other than Loans shall bear
interest from and including the date of the making of such Advance to (but
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not including) the date of repayment thereof at the Floating Rate, changing
when and as such Floating Rate changes. Changes in the rate of interest on
that portion of any Advance maintained as a Floating Rate Loan will take
effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Rate Advance shall bear interest from and including the first
day of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the interest rate determined as
applicable to such Eurodollar Rate Advance.
2.8 MINIMUM AMOUNT OF EACH ADVANCE. Each Advance (other than an
Advance to repay a Swing Line Loan or a Reimbursement Obligation) shall be
in the minimum amount of $5,000,000 (and in multiples of $1,000,000 if in
excess thereof), PROVIDED, HOWEVER, that any Floating Rate Advance may be
in the amount of the unused Aggregate Revolving Loan Commitment or the
unused Aggregate Acquisition Facility Commitment.
2.9 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR CONVERSION AND
CONTINUATION OF ADVANCES.
(A) RIGHT TO CONVERT. The Borrower may elect from time to time,
subject to the provisions of SECTION 2.6 and this SECTION 2.9, to convert
all or any part of a Loan of any Type (other than Swing Line Loans) into
any other Type or Types of Loans; PROVIDED that any conversion of any
Eurodollar Rate Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto.
(B) AUTOMATIC CONVERSION AND CONTINUATION. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans
are converted into Eurodollar Rate Loans. Eurodollar Rate Loans shall
continue as Eurodollar Rate Loans until the end of the then applicable
Interest Period therefor, at which time such Eurodollar Rate Loans shall be
automatically converted into Floating Rate Loans unless the Borrower shall
have given the Administrative Agent notice in accordance with SECTION
2.9(D) requesting that, at the end of such Interest Period, such Eurodollar
Rate Loans continue as a Eurodollar Rate Loan.
(C) NO CONVERSION POST-DEFAULT OR POST-UNMATURED DEFAULT.
Notwithstanding anything to the contrary contained in SECTION 2.9(A) or
SECTION 2.9(B), no Loan may be converted into or continued as a Eurodollar
Rate Loan (except with the consent of the Required Lenders) when any
Default or Unmatured Default has occurred and is continuing.
(D) CONVERSION/CONTINUATION NOTICE. The Borrower shall give the
Agents irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each
conversion of a Floating Rate Loan into a Eurodollar Rate Loan or
continuation of a Eurodollar Rate Loan not later than 11:30 a.m.
(Farmington Hills, Michigan time) three Business Days prior to the date of
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the requested conversion or continuation, specifying: (1) the requested
date (which shall be a Business Day) of such conversion or continuation;
(2) the amount and Type of the Loan to be converted or continued; and (3)
the amount of Eurodollar Rate Loan(s) into which such Loan is to be
converted or continued and the duration of the Interest Period applicable
thereto.
2.10 DEFAULT RATE. After the occurrence and during the continuance
of a Default, at the option of the Syndication Agent or at the direction of
the Required Lenders, the interest rate(s) applicable to the Obligations
and the fees payable under SECTION 3.7 with respect to Letters of Credit
shall be increased by two percent (2.0%) per annum above the Floating Rate
or Eurodollar Rate, as applicable.
2.11 METHOD OF PAYMENT. All payments of principal, interest, and
fees hereunder shall be made, without setoff, deduction or counterclaim, in
immediately available funds to the Administrative Agent at the
Administrative Agent's address specified pursuant to ARTICLE XIV, or at any
other Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Borrower, by 1:00 p.m. (Farmington
Hills, Michigan time) on the date when due and shall be made ratably among
the Lenders (unless such amount is not to be shared ratably in accordance
with the terms hereof). Each payment delivered to the Administrative Agent
for the account of any Lender shall be delivered promptly by the
Administrative Agent to such Lender in the same type of funds which the
Administrative Agent received at its address specified pursuant to ARTICLE
XIV or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Borrower authorizes the
Administrative Agent to charge the account of the Borrower maintained with
the Administrative Agent for each payment of principal, interest and fees
as it becomes due hereunder.
2.12 NOTES. Each Lender is authorized to record the principal amount
of each of its Loans and each repayment with respect to its Loans on the
schedule attached to its respective Notes; PROVIDED, HOWEVER, that the
failure to so record shall not affect the Borrower's obligations under any
such Note.
2.13 TELEPHONIC NOTICES. The Borrower authorizes the Lenders and the
Agents to extend Advances and Swing Line Loans, issue Letters of Credit,
effect selections of Types of Advances and to transfer funds based on
telephonic notices made by any person or persons the Agents or any Lender
in good faith believes to be acting on behalf of the Borrower. The
Borrower agrees to deliver promptly to the Agents a written confirmation,
signed by an Authorized Agent, if such confirmation is requested by any
Agent or any Lender, of each telephonic notice. If the written
confirmation differs in any material respect from the action taken by the
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Agents and the Lenders, (i) the telephonic notice shall govern absent
manifest error and (ii) the applicable Agent or Lender, as applicable,
shall promptly notify the Authorized Agent who provided such confirmation
of such difference.
2.14 PROMISE TO PAY; INTEREST AND COMMITMENT FEES; INTEREST PAYMENT
DATES; INTEREST AND FEE BASIS; TAXES; LOAN AND CONTROL ACCOUNTS.
(A) PROMISE TO PAY. The Borrower unconditionally promises to pay
when due the principal amount of each Loan and all other Obligations
incurred by it, and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the Notes.
(B) INTEREST PAYMENT DATES. Interest accrued on each Floating Rate
Loan shall be payable on each Payment Date, commencing with the first such
date to occur after the date hereof, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Eurodollar Rate Loan
shall be payable on the last day of its applicable Interest Period, on any
date on which the Eurodollar Rate Loan is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each Eurodollar Rate
Loan having an Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest accrued on the principal balance of all other Obligations
shall be payable in arrears (i) on the last day of each calendar month,
commencing on the first such day following the incurrence of such
Obligation, (ii) upon repayment thereof in full or in part, and (iii) if
not theretofore paid in full, at the time such other Obligation becomes due
and payable (whether by acceleration or otherwise).
(C) COMMITMENT AND OTHER FEES.
(i) REVOLVING LOAN COMMITMENT FEES. The Borrower shall pay to
the Administrative Agent, for the account of the Lenders in accordance
with their Revolving Loan Pro Rata Shares, from and after the Closing
Date until the date on which the Aggregate Revolving Loan Commitment
shall be terminated in whole, a commitment fee as follows:
(a) for each day from and after the date of this agreement
on which the Revolving Credit Obligations (other than the Swing
Line Loans) exceed fifty percent (50%) of the Aggregate Revolving
Loan Commitment, the Borrower agrees to pay to the Administrative
Agent, for the ratable account of the Lenders which have a
Revolving Loan Commitment, a commitment fee, payable quarterly in
arrears and on the Termination Date equal to one-half of one
percent (0.50%) per annum on the amount by which the Aggregate
Revolving Loan Commitment exceeds the Revolving Credit
Obligations (other than the Swing Line Loans) for such day; and
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(b) for each day from and after the date of this agreement
on which the Revolving Credit Obligations (other than the Swing
Line Loans) are equal to or less than fifty percent (50%) of the
Aggregate Revolving Loan Commitment, the Borrower agrees to pay
to the Administrative Agent, for the ratable account of the
Lenders which have a Revolving Loan Commitment, a commitment fee,
payable quarterly in arrears and on the Termination Date equal to
three-quarters of one percent (0.75%) per annum on the amount by
which the Aggregate Revolving Loan Commitment exceeds the
Revolving Credit Obligations (other than the Swing Line Loans)
for such day.
(ii) ACQUISITION FACILITY LOAN COMMITMENT FEES. The Borrower
shall pay to the Administrative Agent, for the account of the Lenders
in accordance with their Acquisition Loan Pro Rata Shares, from and
after the Closing Date until the Term Loan Conversion Date, a
commitment fee as follows:
(a) for each day from and after the date of this agreement
on which the Acquisition Facility Loans exceed fifty percent
(50%) of the Aggregate Acquisition Facility Commitment, the
Borrower agrees to pay to the Agent, for the ratable account of
the Lenders which have an Acquisition Facility Commitment, a
commitment fee, payable quarterly in arrears and on the Term Loan
Conversion Date, equal to one-half of one percent (0.50%) per
annum on the amount by which the Aggregate Acquisition Facility
Commitment exceeds the Acquisition Facility Loans for such day;
(b) for each day from and after the date of this agreement
on which the Acquisition Facility Loans are less than or equal to
fifty percent (50%) of the Aggregate Acquisition Facility
Commitment, the Borrower agrees to pay to the Agent, for the
ratable account of the Lenders which have an Acquisition Facility
Commitment, a commitment fee, payable quarterly in arrears and on
the Term Loan Conversion Date, equal to three quarters of one
percent (0.75%) per annum on the amount by which the Aggregate
Acquisition Facility Commitment exceeds the Acquisition Facility
Loans for such day;
PROVIDED, HOWEVER, in the event that no Acquisition Facility
Loans have been borrowed on or prior to September 14, 1999, the
foregoing fees under CLAUSES (II)(A) and (II)(B) shall each be
increased permanently, commencing September 14, 1999, by one-
quarter of one percent (0.25%) per annum.
(iii) PAYMENT DATES FOR FEES. The Administrative Agent shall
calculate and invoice the Borrower for the fees payable pursuant to
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clauses (i) and (ii) above not later than the date that is ten (10)
Business Days following the end of each calendar quarter and the
Borrower shall pay such fees not later than five (5) Business Days
following the receipt of such invoice.
(iv) AGENTS AND ARRANGERS FEES. The Borrower agrees to pay to
the Syndication Agent for the sole account of the Agents and Arrangers
the fees set forth in the letter agreement between the Syndication
Agent and the Borrower dated as of February 8, 1999, payable at the
times and in the amounts set forth therein, to be allocated among the
Agents and Arrangers in their determination.
(D) INTEREST AND FEE BASIS; APPLICABLE FLOATING RATE MARGINS AND
APPLICABLE EURODOLLAR MARGINS.
(i) Interest on all Obligations and all fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be
payable for the day an Obligation is incurred but not for the day of any
payment on the amount paid if payment is received prior to 1:00 p.m.
(Farmington Hills, Michigan time) at the place of payment. If any payment
of principal of or interest on a Loan or any payment of any other
Obligations shall become due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in
computing interest in connection with such payment.
(ii) The Applicable Floating Rate Margin for the Tranche B Term Loans
shall at all times be two percent (2.00%) per annum and the Applicable
Eurodollar Rate Margin for the Tranche B Term Loans shall at all times be
three and one-quarter percent (3.25%) per annum. For the period from the
Closing Date until the first delivery by the Borrower of the financial
statements required to be delivered pursuant to SECTION 7.1(A)(II) or (III)
which are delivered after September 18, 1999, the Applicable Floating Rate
Margins and Applicable Eurodollar Margins for the Tranche A Term Loans, the
Revolving Loans and the Acquisition Facility Loans shall be determined from
time to time by reference to the table set forth immediately below:
<TABLE>
<CAPTION>
TRANCHE A TERM LOANS AND REVOLVING ACQUISITION FACILITY LOANS
LOANS
- -----------------------------------------------------------------------------
APPLICABLE APPLICABLE BASE APPLICABLE APPLICABLE
EURODOLLAR RATE RATE MARGIN EURODOLLAR RATE BASE RATE MARGIN
MARGIN MARGIN
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
2.50% 1.25% 3.00% 1.75%
</TABLE>
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From and after the first delivery by the Borrower of the financial
statements required to be delivered pursuant to SECTION 7.1(A)(II) or (III)
which are delivered after September 18, 1999, the Applicable Floating Rate
Margins and Applicable Eurodollar Margins for the Trance A Term Loans, the
Revolving Loans and the Acquisition Facility Loans shall be determined from
time to time by reference to the table set forth below, on the basis of the
then applicable Leverage Ratio as described in this SECTION 2.14(D)(II):
<TABLE>
<CAPTION>
LEVERAGE RATIO TRANCHE A TERM LOANS AND ACQUISITION FACILITY LOANS
(TOTAL DEBT/ REVOLVING LOANS
(EBITDA)
- -----------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE APPLICABLE
EURODOLLAR RATE BASE RATE EURODOLLAR BASE RATE
MARGIN MARGIN RATE MARGIN MARGIN
- -----------------------------------------------------------------------------
<S><C> <C> <C> <C> <C>
Greater than 3.00
to 1.00 2.50% 1.25% 3.00% 1.75%
Less than or equal
to 3.00 to 1.00 but
greater than 2.00
to 1.00 2.00% 0.75% 2.50% 1.25%
Less than or equal
to 2.00 to 1.00 1.50% 0.25% 2.00% 0.75%
</TABLE>
For purposes of this SECTION 2.14(D)(II), the Leverage Ratio shall be
determined as of the last day of each fiscal quarter and on the date of
consummation of any Permitted Acquisition based upon (a) for Total Debt,
Total Debt as of the last day of each such fiscal quarter or date of
consummation of such Acquisition (taking into account all debt incurred or
assumed in connection therewith); and (b) for EBITDA, the actual amount for
the four-quarter period ending on such day (or in the case of a calculation
on the date of an Acquisition, for the 12-month period preceding such
Acquisition for which financial information of the target entity is
available), calculated, with respect to Permitted Acquisitions, on a PRO
FORMA basis using historical financial statements obtained from the seller,
broken down by fiscal quarter in the Borrower's reasonable judgment (the
amounts from which shall be unadjusted unless adjustments thereto shall
have been approved in writing by the Agents). Upon receipt of the
financial statements delivered pursuant to SECTIONS 7.1(A)(II) and (III)
and on the closing date of any Permitted Acquisition, as applicable, the
Applicable Floating Rate Margins and Applicable Eurodollar Margins shall be
adjusted, such adjustment being effective five (5) Business Days following
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the Agents' receipt of such financial statements and the compliance
certificate required to be delivered in connection therewith pursuant to
SECTION 7.1(A)(IV); PROVIDED, that if the Borrower shall not have timely
delivered its financial statements in accordance with SECTION 7.1(A)(II) or
(III), as applicable, then commencing on the date upon which such financial
statements should have been delivered and continuing until such financial
statements are actually delivered, it shall be assumed for purposes of
determining the Applicable Floating Rate Margins and Applicable Eurodollar
Margins that the Leverage Ratio was greater than 3.00 to 1.00.
(E) TAXES.
(i) Any and all payments by the Borrower hereunder shall be made
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any liabilities with respect thereto including those arising after the
date hereof as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any political subdivision of or taxing authority therein
or any change in the interpretation or application thereof by a
Governmental Authority but excluding, in the case of each Lender and
the Agents, such taxes (including income taxes, franchise taxes and
branch profit taxes) as are imposed on or measured by such Lender's or
Agent's, as the case may be, net income by the United States of
America or any Governmental Authority of the jurisdiction under the
laws of which such Lender or Agent, as the case may be, is organized
or maintains a Lending Installation (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings, and liabilities
which an Agent or a Lender determines to be applicable to this
Agreement, the other Loan Documents, the Commitments, the Loans or the
Letters of Credit being hereinafter referred to as "TAXES"). For
purposes of the preceding sentence, the Michigan Business Tax shall
not be treated as a tax imposed on or measured by net income for
Lenders which, but for the transactions evidenced by this Credit
Agreement and the other Loan Documents, would not be liable for
payment of Michigan Single Business Tax.. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under the other Loan Documents to any Lender or
any Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this SECTION 2.14(E)) such
Lender or such Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law. If a withholding
tax of the United States of America or any other Governmental
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Authority shall be or become applicable (y) after the date of this
Agreement, to such payments by the Borrower made to the Lending
Installation or any other office that a Lender may claim as its
Lending Installation, or (z) after such Lender's selection and
designation of any other Lending Installation, to such payments made
to such other Lending Installation, such Lender shall use reasonable
efforts to make, fund and maintain its Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce
the Borrower's liability hereunder, if the making, funding or
maintenance of such Loans through such other Lending Installation of
such Lender does not, in the judgment of such Lender, otherwise
adversely affect such Loans, or obligations under the Commitments or
such Lender. Without limiting the obligations of the Borrower under
this SECTION 2.14(E), any Lender which receives notice from any
Governmental Authority that amounts hereunder may be subject to the
provisions of the Michigan Single Business Tax agrees to use
reasonable efforts promptly to provide a copy of any such notice to
the Borrower and the Agent; PROVIDED, that the failure to provide such
notice shall not result in any liability on the part of such Lender.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Commitments, the
Loans or the Letters of Credit (hereinafter referred to as "OTHER
TAXES").
(iii) The Borrower indemnifies each Lender and the Agents for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this SECTION 2.14(E)) paid by such
Lender or Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted; PROVIDED, HOWEVER, that the Borrower's
indemnification of each Lender or Agent for Michigan Single Business
Tax shall be reduced by the tax savings, if any, that such Lender or
Agent realizes in the event the state or states in which such Lender
or Agent is organized or maintains a Lending Installation permit the
Lender or Agent to source interest income received from the Borrower
to Michigan for purposes of apportioning or allocating the Lender's or
Agent's income. This indemnification shall be made within thirty (30)
days after the date such Lender or Agent (as the case may be) makes
written demand therefor. A certificate as to any additional amount
payable to any Lender or Agent under this SECTION 2.14(E) submitted to
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the Borrower and the Agents (if a Lender or other Agent is so
submitting) by such Lender or Agent shall show in reasonable detail
the amount payable and the calculations used to determine such amount
and shall, absent manifest error, be final, conclusive and binding
upon all parties hereto. With respect to such deduction or
withholding for or on account of any Taxes and to confirm that all
such Taxes have been paid to the appropriate Governmental Authorities,
the Borrower shall promptly (and in any event not later than thirty
(30) days after receipt) furnish to each Lender and the Agents such
certificates, receipts and other documents as may be required (in the
judgment of such Lender or any Agent) to establish any tax credit to
which such Lender or Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by the Borrower, the Borrower shall furnish to
the Agents the original or a certified copy of a receipt evidencing
payment thereof.
(v) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this SECTION 2.14(E) shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of
Credit and the termination of this Agreement.
(vi) Without limiting the obligations of the Borrower under this
SECTION 2.14(E), each Lender that is not created or organized under
the laws of the United States of America or a political subdivision
thereof shall deliver to the Borrower and the Syndication Agent on or
before the Closing Date, or, if later, the date on which such Lender
becomes a Lender pursuant to SECTION 13.3, a true and accurate
certificate executed in duplicate by a duly authorized officer of such
Lender, in a form satisfactory to the Borrower and the Syndication
Agent, to the effect that such Lender is capable under the provisions
of an applicable tax treaty concluded by the United States of America
(in which case the certificate shall be accompanied by two executed
copies of Form 1001 of the IRS) or under Section 1442 of the Code (in
which case the certificate shall be accompanied by two copies of
Form 4224 of the IRS) or, if such Lender is not a "bank" within the
meaning of SECTION 881(C)(3)(A) of the Code, two completed and signed
copies of IRS Form W-8 or W-9 or successor applicable form, of
receiving payments of interest hereunder without deduction or
withholding of United States federal income tax. Each such Lender
further agrees to deliver to the Borrower and the Syndication Agent
from time to time a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender substantially in
a form satisfactory to the Borrower and the Syndication Agent, before
or promptly upon the occurrence of any event requiring a change in the
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most recent certificate previously delivered by it to the Borrower and
the Syndication Agent pursuant to this SECTION 2.14(E)(VI). Further,
each Lender which delivers a certificate accompanied by Form 1001 of
the IRS covenants and agrees to deliver to the Borrower and the
Syndication Agent within fifteen (15) days prior to January 1, 2000,
and every third (3rd) anniversary of such date thereafter on which
this Agreement is still in effect, another such certificate and two
accurate and complete original signed copies of Form 1001 (or any
successor form or forms required under the Code or the applicable
regulations promulgated thereunder), and each Lender that delivers a
Form W-8 or W-9 as prescribed above or a certificate accompanied by
Form 4224 of the IRS covenants and agrees to deliver to the Borrower
and the Syndication Agent within fifteen (15) days prior to the
beginning of each subsequent taxable year of such Lender during which
this Agreement is still in effect, another such Form W-8 or W-9 or
another certificate and two accurate and complete original signed
copies of IRS Form 4224 (or any successor form or forms required under
the Code or the applicable regulations promulgated thereunder). Each
such certificate shall certify as to one of the following:
(a) that such Lender is capable of receiving payments
of interest hereunder without deduction or withholding of
United States of America federal income tax;
(b) that such Lender is not capable of receiving
payments of interest hereunder without deduction or
withholding of United States of America federal income tax
as specified therein but is capable of recovering the full
amount of any such deduction or withholding from a source
other than the Borrower and will not seek any such recovery
from the Borrower; or
(c) that, as a result of the adoption of or any change
in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in
the interpretation or application thereof by a Governmental
Authority after the date such Lender became a party hereto,
such Lender is not capable of receiving payments of interest
hereunder without deduction or withholding of United States
of America federal income tax as specified therein and that
it is not capable of recovering the full amount of the same
from a source other than the Borrower.
Each Lender shall promptly furnish to the Borrower and the Syndication
Agent such additional documents as may be reasonably required by the
Borrower or the Syndication Agent to establish any exemption from or
reduction of any Taxes or Other Taxes required to be deducted or
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withheld and which may be obtained without undue expense to such
Lender.
(F) LOAN ACCOUNT. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Obligations of the Borrower to such Lender owing to such Lender from time
to time, including the amount of principal and interest payable and paid to
such Lender from time to time hereunder and under the Notes.
(G) CONTROL ACCOUNT. The Register maintained by the Administrative
Agent pursuant to SECTION 13.3(C) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together)
shall be recorded (i) the date and amount of each Advance made hereunder,
the type of Loan comprising such Advance and any Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment Agreement
delivered to and accepted by it and the parties thereto pursuant to SECTION
13.3, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder or under
the Notes, (iv) the amount of any sum received by the Administrative Agent
from the Borrower hereunder and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement,
including, without limitation, all fees, charges, expenses and interest.
(H) ENTRIES BINDING. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest
error, unless the Borrower objects to information contained in the Register
and each Loan Account within thirty (30) days of the Borrower's receipt of
such information; PROVIDED, HOWEVER, that as to the amounts owed by the
Borrower to any Lender, as between the Borrower and such Lender, to the
extent the amount in the Register conflicts with the amounts reflected on
the schedule to such Lender's Notes, in the absence of manifest error, the
Lender's records instead of the Register shall be conclusive and binding.
2.15 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
AGGREGATE REVOLVING LOAN COMMITMENT REDUCTIONS. Promptly after receipt
thereof, the Administrative Agent will notify each Lender of the contents
of each Aggregate Revolving Loan Commitment or Aggregate Acquisition
Facility Commitment reduction notice, Borrowing Notice,
Continuation/Conversion Notice, and repayment notice received by it
hereunder. The Syndication Agent will notify the Administrative Agent and
each Lender of the interest rate applicable to each Eurodollar Rate Loan
promptly upon determination of such interest rate and will give the
Administrative Agent and each Lender prompt notice of each change in the
Alternate Base Rate.
2.16 LENDING INSTALLATIONS. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
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Installation from time to time. All terms of this Agreement shall apply to
any such Lending Installation and the Notes shall be deemed held by each
Lender for the benefit of such Lending Installation. Each Lender may, by
written or facsimile notice to the Agents and the Borrower, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.17 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan
or (ii) in the case of the Borrower, a payment of principal, interest or
fees to the Administrative Agent for the account of the Lenders, that it
does not intend to make such payment, the Administrative Agent may assume
that such payment has been made. The Administrative Agent may, but shall
not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the
Administrative Agent, the recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day or (ii) in the case of
payment by the Borrower, the interest rate applicable to the relevant Loan.
2.18 TERMINATION DATE. This Agreement shall be effective until the
Tranche B Term Loan Termination Date. Notwithstanding the termination of
this Agreement on the Tranche B Term Loan Termination Date, until all of
the Secured Obligations (other than contingent indemnity obligations) shall
have been fully and indefeasibly paid and satisfied, all financing
arrangements among the Borrower and the Lenders shall have been terminated
and all of the Letters of Credit shall have expired, been cancelled or
terminated, all of the rights and remedies under this Agreement and the
other Loan Documents shall survive.
2.19 REPLACEMENT OF CERTAIN LENDERS. In the event a Lender
("AFFECTED LENDER") shall have: (i) failed to fund its Acquisition Loan
Pro Rata Share, Revolving Loan Pro Rata Share, Tranche A Pro Rata Share or
Tranche B Pro Rata Share, as applicable, of any Advance requested by the
Borrower, or to fund a Revolving Loan (including to repay obligations in
respect of Swing Line Loans or L/C Obligations) or Acquisition Facility
Loans, which such Lender is obligated to fund under the terms of this
Agreement and which failure has not been cured, (ii) requested compensation
from the Borrower under SECTIONS 2.14(E), 4.1 or 4.2 to recover Taxes,
Other Taxes or other additional costs incurred by such Lender which are not
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being incurred generally by the other Lenders, (iii) delivered a notice
pursuant to SECTION 4.3 claiming that such Lender is unable to extend
Eurodollar Rate Loans to the Borrower for reasons not generally applicable
to the other Lenders or (iv) has invoked SECTION 10.2, then, in any such
case, the Borrower or any Agent may make written demand on such Affected
Lender (with a copy to the Agents in the case of a demand by the Borrower
and a copy to the Borrower and the other Agent in the case of a demand by
an Agent) for the Affected Lender to assign, and such Affected Lender shall
use its best efforts to assign pursuant to one or more duly executed
Assignments Agreements five (5) Business Days after the date of such
demand, to one or more financial institutions that comply with the
provisions of SECTION 13.3(A) which the Borrower or any Agent, as the case
may be, shall have engaged for such purpose ("REPLACEMENT LENDER"), all of
such Affected Lender's rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, its Revolving Loan
Commitment, Acquisition Facility Commitment, all Loans owing to it, all of
its participation interests in existing Letters of Credit and Swing Line
Loans, and its obligation to participate in additional Letters of Credit
and Swing Line Loans hereunder) in accordance with SECTION 13.3. The
Syndication Agent agrees, upon the occurrence of such events with respect
to an Affected Lender and upon the written request of the Borrower, to use
reasonable efforts to obtain the commitments from one or more financial
institutions to act as a Replacement Lender. The Syndication Agent is
authorized to execute one or more of such assignment agreements as
attorney-in-fact for any Affected Lender failing to execute and deliver the
same within five (5) Business Days after the date of such demand. Further,
with respect to such assignment the Affected Lender shall have concurrently
received, in cash, all amounts due and owing to the Affected Lender
hereunder or under any other Loan Document, including, without limitation,
the aggregate outstanding principal amount of the Loans owed to such
Lender, together with accrued interest thereon through the date of such
assignment, amounts payable under SECTIONS 2.14(E), 4.1, and 4.2 with
respect to such Affected Lender and compensation payable under SECTION
2.14(C) in the event of any replacement of any Affected Lender under CLAUSE
(II) or CLAUSE (III) of this SECTION 2.19; PROVIDED that upon such Affected
Lender's replacement, such Affected Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of SECTIONS 2.14(E), 4.1,
4.2, 4.4, and 10.7, as well as to any fees accrued for its account
hereunder and not yet paid, and shall continue to be obligated under
SECTION 11.8. Upon the replacement of any Affected Lender pursuant to this
SECTION 2.19, the provisions of SECTION 9.2 shall continue to apply with
respect to borrowings which are then outstanding with respect to which the
Affected Lender failed to fund its applicable pro rata share and which
failure has not been cured.
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2.20 COLLECTION ACCOUNT ARRANGEMENTS.
(a) ESTABLISHMENT OF COLLECTION ACCOUNTS. On or prior to the date
hereof, the Borrower has and has caused each of its Subsidiaries to enter
into and the Borrower shall and shall cause each of its Subsidiaries
thereafter to maintain cash collection account arrangements and/or similar
arrangements for the concentration of their collection of Receivables
included in the Collateral and other proceeds of Collateral into one or
more Collection Accounts, in form and substance reasonably acceptable to
the Collateral Agent, and in connection with such arrangements, the
Borrower shall have entered into and shall thereafter maintain and shall
cause its Subsidiaries to enter into and thereafter maintain in effect
Collection Account Agreements for each of such Collection Accounts.
Notwithstanding the foregoing, the Borrower and its Subsidiaries shall be
permitted to maintain deposit accounts for the collection of Receivables
which consist of minimum balance accounts subject to established
arrangements pursuant to which the amounts on deposit in such accounts
(other than a minimum balance of up to $5,000 per account which is
permitted to remain therein) are automatically transferred (on a periodic
basis acceptable to the Collateral Agent) to concentration accounts which
are Collection Accounts and subject to a Collection Account Agreement (the
"PERMITTED SWEEP ACCOUNTS"). On or prior to the date hereof, the Borrower
has and has caused its Subsidiaries to put in place arrangements so that
their account debtors directly remit all payments on accounts receivable to
the Collection Accounts or Permitted Sweep Accounts. Any collections
received by the Borrower or any Subsidiary and not deposited in the
Collection Accounts or Permitted Sweep Accounts, shall be deemed to have
been received by the Borrower or such Subsidiary as the Collateral Agent's
trustee and, upon the receipt thereof, the Borrower or shall transfer or
cause the Subsidiary, as applicable, to transfer promptly all such amounts
into a Collection Account or Permitted Sweep Account in their original
form. All deposits in any Collection Account shall be remitted to the
Borrower, its Subsidiaries, the Collateral Agent or as the Collateral Agent
may direct, all in accordance with the provisions of the Collection Account
Agreements.
(b) COLLECTION ACCOUNT BLOCKAGE. Following any Collection Account
Blockage Date and during the continuance of the Default giving rise
thereto, (i) all payments received by any Agent, all collection of accounts
receivable received by the Collateral Agent and all proceeds of other
Collateral received by the Collateral Agent, whether through payment or
otherwise, will be the sole property of the Collateral Agent for the
benefit of the Holders of Secured Obligations and will be deemed to be
received by the Collateral Agent for application to the Secured
Obligations.
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ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 OBLIGATION TO ISSUE; TRANSITIONAL ISSUES. Subject to the terms
and conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrower herein set forth, each Issuing
Bank hereby agrees to issue for the account of the Borrower through such
Issuing Bank's branches as it and the Borrower may jointly agree, one or
more Letters of Credit denominated in Dollars in accordance with this
ARTICLE III, from time to time during the period, commencing on the date
hereof and ending on the Business Day prior to the Termination Date.
SCHEDULE 3.1 contains a schedule of certain letters of credit issued for
the account of the Borrower prior to the Closing Date. Subject to the
satisfaction of the conditions contained in SECTIONS 5.1 and 5.2, from and
after the Closing Date such letters of credit shall be deemed to be Letters
of Credit issued pursuant to this ARTICLE III.
3.2 TYPES AND AMOUNTS. No Issuing Bank shall have any obligation to
and no Issuing Bank shall:
(i) issue any Letter of Credit if on the date of issuance,
before or after giving effect to the Letter of Credit requested
hereunder, (a) the Revolving Credit Obligations at such time
would exceed the Aggregate Revolving Loan Commitment at such
time, or (b) the aggregate outstanding amount of the L/C
Obligations would exceed $25,000,000; or
(ii) issue any Letter of Credit which has an expiration
date later than the date which is the earlier of one (1) year
after the date of issuance thereof or five (5) Business Days
immediately preceding the Termination Date.
3.3 CONDITIONS. In addition to being subject to the satisfaction of
the conditions contained in SECTIONS 5.1 and 5.2, the obligation of an
Issuing Bank to issue any Letter of Credit is subject to the satisfaction
in full of the following conditions:
(i) the Borrower shall have delivered to the applicable
Issuing Bank, with a copy to the Administrative Agent, at such
times and in such manner as such Issuing Bank may reasonably
prescribe, a request for issuance of such Letter of Credit in
substantially the form of EXHIBIT D hereto, duly executed
applications for such Letter of Credit, and such other documents,
instructions and agreements as may be required pursuant to the
terms thereof, and the proposed Letter of Credit shall be
reasonably satisfactory to such Issuing Bank as to form and
content; and
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(ii) as of the date of issuance no order, judgment or
decree of any court, arbitrator or Governmental Authority shall
purport by its terms to enjoin or restrain the applicable Issuing
Bank from issuing such Letter of Credit and no law, rule or
regulation applicable to such Issuing Bank and no request or
directive (whether or not having the force of law) from a
Governmental Authority with jurisdiction over such Issuing Bank
shall prohibit or request that such Issuing Bank refrain from the
issuance of Letters of Credit generally or the issuance of that
Letter of Credit.
3.4 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. (a) Subject to the
terms and conditions of this ARTICLE III and provided that the applicable
conditions set forth in SECTIONS 5.1 and 5.2 hereof have been satisfied,
the applicable Issuing Bank shall, on the requested date, issue a Letter of
Credit on behalf of the Borrower in accordance with such Issuing Bank's
usual and customary business practices and, in this connection, such
Issuing Bank may assume that the applicable conditions set forth in
SECTION 5.2 hereof have been satisfied unless it shall have received notice
to the contrary from an Agent or a Lender or has knowledge that the
applicable conditions have not been met.
(b) The applicable Issuing Bank shall give the Administrative Agent
written, facsimile or telex notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of a Letter of Credit, PROVIDED,
HOWEVER, that the failure to provide such notice shall not result in any
liability on the part of such Issuing Bank.
(c) No Issuing Bank shall extend or amend any Letter of Credit unless
the requirements of this SECTION 3.4 are met as though a new Letter of
Credit was being requested and issued.
3.5 LETTER OF CREDIT PARTICIPATION. Unless a Lender shall have
notified the Issuing Bank, prior to its issuance of a Letter of Credit,
that any applicable condition precedent set forth in SECTIONS 5.1 and 5.2
had not then been satisfied, (a) upon the Closing Date with respect to the
Existing Letters of Credit and (b) immediately upon the issuance of each
other Letter of Credit hereunder, each Lender with a Revolving Loan Pro
Rata Share shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Bank an
undivided interest and participation in and to such Letter of Credit, the
obligations of the Borrower in respect thereof, and the liability of such
Issuing Bank thereunder (collectively, an "L/C INTEREST" in an amount equal
to the amount available for drawing under such Letter of Credit multiplied
by such Lender's Revolving Loan Pro Rata Share. Each Issuing Bank will
notify each Lender promptly upon presentation to it of an L/C Draft or upon
any other draw under a Letter of Credit. On or before the Business Day on
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which an Issuing Bank makes payment of each such L/C Draft or, in the case
of any other draw on a Letter of Credit, on demand by the Issuing Bank,
each Lender shall make payment to the Administrative Agent, for the account
of the applicable Issuing Bank, in immediately available funds in an amount
equal to such Lender's Revolving Loan Pro Rata Share of the amount of such
payment or draw. The obligation of each Lender to reimburse the Issuing
Banks under this SECTION 3.5 shall be unconditional, continuing,
irrevocable and absolute. In the event that any Lender fails to make
payment to the Administrative Agent of any amount due under this SECTION
3.5, the Administrative Agent shall be entitled to receive, retain and
apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent receives such
payment from such Lender or such obligation is otherwise fully satisfied;
PROVIDED, HOWEVER, that nothing contained in this sentence shall relieve
such Lender of its obligation to reimburse the applicable Issuing Bank for
such amount in accordance with this SECTION 3.5.
3.6 REIMBURSEMENT OBLIGATION. The Borrower agrees unconditionally,
irrevocably and absolutely to pay immediately to the Administrative Agent,
for the account of the Lenders, the amount of each advance which may be
drawn under or pursuant to a Letter of Credit or an L/C Draft related
thereto (such obligation of the Borrower to reimburse the Administrative
Agent for an advance made under a Letter of Credit or L/C Draft being
hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with respect to
such Letter of Credit or L/C Draft). If the Borrower at any time fails to
repay a Reimbursement Obligation pursuant to this SECTION 3.6, the Borrower
shall be deemed to have elected to borrow Revolving Loans from the Lenders,
as of the date of the advance giving rise to the Reimbursement Obligation,
equal in amount to the amount of the unpaid Reimbursement Obligation. Such
Revolving Loans shall be made as of the date of the payment giving rise to
such Reimbursement Obligation, automatically, without notice and without
any requirement to satisfy the conditions precedent otherwise applicable to
an Advance of Revolving Loans. Such Revolving Loans shall constitute a
Floating Rate Advance, the proceeds of which Advance shall be used to repay
such Reimbursement Obligation. If, for any reason, the Borrower fails to
repay a Reimbursement Obligation on the day such Reimbursement Obligation
arises and, for any reason, the Lenders are unable to make or have no
obligation to make Revolving Loans, then such Reimbursement Obligation
shall bear interest from and after such day, until paid in full, at the
interest rate applicable to a Floating Rate Advance.
3.7 LETTER OF CREDIT FEES. The Borrower agrees to pay (i) quarterly,
in arrears, to the Administrative Agent for the ratable benefit of the
Lenders, except as set forth in SECTION 9.2, a letter of credit fee at a
rate per annum equal to the Applicable Eurodollar Rate Margin for Revolving
Loans (changing as and when such Applicable Eurodollar Rate Margin changes)
on the average daily outstanding face amount available for drawing under
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all Letters of Credit, (ii) quarterly, in arrears, to the Administrative
Agent for the sole account of each Issuing Bank, a letter of credit
fronting fee of one-quarter of one percent (0.25%) per annum on the average
daily outstanding face amount available for drawing under all Letters of
Credit issued by such Issuing Bank, and (iii) to the Administrative Agent
for the benefit of each Issuing Bank, all customary fees and other
issuance, amendment, document examination, negotiation and presentment
expenses and related charges in connection with the issuance, amendment,
presentation of L/C Drafts, and the like customarily charged by such
Issuing Banks with respect to standby Letters of Credit. With respect to
the Existing Letters of Credit, the provisions of this SECTION 3.7 shall
supersede any existing fee agreements with respect to such Existing Letters
of Credit.
3.8 ISSUING BANK REPORTING REQUIREMENTS. In addition to the notices
required by SECTION 3.5(C), each Issuing Bank shall, no later than the
tenth Business Day following the last day of each month, provide to each of
the Agents, and upon any Agent's or any Lender's request, schedules, in
form and substance reasonably satisfactory to the Agents, showing the date
of issue, account party, amount, expiration date and the reference number
of each Letter of Credit issued by it outstanding at any time during such
month and the aggregate amount payable by the Borrower during such month.
In addition, upon the request of any Agent or any Lender, each Issuing Bank
shall furnish to the Agents or such requesting Lender copies of any Letter
of Credit and any application for or reimbursement agreement with respect
to a Letter of Credit to which the Issuing Bank is party and such other
documentation as may reasonably be requested by any Agent. Upon the
request of any Lender, the Administrative Agent will provide to such Lender
information concerning such Letters of Credit.
3.9 INDEMNIFICATION; EXONERATION. (A) In addition to amounts
payable as elsewhere provided in this ARTICLE III, the Borrower hereby
agrees to protect, indemnify, pay and save harmless the Agents, each
Issuing Bank and each Lender from and against any and all liabilities and
costs which such Agent, such Issuing Bank or such Lender may incur or be
subject to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit other than, in the case of the applicable Issuing Bank, as
a result of its Gross Negligence or willful misconduct, as determined by
the final judgment of a court of competent jurisdiction, or (ii) the
failure of the applicable Issuing Bank to honor a drawing under a Letter of
Credit as a result of any act or omission, whether rightful or wrongful, of
any present or future DE JURE or DE FACTO Governmental Authority (all such
acts or omissions herein called "GOVERNMENTAL ACTS").
(B) As among the Borrower, the Lenders, the Agents and the Issuing
Banks, the Borrower assumes all risks of the acts and omissions of, or
misuse of such Letter of Credit by, the beneficiary of any Letters of
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Credit. In furtherance and not in limitation of the foregoing, subject to
the provisions of the Letter of Credit applications and Letter of Credit
reimbursement agreements executed by the Borrower at the time of request
for any Letter of Credit, neither any Agent, any Issuing Bank nor any
Lender shall be responsible (in the absence of Gross Negligence or willful
misconduct in connection therewith, as determined by the final judgment of
a court of competent jurisdiction): (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance
of the Letters of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of a Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex, or other similar form of
teletransmission or otherwise; (v) for errors in interpretation of
technical trade terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit or of the proceeds thereof; (vii) for the misapplication
by the beneficiary of a Letter of Credit of the proceeds of any drawing
under such Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of the Agents, the Issuing Banks and the Lenders,
including, without limitation, any Governmental Acts. None of the above
shall affect, impair, or prevent the vesting of any Issuing Bank's rights
or powers under this SECTION 3.9.
(C) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
any Issuing Bank under or in connection with the Letters of Credit or any
related certificates shall not, in the absence of Gross Negligence or
willful misconduct, as determined by the final judgment of a court of
competent jurisdiction, put the applicable Issuing Bank, any Agent or any
Lender under any resulting liability to the Borrower or relieve the
Borrower of any of its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this SECTION 3.9 shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of Credit
and the termination of this Agreement.
3.10 CASH COLLATERAL. Notwithstanding anything to the contrary
herein or in any application for a Letter of Credit, after the occurrence
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and during the continuance of Default, the Borrower shall, upon the
Collateral Agent's demand, deliver to the Collateral Agent for the benefit
of the Lenders and the Issuing Banks, cash, or other collateral of a type
satisfactory to the Required Lenders, having a value, as determined by such
Lenders, equal to the aggregate outstanding L/C Obligations. Any such
collateral shall be held by the Collateral Agent in a separate interest
bearing account appropriately designated as a cash collateral account in
relation to this Agreement and the Letters of Credit and retained by the
Collateral Agent for the benefit of the Lenders and the Issuing Banks as
collateral security for the Borrower's obligations in respect of this
Agreement and each of the Letters of Credit and L/C Drafts. Such amounts
shall be applied to reimburse the Issuing Banks for drawings or payments
under or pursuant to Letters of Credit or L/C Drafts, or if no such
reimbursement is required, to payment of such of the other Obligations as
the Collateral Agent shall determine. If no Default shall be continuing,
amounts (including interest income) remaining in any cash collateral
account established pursuant to this SECTION 3.10 which are not to be
applied to reimburse an Issuing Bank for amounts actually paid or to be
paid by such Issuing Bank in respect of a Letter of Credit or L/C Draft,
shall be returned to the Borrower (after deduction of the Collateral
Agent's expenses incurred in connection with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 YIELD PROTECTION. 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
such 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 any Lender
therewith,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding federal taxation of the overall net income of
any Lender or applicable Lending Installation), or changes the basis
of taxation of payments to any Lender in respect of its Loans, its L/C
Interests, the Letters of Credit or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
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than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Rate Loans) with respect to its
Loans, L/C Interests or the Letters of Credit, or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining the Loans, the L/C Interests or the
Letters of Credit or reduces any amount received by any Lender or any
applicable Lending Installation in connection with Loans or Letters of
Credit, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Loans or
L/C Interests held or interest received by it or by reference to the
Letters of Credit, by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that
Lender of making, renewing or maintaining its Loans, L/C Interests or
Letters of Credit or to reduce any amount received under this Agreement,
then, within 15 days after receipt by the Borrower of written demand by
such Lender pursuant to SECTION 4.5, the Borrower shall pay such Lender
that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding
and maintaining its Loans, L/C Interests, Letters of Credit and its
Revolving Loan Commitment.
4.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines
(i) the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a "Change" (as defined
below), and (ii) such increase in capital will result in an increase in the
cost to such Lender of maintaining its Loans, L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder, then, within 15 days
after receipt by the Borrower of written demand by such Lender pursuant to
SECTION 4.5, the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans, its L/C Interests, the Letters of Credit or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "CHANGE" means (i) any change after the
date of this Agreement in the "Risk-Based Capital Guidelines" (as defined
below) excluding, for the avoidance of doubt, the effect of any phasing in
of such Risk-Based Capital Guidelines or any other capital requirements
passed prior to the date hereof, or (ii) any adoption of or change in any
other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement and having general applicability to
all banks and financial institutions within the jurisdiction in which such
Lender operates which affects the amount of capital required or expected to
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be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i) the
risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the
United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International
Convergence of Capital Measurements and Capital Standards," including
transition rules, and any amendments to such regulations adopted prior to
the date of this Agreement.
4.3 AVAILABILITY OF TYPES OF ADVANCES. If (i) any Lender determines
that maintenance of its Eurodollar Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or
directive, whether or not having the force of law, or (ii) the Required
Lenders determine that (x) deposits of a type and maturity appropriate to
match fund Eurodollar Rate Advances are not available or (y) the interest
rate applicable to a Type of Advance does not accurately reflect the cost
of making or maintaining such an Advance, then the Administrative Agent
shall suspend the availability of the affected Type of Advance and, in the
case of any occurrence set forth in clause (i) require any Advances of the
affected Type to be repaid.
4.4 FUNDING INDEMNIFICATION. If any payment of a Eurodollar Rate
Advance occurs on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment, conversion or
otherwise, or a Eurodollar Rate Advance is not made on the date specified
by the Borrower for any reason other than default by the Lenders, the
Borrower indemnifies each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the
Eurodollar Rate Advance. In connection with any assignment by any Lender
of any portion of the Loans made pursuant to SECTION 13.3 and made during
the Syndication Period, and if, notwithstanding the provisions of SECTION
2.6, the Borrower has requested and the Syndication Agent has consented to
the use of the Eurodollar Rate (or any other fixed rate), the Borrower
shall be deemed to have repaid all outstanding Eurodollar Rate Advances as
of the effective date of such assignment and reborrowed such amount as a
Floating Rate Advance and/or Eurodollar Rate Advance (chosen in accordance
with the provisions of SECTION 2.6) and the indemnification provisions
under this SECTION 4.4 shall apply.
4.5 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. If reasonably
possible, each Lender shall designate an alternate Lending Installation
with respect to its Eurodollar Rate Loans to reduce any liability of the
Borrower to such Lender under SECTIONS 4.1 and 4.2 or to avoid the
unavailability of a Type of Advance under SECTION 4.3, so long as such
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designation is not disadvantageous to such Lender. Each Lender requiring
compensation pursuant to SECTION 2.14(E) or to this ARTICLE IV shall use
its reasonable efforts to notify the Borrower and the Agents in writing of
any Change, law, policy, rule, guideline or directive giving rise to such
demand for compensation not later than ninety (90) days following the date
upon which the responsible account officer of such Lender knows or should
have known of such Change, law, policy, rule, guideline or directive. Any
demand for compensation pursuant to this ARTICLE IV shall be in writing and
shall state the amount due, if any, under SECTION 4.1, 4.2 or 4.4 and shall
set forth in reasonable detail the calculations upon which such Lender
determined such amount. Such written demand shall be rebuttably presumed
correct for all purposes. Determination of amounts payable under such
Sections in connection with a Eurodollar Rate Loan shall be calculated as
though each Lender funded its Eurodollar Rate Loan through the purchase of
a deposit of the type and maturity corresponding to the deposit used as a
reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. The obligations of the Borrower
under SECTIONS 2.14(E), 4.1, 4.2 and 4.4 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 INITIAL ADVANCES AND LETTERS OF CREDIT. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless
the Borrower has (a) fulfilled, to the satisfaction of the Agents and the
Lenders, each of the conditions contained in the term sheet dated as of
February 5, 1999 and included in the Spartan Stores, Inc. Confidential
Offering Memorandum dated February 1999 (the "BANK BOOK") furnished by the
Borrower to the Agents and the Lenders and (b) furnished to the Agents each
of the following, with sufficient copies for the Lenders, all in form and
substance satisfactory to the Agents, the Arrangers and the Lenders:
(1) Copies of the Articles of Incorporation of the Borrower and
each of its Subsidiaries, together with all amendments and a
certificate of good standing, both certified by the appropriate
governmental officer in its jurisdiction of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary of
the Borrower and each of its Subsidiaries, of its By-Laws and of its
Board of Directors' resolutions (and resolutions of other bodies, if
any are deemed necessary by counsel for any Lender) authorizing the
execution of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower and each of its Subsidiaries,
which shall identify by name and title and bear the signature of the
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officers of the Borrower and each of its Subsidiaries authorized to
sign the Loan Documents and to make borrowings hereunder, upon which
certificate the Agents and the Lenders shall be entitled to rely until
informed of any change in writing by the Borrower;
(4) A certificate, in form and substance satisfactory to the
Agents, signed by the Director of Finance or Vice President of Finance
of the Borrower, stating that on Closing Date no Default or Unmatured
Default has occurred and is continuing;
(5) A written opinion of the Borrower's counsel, addressed to
the Agents and the Lenders, addressing the issues identified in
EXHIBIT F hereto containing assumptions and qualifications acceptable
to the Agents and the Lenders;
(6) Notes payable to the order of each of the applicable
Lenders;
(7) Written information satisfactory to the Agents demonstrating
that the Borrower and its Subsidiaries (i) have (A) made a complete
and full assessment of the Borrower and its Subsidiaries' Year 2000
Issues arising from computers or computer applications used by the
Borrower or its Subsidiaries and (B) made reasonable inquiries of the
material customers, suppliers and vendors of the Borrower and its
Subsidiaries regarding Year 2000 Issues arising from computers or
computer applications used by such customers, suppliers and vendors;
(ii) have a realistic and achievable program for remediating the Year
2000 Issues identified as a result of such assessment and inquiries on
a timely basis; and (iii) do not reasonably anticipate that Year 2000
Issues will have a Material Adverse Effect; and
(8) Such other documents as any Agent, Arranger or Lender or
their respective counsel may have reasonably requested, including,
without limitation all of the documents reflected on the List of
Closing Documents attached as EXHIBIT G to this Agreement (other than
those specifically identified to be delivered following the Closing
Date).
5.2 EACH ADVANCE AND LETTER OF CREDIT. The Lenders shall not be
required to make any Advance or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date
on which the Letter of Credit is to be issued:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in ARTICLE VI
are true and correct as of such Borrowing Date except for changes in
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the Schedules to this Agreement reflecting transactions permitted by
this Agreement.
Each Borrowing Notice with respect to each such Advance and the letter
of credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained
in SECTIONS 5.2(I) and (II) have been satisfied. Any Lender may require a
duly completed officer's certificate in substantially the form of EXHIBIT H
hereto and/or a duly completed compliance certificate in substantially the
form of EXHIBIT I hereto as a condition to making an Advance.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and the other financial accommodations to
the Borrower and to issue the Letters of Credit described herein, the
Borrower represents and warrants as follows to each Lender and each Agent
as of the Closing Date, and thereafter on each date as required by SECTION
5.2:
6.1 ORGANIZATION; CORPORATE POWERS. The Borrower and each of its
Subsidiaries (i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization,
(ii) is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing would reasonably be expected to have a
Material Adverse Effect, and (iii) has all requisite corporate power and
authority to own, operate and encumber its property and to conduct its
business as presently conducted and as proposed to be conducted.
6.2 AUTHORITY.
(A) The Borrower and each of its Subsidiaries has the requisite
corporate power and authority to execute, deliver and perform each of the
Loan Documents.
(B) The execution, delivery and performance of each of the Loan
Documents and the consummation of the transactions contemplated thereby,
including, without limitation, the Specified Acquisitions, have been duly
approved by the respective boards of directors and, if necessary, the
shareholders of the Borrower and its Subsidiaries, and such approvals have
not been rescinded. No other corporate action or proceedings on the part
of the Borrower or its Subsidiaries are necessary to consummate such
transactions.
(C) Each of the Loan Documents to which the Borrower or any of its
Subsidiaries is a party has been duly executed and delivered by it and
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constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally), and no unmatured default, default or breach
of any covenant by any such party exists thereunder.
6.3 NO CONFLICT; GOVERNMENTAL CONSENTS. The execution, delivery and
performance of each of the Loan Documents to which the Borrower or any of
its Subsidiaries is a party do not and will not (i) conflict with the
certificate or articles of incorporation or by-laws of the Borrower or any
such Subsidiary, (ii) constitute a tortious interference with any
Contractual Obligation of any Person or conflict with, result in a breach
of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of the
Borrower or any such Subsidiary, or require termination of any Contractual
Obligation, except such interference, breach, default or termination which,
individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect, (iii) with respect to the Loan Documents,
constitute a tortious interference with any Contractual Obligation of any
Person or conflict with, result in a breach of or constitute (with or
without notice or lapse of time or both) a default under any Requirement of
Law (including, without limitation, any Environmental Property Transfer
Act) or Contractual Obligation of the Borrower or any such Subsidiary, or
require termination of any Contractual Obligation, except such
interference, breach, default or termination which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect, (iv) result in or require the creation or imposition of any Lien
whatsoever upon any of the property or assets of the Borrower or any such
Subsidiary, other than Liens permitted by the Loan Documents, or
(v) require any approval of the Borrower's or any such Subsidiary's
shareholders except such as have been obtained. The execution, delivery
and performance of each of the Transaction Documents to which the Borrower
or any of its Subsidiaries is a party do not and will not require any
registration with, consent or approval of, or notice to, or other action
to, with or by any Governmental Authority, including under any
Environmental Property Transfer Act, except filings, consents or notices
which have been made, obtained or given, or which, if not made, obtained or
given, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect or which could reasonably be likely to
subject the Borrower or any of its Subsidiaries to liability, individually
or in the aggregate, in excess of $7,500,000.
6.4 FINANCIAL STATEMENTS.
(A) The PRO FORMA financial statements of the Borrower and its
Subsidiaries, copies of which are attached hereto as SCHEDULE 6.4 to this
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Agreement, present on a PRO FORMA basis the financial condition of the
Borrower and such Subsidiaries as of such date, and reflect on a PRO FORMA
basis those liabilities reflected in the notes thereto and resulting from
the Specified Acquisitions and the other transactions contemplated by this
Agreement, and the payment or accrual of all transaction costs payable on
the Closing Date with respect to any of the foregoing. The projections and
assumptions expressed in the PRO FORMA financials referenced in this
SECTION 6.4(A) were prepared in good faith and represent management's
opinion based on the information available to the Borrower at the time so
furnished.
(B) Complete and accurate copies of the historical financial
statements of the Borrower and the entities to be acquired in the
Specified Acquisitions as set forth in the Bank Book have been provided to
the Agents.
6.5 NO MATERIAL ADVERSE CHANGE. (A) Since March 31, 1998 up to the
Closing Date, there has occurred no change in the business, properties,
condition (financial or otherwise), results of operations or prospects of
the Borrower, or the Borrower and its Subsidiaries taken as a whole or any
other event which has had or could reasonably be expected to have a
Material Adverse Effect.
(B) Since the Closing Date, there has occurred no change in the
business, properties, condition (financial or otherwise), results of
operations or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole or any other event which has had or could
reasonably be expected to have a Material Adverse Effect.
6.6 TAXES.
(A) TAX EXAMINATIONS. All deficiencies which have been asserted
against the Borrower or any of the Borrower's Subsidiaries as a result of
any federal, state, local or foreign tax examination for each taxable year
in respect of which an examination has been conducted have been fully paid
or finally settled or are being contested in good faith, and as of the
Closing Date no issue has been raised by any taxing authority in any such
examination which, by application of similar principles, reasonably can be
expected to result in assertion by such taxing authority of a material
deficiency for any other year not so examined which has not been reserved
for in the Borrower's consolidated financial statements to the extent, if
any, required by Agreement Accounting Principles. Except as permitted
pursuant to SECTION 7.2(D), neither the Borrower nor any of the Borrower's
Subsidiaries anticipates any material tax liability with respect to the
years which have not been closed pursuant to applicable law.
(B) PAYMENT OF TAXES. All tax returns and reports of the Borrower
and its Subsidiaries required to be filed have been timely filed, and all
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taxes, assessments, fees and other governmental charges thereupon and upon
their respective property, assets, income and franchises which are shown in
such returns or reports to be due and payable have been paid except those
items which are being contested in good faith and have been reserved for in
accordance with Agreement Accounting Principles. The Borrower has no
knowledge of any proposed tax assessment against the Borrower or any of its
Subsidiaries that will have or could reasonably be expected to have a
Material Adverse Effect or which could reasonably be likely to subject the
Borrower or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $7,500,000.
6.7 LITIGATION; LOSS CONTINGENCIES AND VIOLATIONS. Except as set
forth in SCHEDULE 6.7 (the "DISCLOSED LITIGATION"), there is no action,
suit, proceeding, arbitration or (to the Borrower's knowledge after
diligent inquiry) investigation before or by any Governmental Authority or
private arbitrator pending or, to the Borrower's knowledge after diligent
inquiry, threatened against the Borrower or any of its Subsidiaries or any
property of any of them. None of the Disclosed Litigation (i) challenges
the validity or the enforceability of any provision of the Loan Documents
or (ii) will have or could reasonably be expected to have a Material
Adverse Effect or result in liability, individually or in the aggregate, in
excess of $7,500,000. There is no material loss contingency within the
meaning of Agreement Accounting Principles which has not been reflected in
the consolidated financial statements of the Borrower and its Subsidiaries
prepared and delivered pursuant to SECTION 7.1(A) for the fiscal period
during which such material loss contingency was incurred. Neither the
Borrower nor any of its Subsidiaries is (A) in violation of any applicable
Requirements of Law which violation will have or could reasonably be
expected to have a Material Adverse Effect or result in liability,
individually or in the aggregate, in excess of $7,500,000, or (B) subject
to or in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation of any
court or Governmental Authority which will have or could reasonably be
expected to have a Material Adverse Effect.
6.8 SUBSIDIARIES. SCHEDULE 6.8 to this Agreement (i) contains a
description of the corporate structure of the Borrower, its Subsidiaries
and any other Person in which the Borrower or any of its Subsidiaries holds
an Equity Interest (both narratively and in chart form); and
(ii) accurately sets forth (A) the correct legal name, the jurisdiction of
incorporation and the jurisdictions in which each of the Borrower and the
direct and indirect Subsidiaries of the Borrower is qualified to transact
business as a foreign corporation, (B) the authorized, issued and
outstanding shares of each class of Capital Stock of the Borrower and each
of its Subsidiaries and the owners of such shares (both as of the Closing
Date and on a fully-diluted basis), and (C) a summary of the direct and
indirect partnership, joint venture, or other Equity Interests, if any, of
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the Borrower and each Subsidiary of the Borrower in any Person that is not
a corporation. None of the issued and outstanding Capital Stock of the
Borrower or any of its Subsidiaries is subject to any vesting, redemption,
or repurchase agreement, and there are no warrants or options outstanding
with respect to such Capital Stock. The outstanding Capital Stock of the
Borrower and each of the Borrower's Subsidiaries is duly authorized,
validly issued, fully paid and nonassessable and the outstanding Capital
Stock of each of the Borrower's Subsidiaries is not Margin Stock.
6.9 ERISA. (A) Except as disclosed on SCHEDULE 6.9, no Benefit Plan
has incurred any accumulated funding deficiency (as defined in
Sections 302(a)(2) of ERISA and 412(a) of the Code) whether or not waived.
Neither the Borrower nor any member of the Controlled Group has incurred
any liability to the PBGC which remains outstanding other than the payment
of premiums, and there are no premium payments which have become due which
are unpaid. Schedule B to the most recent annual report filed with the IRS
with respect to each Benefit Plan and furnished to the lenders is complete
and accurate in all material respects. Since the date of each such
Schedule B, there has been no material adverse change in the funding status
or financial condition of the Benefit Plan relating to such Schedule B.
Neither the Borrower nor any member of the Controlled Group has (i) failed
to make a required contribution or payment to a Multiemployer Plan or
(ii) made a complete or partial withdrawal under Sections 4203 or 4205 of
ERISA from a Multiemployer Plan. Neither the Borrower nor any member of
the Controlled Group has failed to make a required installment or any other
required payment under Section 412 of the Code on or before the due date
for such installment or other payment. Neither the Borrower nor any member
of the Controlled Group is required to provide security to a Benefit Plan
under Section 401(a)(29) of the Code due to a Plan amendment that results
in an increase in current liability for the plan year. Except as disclosed
on SCHEDULE 6.9, neither the Borrower nor any of its Subsidiaries maintains
or contributes to any employee welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides benefits to employees after
termination of employment other than as required by Section 601 of ERISA.
Each Plan which is intended to be qualified under Section 401(a) of the
Code as currently in effect is so qualified, and each trust related to any
such Plan is exempt from federal income tax under Section 501(a) of the
Code as currently in effect except where any respective failure to be
qualified or exempt would not be material. The Borrower and all
Subsidiaries are in compliance in all material respects with the
responsibilities, obligations and duties imposed on them by ERISA and the
Code with respect to all Plans. Neither the Borrower nor any of its
Subsidiaries nor any fiduciary of any Plan has engaged in a material
nonexempt prohibited transaction described in Sections 406 of ERISA or 4975
of the Code. Neither the Borrower nor any member of the Controlled Group
has taken or failed to take any action which would constitute or result in
a material Termination Event. Neither the Borrower nor any Subsidiary is
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subject to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c)
of ERISA and no other member of the Controlled Group is subject to any
material liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. Neither the Borrower nor any of its Subsidiaries has, by reason of
the transactions contemplated hereby, any obligation to make any payment to
any employee pursuant to any Plan or existing contract or arrangement.
(B) For purposes of this SECTION 6.9, "material" means any
transaction, noncompliance or other basis for liability described in
SECTION 6.9(A) which could reasonably be expected to subject the Borrower
or any of its Subsidiaries to liability, individually or in the aggregate
with all other liabilities under SECTION 6.9(A), in excess of $7,500,000.
6.10 ACCURACY OF INFORMATION. The information, exhibits and reports
furnished by or on behalf of the Borrower and any of its Subsidiaries,
including, without limitation, the Bank Book, to any Agent, to any Arranger
or to any Lender in connection with the negotiation of, or compliance with,
the Loan Documents, the representations and warranties of the Borrower and
its Subsidiaries contained in the Loan Documents, and all certificates and
documents delivered to the Agents, Arrangers and the Lenders pursuant to
the terms thereof, taken as a whole, do not contain as of the date
furnished any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made, not
misleading.
6.11 SECURITIES ACTIVITIES. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock.
6.12 MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary is
a party to any Contractual Obligation or subject to any charter or other
corporate restriction which, individually or in the aggregate, will have or
could reasonably be expected to have a Material Adverse Effect or which
could reasonably be likely to subject the Borrower or any of its
Subsidiaries to liability, individually or in the aggregate, in excess of
$7,500,000 (other than ordinary course liabilities resulting from contracts
to purchase goods). Except in connection with the Disclosed Litigation,
neither the Borrower nor any of its Subsidiaries has received notice or has
knowledge that (i) it is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
any Contractual Obligation applicable to it, or (ii) any condition exists
which, with the giving of notice or the lapse of time or both, would
constitute a default with respect to any such Contractual Obligation.
Neither any default of any Contractual Obligation which is the subject of
any Disclosed Litigation nor any other default with respect to any other
Contractual Obligation of the Borrower or any of its Subsidiaries is
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reasonably expected to have a Material Adverse Effect or is reasonably
likely to subject the Borrower or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $7,500,000.
6.13 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries are in
compliance in all material respects with all Requirements of Law applicable
to them and their respective businesses, in each case where the failure to
so comply, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect or which could reasonably be likely to
subject the Borrower or any of its Subsidiaries to liability, individually
or in the aggregate, in excess of $7,500,000.
6.14 ASSETS AND PROPERTIES. The Borrower and each of its
Subsidiaries has good and marketable title to all of its assets and
properties (tangible and intangible, real or personal) owned by it or a
valid leasehold interest in all of its leased assets (except insofar as
marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free
and clear of all Liens, except Liens permitted under SECTION 7.3(C).
Substantially all of the assets and properties owned by, leased to or used
by the Borrower and/or each such Subsidiary of the Borrower are in adequate
operating condition and repair, ordinary wear and tear excepted. Neither
this Agreement nor any other Transaction Document, nor any transaction
contemplated under any such agreement, will affect any right, title or
interest of the Borrower or such Subsidiary in and to any of such assets in
a manner that would have or could reasonably be expected to have a Material
Adverse Effect.
6.15 STATUTORY INDEBTEDNESS RESTRICTIONS. Neither the Borrower nor
any of its Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, or the Investment Company Act of 1940, or any other federal or state
statute or regulation which limits its ability to incur indebtedness or its
ability to consummate the transactions contemplated hereby or in connection
with Specified Acquisitions and the related transactions.
6.16 INSURANCE. SCHEDULE 6.16 to this Agreement accurately sets
forth as of the Closing Date all insurance policies and programs currently
in effect with respect to the respective properties and assets and business
of the Borrower and its Subsidiaries, specifying, for each such policy and
program, (i) the amount thereof, (ii) the risks insured against thereby,
(iii) the name of the insurer and each insured party thereunder, (iv) the
policy or other identification number thereof, (v) the expiration date
thereof, (vi) the annual premium with respect thereto, and (vii) any
reserves relating to any self-insurance program that is in effect. Such
insurance policies and programs reflect coverage that is reasonably
consistent with prudent industry practice.
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6.17 LABOR MATTERS.
(A) Except as set forth on SCHEDULE 6.17 to this Agreement, there
are, on the Closing Date, no collective bargaining agreements, other labor
agreements or Multiemployer Plans covering any of the employees of the
Borrower or any of its Subsidiaries. As of the Closing Date, no requests
for recognition by unions other than those identified in SCHEDULE 6.17 have
been made to the Borrower. Also as of the Closing Date, there are no
pending Equal Employment Opportunity Commission charges, Unfair Labor
Practice Charges, state or federal DOL investigations or other employment
or related charges, complaints or claims or any strikes or walkouts
affecting the operation of the Borrower or any of its Subsidiaries which
are reasonably expected to have a Material Adverse Effect or to subject the
Borrower or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $7,000,000. In addition, the Borrower is in
negotiations to close its Plymouth, Michigan facility. While the Borrower
believes its legal plan will foreclose any liability, these negotiations
are on-going and as of the Closing Date are unresolved. The Borrower does
not reasonably anticipate that closing its Plymouth, Michigan facility will
have a Material Adverse Effect.
(B) Set forth in SCHEDULE 6.17 to this Agreement is a list, as of the
Closing Date, of all material consulting agreements, executive compensation
plans, deferred compensation agreements, employee pension plans or
retirement plans, employee profit sharing plans, employee stock purchase
and stock option plans, severance plans, group life insurance,
hospitalization insurance or other plans or arrangements of the Borrower
and its Subsidiaries providing for benefits for employees of the Borrower
and its Subsidiaries.
6.18 ENVIRONMENTAL MATTERS. (A) Except as disclosed on SCHEDULE 6.18
to this Agreement:
(i) the operations of the Borrower and its Subsidiaries comply
in all material respects with Environmental, Health or Safety
Requirements of Law;
(ii) the Borrower and its Subsidiaries have all permits,
licenses or other authorizations required under Environmental, Health
or Safety Requirements of Law and are in material compliance with such
permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of
their respective present property or operations, or, to the best of
the Borrower's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the subject
of, any investigation known to the Borrower or any of its
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Subsidiaries, any judicial or administrative proceeding, order,
judgment, decree, settlement or other agreement respecting: (A) any
material violation of Environmental, Health or Safety Requirements of
Law; (B) any remedial action; or (C) any material claims or
liabilities arising from the Release or threatened Release of a
Contaminant into the environment;
(iv) there is not now, nor to the best of the Borrower's or any
of its Subsidiaries' knowledge has there ever been on or in the
property of the Borrower or any of its Subsidiaries any landfill,
waste pile, underground storage tanks, aboveground storage tanks,
surface impoundment or hazardous waste storage facility of any kind,
any polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or any asbestos containing material;
and
(v) neither the Borrower nor any of its Subsidiaries has any
material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
(B) For purposes of this SECTION 6.18 "material" means any
noncompliance or basis for liability described in this SECTION 6.18 which
could reasonably be likely to subject the Borrower or a Subsidiary of the
Borrower to liability, individually or in the aggregate with all other
liabilities under SECTION 6.18, in excess of $7,500,000.
6.19 SOLVENCY. After giving effect to the (i) Loans to be made on
the Closing Date or such other date as Loans requested hereunder are made
and consummation of the other transactions contemplated by this Agreement
and (ii) the payment and accrual of all transaction costs with respect to
the foregoing, the Borrower and each of its Subsidiaries is Solvent. After
giving effect to the (i) the Specified Acquisitions or any other Permitted
Acquisition and (iii) the payment and accrual of all transaction costs with
respect to the foregoing, the Borrower and each of its Subsidiaries is
Solvent.
6.20 FOREIGN EMPLOYEE BENEFIT MATTERS. Each Foreign Employee Benefit
Plan is in compliance in all respects with all laws, regulations and rules
applicable thereto and the respective requirements of the governing
documents for such Plan, except for any non-compliance the consequences of
which, in the aggregate, would not result in a material obligation to pay
money. The aggregate of the accumulated benefit obligations under all
Foreign Pension Plans does not exceed the current fair market value of the
assets held in the trusts or similar funding vehicles for such Plans or
reasonable reserves have been established in accordance with prudent
business practices or as required by Agreement Accounting Principles with
respect to any shortfall. With respect to any Foreign Employee Benefit
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Plan maintained or contributed to by the Borrower or any Subsidiary or any
member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent
business practice or where required by ordinary accounting practices in the
jurisdiction in which such Plan is maintained. There are no actions, suits
or claims (other than routine claims for benefits) pending or, to the
knowledge of the Borrower, threatened against the Borrower or any
Subsidiary or any ERISA Affiliate with respect to any Foreign Employee
Benefit Plan.
6.21. BENEFITS. The Borrower and each of its Subsidiaries will
benefit from the financing arrangement established by this Agreement. The
Agents, Arrangers and the Lenders have stated and the Borrower acknowledges
that, but for the agreement by each of the Subsidiaries to execute and
deliver its Guaranty and Collateral Documents, the Agents and the Lenders
would not have made available the credit facilities established hereby on
the terms set forth herein.
6.22. YEAR 2000 ISSUES. The Borrower and each of its Subsidiaries
has (A) made a complete and full assessment of the Borrower and its
Subsidiaries' Year 2000 Issues arising from computers or computer
applications used by the Borrower or its Subsidiaries and (B) made
reasonable inquiries of the material customers, suppliers and vendors of
the Borrower and its Subsidiaries regarding Year 2000 Issues arising from
computers or computer applications used by such customers, suppliers and
vendors; (ii) have a realistic and achievable program for remediating the
Year 2000 Issues identified as a result of such assessment and inquiries on
a timely basis. Based on such assessment, inquiries and program, the
Borrower does not reasonably anticipate that Year 2000 Issues will have a
Material Adverse Effect.
6.23. SUBORDINATED INDEBTEDNESS. The Secured Obligations constitute
senior indebtedness which is entitled to the benefits of the subordination
provisions of all outstanding Subordinated Indebtedness of the Borrower or
its Subsidiaries.
ARTICLE VII: COVENANTS
The Borrower covenants and agrees that so long as any Commitments are
outstanding and thereafter until payment in full of all of the Secured
Obligations (other than contingent indemnity obligations), unless the
Required Lenders shall otherwise give prior written consent:
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7.1 REPORTING. The Borrower shall:
(A) FINANCIAL REPORTING. Furnish to the Lenders:
(i) MONTHLY REPORTS. As soon as practicable, and in any event
within thirty (30) days after the end of each fiscal four-week period,
the consolidated and consolidating balance sheets of the Borrower and
its Subsidiaries as at the end of such period and the related
consolidated and consolidating statements of income and cash flows of
the Borrower and its Subsidiaries for such calendar month, certified
by the Director of Finance or Vice President of Finance of the
Borrower on behalf of the Borrower as fairly presenting the
consolidated and consolidating financial position of the Borrower and
its Subsidiaries as at the dates indicated and the results of their
operations and cash flows for the calendar months indicated in
accordance with Agreement Accounting Principles, subject to normal
year end adjustments; provided, however that notwithstanding the
foregoing, the Borrower shall be required to deliver the consolidated
financial statements set forth above beginning with the fiscal four-
week period ending on or about January 31, 2000.
(ii) QUARTERLY REPORTS. As soon as practicable, and in any
event within forty-five (45) days after the end of each fiscal quarter
in each fiscal year, the consolidated and consolidating balance sheet
of the Borrower and its Subsidiaries as at the end of such period and
the related consolidated and consolidating statements of income and
cash flows of the Borrower and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter, along with
consolidating schedules in form and substance sufficient to calculate
the financial covenants set forth in SECTION 7.4, all certified by the
Director of Finance or Vice President of Finance of the Borrower on
behalf of the Borrower as fairly presenting the consolidated and
consolidating financial position of the Borrower and its Subsidiaries
as at the dates indicated and the results of their operations and cash
flows for the periods indicated in accordance with Agreement
Accounting Principles, subject to normal year end adjustments, and in
comparative form the corresponding figures for the previous fiscal
year together with a comparison of the statements of income and cash
flows to the budget.
(iii) ANNUAL REPORTS. As soon as practicable, and in any event
within ninety (90) days after the end of each fiscal year, (a) the
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year and the related consolidated statements of
income, stockholders' equity and cash flows of the Borrower and its
Subsidiaries for such fiscal year, and in comparative form the
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corresponding figures for the previous fiscal year along with
consolidating schedules in form and substance sufficient to calculate
the financial covenants set forth in SECTION 7.4, (b) a schedule from
the Borrower setting forth for each item in CLAUSE (A) hereof, the
corresponding figures from the consolidated financial budget for the
current fiscal year delivered pursuant to SECTION 7.1(A)(V), and (c)
an audit report on the consolidated financial statements listed in
CLAUSE (A) hereof of independent certified public accountants of
recognized national standing, which audit report shall be unqualified
and shall state that such financial statements fairly present the
consolidated financial position of the Borrower and its Subsidiaries
as at the dates indicated and the results of their operations and cash
flows for the periods indicated in conformity with Agreement
Accounting Principles and that the audit by such accountants in
connection with such consolidated financial statements has been made
in accordance with generally accepted auditing standards. The
deliveries made pursuant to this CLAUSE (III) shall be accompanied
by a certificate of such accountants that, in the course of their
audit necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Unmatured Default, or if, in
the opinion of such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof.
(iv) OFFICER'S CERTIFICATE. Together with each delivery of any
financial statement (a) pursuant to CLAUSES (I), (II) and (III) of
this SECTION 7.1(A), an Officer's Certificate of the Borrower,
substantially in the form of EXHIBIT H attached hereto and made a part
hereof, stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status
thereof and (b) pursuant to CLAUSES (I), (II) and (III) of this
SECTION 7.1(A), a compliance certificate, substantially in the form of
EXHIBIT I attached hereto and made a part hereof, signed by the
Borrower's Director of Finance or Vice President of Finance, setting
forth calculations for the period then ended for SECTION 2.4(B), if
applicable, which demonstrate compliance, when applicable, with the
provisions of SECTION 7.4, and which calculate the Leverage Ratio for
purposes of determining the then Applicable Floating Rate Margins and
Applicable Eurodollar Margins.
(v) BUDGETS; BUSINESS PLANS; FINANCIAL PROJECTIONS. As soon as
practicable and in any event not later than thirty (30) days after the
beginning of each fiscal year, a copy of the plan and forecast
(including a projected balance sheet, income statement and a statement
of cash flow) of the Borrower and its Subsidiaries for such fiscal
year, prepared in such detail as shall be reasonably satisfactory to
the Agents.
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(vi) MANAGEMENT LETTERS. As soon as practicable and in any
event within ten (10) Business Days after receipt thereof, a copy of
any management letter prepared by the accountants to the Borrower or
any of its Subsidiaries.
(B) NOTICE OF DEFAULT. Promptly upon any of the chief executive
officer, chief operating officer, Director of Finance, Vice President of
Finance, treasurer or controller of the Borrower obtaining knowledge (i) of
any condition or event which constitutes a Default or Unmatured Default, or
becoming aware that any Lender or any Agent has given any written notice
with respect to a claimed Default or Unmatured Default under this
Agreement, or (ii) that any Person has given any written notice to the
Borrower or any Subsidiary of the Borrower or taken any other action with
respect to a claimed default or event or condition of the type referred to
in SECTION 8.1(E), deliver to the Agents an Officer's Certificate
specifying (a) the nature and period of existence of any such claimed
default, Default, Unmatured Default, condition or event, (b) the notice
given or action taken by such Person in connection therewith, and (c) what
action the Borrower has taken, is taking and proposes to take with respect
thereto.
(C) LAWSUITS. (i) Promptly upon any chief executive officer, chief
operating officer, Director of Finance, Vice President of Finance,
treasurer, controller or general counsel of the Borrower obtaining
knowledge of the institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting
the Borrower or any of its Subsidiaries or any property of the Borrower or
any of its Subsidiaries which is not Disclosed Litigation and which action,
suit, proceeding, governmental investigation or arbitration exposes, or in
the case of multiple actions, suits, proceedings, governmental
investigations or arbitrations arising out of the same general allegations
or circumstances could reasonably be expected to have a Material Adverse
Effect or result in liability, individually or in the aggregate in excess
of $5,000,000, give written notice thereof to the Agents and provide such
other information as may be reasonably available to enable each Lender and
the Agents and their respective counsel to evaluate such matters (at which
time such items shall be included in Disclosed Litigation for all purposes
hereof); and (ii) in addition to the requirements set forth in CLAUSE (I)
of this SECTION 7.1(C), upon request of any Agent or the Required Lenders,
promptly give written notice of the status of the Disclosed Litigation or
any action, suit, proceeding, governmental investigation or arbitration
covered by a report delivered pursuant to CLAUSE (I) above or disclosed in
any filing with the Commission and provide such other information as may be
reasonably available to it to enable each Lender and the Agents and their
respective counsel to evaluate such matters.
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(D) ERISA NOTICES. Deliver or cause to be delivered to the Agents,
at the Borrower's expense, the following information and notices as soon as
reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the Borrower obtains
knowledge that a Termination Event has occurred which could reasonably
be expected to subject the Borrower or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of $1,000,000,
a written statement of the Director of Finance or Vice President of
Finance of the Borrower describing such Termination Event and the
action, if any, which the Borrower has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto and (b) within
ten (10) Business Days after any member of the Controlled Group
obtains knowledge that a Termination Event has occurred which could
reasonably be expected to subject the Borrower or any of its
Subsidiaries to liability, individually or in the aggregate, in excess
of $5,000,000, a written statement of the Director of Finance or Vice
President of Finance of the Borrower describing such Termination Event
and the action, if any, which the member of the Controlled Group has
taken, is taking or proposes to take with respect thereto, and when
known, any action taken or threatened by the IRS, DOL or PBGC with
respect thereto;
(ii) within ten (10) Business Days after the Borrower or any of
its Subsidiaries obtains knowledge that a prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred which could reasonably be expected to subject the Borrower or
any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $1,000,000, a statement of the Director of
Finance or Vice President of Finance of the Borrower describing such
transaction and the action which the Borrower or such Subsidiary has
taken, is taking or proposes to take with respect thereto;
(iii) within ten (10) Business Days after an increase in the
benefits of any existing Benefit Plan or any Plan that provides
welfare benefits to former employees (other than pursuant to Part 6 of
Title I of ERISA) which could reasonably be expected to subject the
Borrower or any of its Subsidiaries to liability, individually or in
the aggregate, in excess of $5,000,000, or the establishment of any
new Benefit Plan or the commencement of, or obligation to commence,
contributions to any Benefit Plan or Multiemployer Plan to which the
Borrower or any member of the Controlled Group was not previously
contributing, notification of such increase, establishment,
commencement or obligation to commence and the amount of such
contributions;
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(iv) within ten (10) Business Days after the Borrower or any of
its Subsidiaries receives notice of any unfavorable determination
letter from the IRS regarding the qualification of a Plan under
Section 401(a) of the Code, copies of each such letter;
(v) within ten (10) Business Days after the establishment of any
foreign employee benefit plan or the commencement of, or obligation to
commence, contributions to any foreign employee benefit plan to which
the Borrower or any Subsidiary was not previously contributing,
notification of such establishment, commencement or obligation to
commence and the amount of such contributions;
(vi) within ten (10) Business Days following the request
therefor by any Agent or any Lender, copies of each annual report
(form 5500 series), including Schedule B thereto, filed with respect
to each Benefit Plan;
(vii) within ten (10) Business Days following the request
therefor by any Agent or any Lender of each actuarial report for any
Benefit Plan or Multiemployer Plan and each annual report for any
Multiemployer Plan, copies of each such report;
(viii) within ten (10) Business Days after the filing thereof
with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all communications received by the Borrower or
a member of the Controlled Group with respect to such request;
(ix) within ten (10) Business Days after receipt by the Borrower
or any member of the Controlled Group of the PBGC's intention to
terminate a Benefit Plan pursuant to an involuntary termination or to
have a trustee appointed to administer a Benefit Plan, copies of each
such notice;
(x) within ten (10) Business Days after receipt by the Borrower
or any member of the Controlled Group of a notice from a Multiemployer
Plan regarding the imposition of withdrawal liability, copies of each
such notice;
(xi) within ten (10) Business Days after the Borrower or any
member of the Controlled Group fails to make a required installment or
any other required payment under Section 412 of the Code on or before
the due date for such installment or payment, a notification of such
failure; and
(xii) within ten (10) Business Days after the Borrower or any
member of the Controlled Group knows or has reason to know that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan
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sponsor of a Multiemployer Plan intends to terminate a Multiemployer
Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan.
For purposes of this SECTION 7.1(D), the Borrower, any of its Subsidiaries
and any member of the Controlled Group shall be deemed to know all facts
known by the Administrator of any Plan of which the Borrower or any member
of the Controlled Group or such Subsidiary is the plan sponsor.
(E) LABOR MATTERS. Notify the Agents in writing, promptly upon the
Borrower's learning thereof, of (i) any material labor dispute to which the
Borrower or any of its Subsidiaries may become a party, including, without
limitation, any grievances, unfair labor practice charges, strikes,
lockouts or other disputes relating to such Persons' plants and other
facilities and (ii) any Worker Adjustment and Retraining Notification Act
liability incurred with respect to the closing of any plant or other
facility of the Borrower or any of its Subsidiaries.
(F) OTHER INDEBTEDNESS. Deliver to the Agents (i) a copy of each
regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or
on behalf of the Borrower or any of its Subsidiaries to the holders of
funded Indebtedness pursuant to the terms of the agreements governing such
Indebtedness, such delivery to be made at the same time and by the same
means as such notice or other communication is delivered to such holders,
and (ii) a copy of each notice or other communication received by the
Borrower or any of its Subsidiaries from the holders of funded Indebtedness
pursuant to the terms of such Indebtedness, such delivery to be made
promptly after such notice or other communication is received by the
Borrower.
(G) OTHER REPORTS. Deliver or cause to be delivered to the Agents
copies of all financial statements, reports and notices, if any, sent or
made available generally by the Borrower to its securities holders or filed
with the Commission by the Borrower, all press releases made available
generally by the Borrower or any of the Borrower's Subsidiaries to the
public concerning material developments in the business of the Borrower or
any such Subsidiary and all notifications received from the Commission by
the Borrower or its Subsidiaries pursuant to the Securities Exchange Act of
1934 and the rules promulgated thereunder.
(H) ENVIRONMENTAL NOTICES. As soon as possible and in any event
within ten (10) days after receipt by the Borrower, deliver to the Agents a
copy of (i) any notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result of the
Release by the Borrower, any of its Subsidiaries, or any other Person of
any Contaminant into the environment, and (ii) any notice alleging any
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violation of any Environmental, Health or Safety Requirements of Law by the
Borrower or any of its Subsidiaries if, in either case, such notice or
claim relates to an event which could reasonably be expected to subject the
Borrower or any of its Subsidiaries to liability, individually or in the
aggregate, in excess of $5,000,000.
(I) YEAR 2000 INFORMATION. Upon the request of any Agent or any
Lender, the Borrower will provide to the Agents a description of its Year
2000 program, including updates and progress reports. The Borrower will
advise the Agents of any reasonably anticipated Material Adverse Effect as
a result of Year 2000 Issues.
(J) OTHER INFORMATION. Promptly upon receiving a request therefor
from the any Agent, prepare and deliver to the Agents such other
information with respect to the Borrower, any of its Subsidiaries, or the
Collateral, including, without limitation, schedules identifying and
describing the Collateral and any dispositions thereof or any Asset Sale or
Financing (and the use of the Net Cash Proceeds thereof), as from time to
time may be reasonably requested by any Agent.
7.2 AFFIRMATIVE COVENANTS.
(A) CORPORATE EXISTENCE, ETC. The Borrower shall, and shall cause
each of its Subsidiaries to, at all times maintain its corporate existence
and preserve and keep, or cause to be preserved and kept, in full force and
effect its rights and franchises material to its businesses.
(B) CORPORATE POWERS; CONDUCT OF BUSINESS. The Borrower shall, and
shall cause each of its Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires
it to be so qualified and where the failure to be so qualified will have or
could reasonably be expected to have a Material Adverse Effect. The
Borrower will, and will cause each Subsidiary to, carry on and conduct its
business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted; provided it is expressly
understood and agreed that the Borrower and its Subsidiaries can own and
engage in the business of retail grocery operations.
(C) COMPLIANCE WITH LAWS, ETC. The Borrower shall, and shall cause
its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, properties,
assets or operations of such Person, and (b) obtain as needed all Permits
necessary for its operations and maintain such Permits in good standing
unless failure to comply or obtain could not reasonably be expected to have
a Material Adverse Effect or which could reasonably be likely to subject
the Borrower or any of its Subsidiaries to liability, individually or in
the aggregate, in excess of $7,500,000.
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(D) PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION. The Borrower
shall pay, and cause each of its Subsidiaries to pay, (i) all taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business,
income or property before any penalty or interest accrues thereon, and (ii)
all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and
which by law have or may become a Lien (other than a Lien permitted by
SECTION 7.3(C)) upon any of the Borrower's or such Subsidiary's property
or assets, prior to the time when any penalty or fine shall be incurred
with respect thereto; PROVIDED, HOWEVER, that no such taxes, assessments
and governmental charges referred to in CLAUSE (I) above or claims referred
to in CLAUSE (II) above (and interest, penalties or fines relating thereto)
need be paid if being contested in good faith by appropriate proceedings
diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with
Agreement Accounting Principles shall have been made therefor.
(E) INSURANCE. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full
force and effect, the insurance policies and programs listed on SCHEDULE
6.16 to this Agreement or substantially similar policies and programs or
other policies and programs as reflect coverage that is reasonably
consistent with prudent industry practice. The Borrowers shall deliver to
the Collateral Agent endorsements (y) to all "All Risk" physical damage
insurance policies on all of the Borrowers' tangible real and personal
property and assets and business interruption insurance policies naming the
Collateral Agent loss payee, and (z) to all general liability and other
liability policies naming the Collateral Agent an additional insured. In
the event the Borrower or any of its Subsidiaries at any time or times
hereafter shall fail to obtain or maintain any of the policies or insurance
required herein or to pay any premium in whole or in part relating thereto,
then the Collateral Agent, without waiving or releasing any obligations or
resulting Default hereunder, may at any time or times thereafter (but shall
be under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect
thereto which the Collateral Agent deems advisable. For the avoidance of
doubt, unless the Borrower provides the Collateral Agent with evidence of
the insurance coverage required hereunder, the Collateral Agent may
purchase insurance at the Borrower's expense to protect the Holders of
Secured Obligations' interests in the Borrower's Collateral. This
insurance may, but need not, protect the Borrower's interests. The
coverage that the Collateral Agent purchases may not pay any claim that the
Borrower makes or any claim that is made against the Borrower in connection
with the Collateral. The Borrower may later cancel any insurance purchased
by the Collateral Agent, but only after providing the Collateral Agent with
evidence that the Borrower has obtained insurance as required by this
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Agreement. If the Collateral Agent purchases insurance for the Collateral,
the Borrower will be responsible for the costs of that insurance, including
interest and any other charges that may be imposed in connection with the
placement of insurance, until the effective date of the cancellation or
expiration of the insurance. The costs of the insurance may be more than
the cost of insurance the Borrower may be able to obtain on its own. All
sums so disbursed by the Collateral Agent shall constitute part of the
Obligations, payable as provided in this Agreement.
(F) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The
Borrower shall permit and cause each of the Borrower's Subsidiaries to
permit, any authorized representative(s) designated by any Agent or any
Lender to visit and inspect any of the properties of the Borrower or any of
its Subsidiaries, to examine, audit, check and make copies of their
respective financial and accounting records, books, journals, orders,
receipts and any correspondence and other data relating to their respective
businesses or the transactions contemplated hereby (including, without
limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers and independent certified public accountants, all upon reasonable
notice and at such reasonable times during normal business hours, as often
as may be reasonably requested. The Borrower shall keep and maintain, and
cause each of the Borrower's Subsidiaries to keep and maintain, in all
material respects, proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be made of all
dealings and transactions in relation to their respective businesses and
activities. If a Default has occurred and is continuing, the Borrower,
upon any Agent's request, shall turn over copies of any such records to the
Agents or their representatives.
(G) ERISA COMPLIANCE. The Borrower shall, and shall cause each of
the Borrower's Subsidiaries to, establish, maintain and operate all Plans
to comply in all material respects with the provisions of ERISA, the Code,
all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for
such Plans, except where noncompliance will not have or is not reasonably
likely to subject the Borrower or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $5,000,000.
(H) MAINTENANCE OF PROPERTY. The Borrower shall cause all property
used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and shall cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Borrower may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in
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this SECTION 7.2(H) shall prevent the Borrower from discontinuing the
operation or maintenance of any of such property if such discontinuance is,
in the judgment of the Borrower, desirable in the conduct of its business
or the business of any Subsidiary and not disadvantageous in any material
respect to the Agents or the Lenders.
(I) ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries
shall comply in all material respects with all Environmental, Health or
Safety Requirements of Law, except where noncompliance will not have or is
not reasonably likely to subject the Borrower or any of its Subsidiaries to
liability, individually or in the aggregate, in excess of $7,500,000.
(J) USE OF PROCEEDS. The Borrower shall use the proceeds of the
Revolving Loans, Acquisition Facility Loans and the Term Loans to (i) repay
existing Indebtedness, (ii) provide funds for the additional working
capital needs and other general corporate purposes of the Borrower and its
Subsidiaries, (iii) finance the Specified Acquisitions and other Permitted
Acquisitions and (iv) pay fees and expenses incurred in connection with
this Agreement, the other Loan Documents, the Specified Acquisitions and
the Permitted Acquisitions; provided, however, Acquisition Facility Loans
shall be used solely to, (y) finance Permitted Acquisitions other than the
Specified Acquisitions and (z) pay fees and expenses incurred in connection
with Permitted Acquisitions other than the Specified Acquisitions. The
Borrower will not, nor will it permit any Subsidiary to, use any of the
proceeds of the Loans to purchase or carry any Margin Stock or to make any
Acquisition, other than the Specified Acquisitions and other Permitted
Acquisitions pursuant to SECTION 7.3(G).
(K) FOREIGN EMPLOYEE BENEFIT COMPLIANCE. The Borrower shall, and
shall cause each of its Subsidiaries and ERISA Affiliates to, establish,
maintain and operate all Foreign Employee Benefit Plans to comply in all
material respects with all laws, regulations and rules applicable thereto
and the respective requirements of the governing documents for such Plans,
except for failures to comply which, in the aggregate, would not result in
a material obligation to pay money.
(L) YEAR 2000 ISSUES. The Borrower shall and shall cause each of its
Subsidiaries to take all actions reasonably necessary to assure that the
Year 2000 Issues will not have a Material Adverse Effect.
(M) INSURANCE AND CONDEMNATION PROCEEDS. The Borrower directs and
shall cause its Subsidiaries to direct all insurers under policies of
property damage, boiler and machinery and business interruption insurance
and payors of any condemnation claim or award relating to the property to
pay all proceeds payable under such policies or with respect to such claim
or award for any loss with respect to the Collateral directly to the
Collateral Agent, for the benefit of the Collateral Agent and the Holders
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of the Secured Obligations; PROVIDED, HOWEVER, in the event that such
proceeds or awards aggregate less than $2,000,000 for all claims or awards
subsequent to the Closing Date ("EXCLUDED PROCEEDS"), unless a Default
shall have occurred and be continuing, the Collateral Agent shall remit
such Excluded Proceeds to the Borrower. The Collateral Agent shall hold
such proceeds as cash collateral for the Obligations. For up to 180 days
from the date of any loss (the "DECISION PERIOD"), the Borrower may notify
the Collateral Agent that it intends to restore, rebuild or replace the
property subject to any insurance payment or condemnation award and shall,
as soon as practicable thereafter, provide the Collateral Agent detailed
information, including a construction schedule and cost estimates. Should
a Default occur at any time during the Decision Period, should the Borrower
notify the Collateral Agent that it has decided not to rebuild or replace
such property during the Decision Period, or should the Borrower fail to
notify the Collateral Agent of the Borrower's decision during the Decision
Period, then the amounts held as cash collateral pursuant to this SECTION
7.2(M) shall upon the Required Lenders' direction be paid to the
Administrative Agent for the ratable benefit of the Lenders for application
as a prepayment to the outstanding Loans, such prepayment to be treated as
a Designated Prepayment from Asset Sales in accordance with the terms of
SECTION 2.4(B). Proceeds held as cash collateral pursuant to this SECTION
7.2(M) shall be disbursed as payments for restoration, rebuilding or
replacement of such property as such amounts become due pursuant to
documentation reasonably acceptable to the Collateral Agent; PROVIDED,
HOWEVER, should a Default occur after the Borrower has notified the
Collateral Agent that it intends to rebuild or replace the property, the
amounts held as cash collateral may, or shall, upon the Required Lenders'
direction be applied as a prepayment of the Loans as set forth above. Upon
completion of the restoration, rebuilding or replacement of such property,
the unused proceeds shall be applied as a prepayment of the Loans as set
forth above. All insurance and condemnation proceeds shall be subject to
the security interest of the Collateral Agent on behalf of itself and the
Holders of Secured Obligations under the Collateral Documents until so
released.
(N) COLLATERAL DOCUMENTS. Without in any way limiting the
requirements and covenants set forth in the Collateral Documents, if,
subsequent to the Closing Date, the Borrower or any Subsidiary shall
(a) acquire any intellectual property, securities, instruments, chattel
paper or other personal property required to be delivered to the Collateral
Agent as Collateral hereunder or under any of the Collateral Documents or
(b) acquire, construct or lease any real property, the Borrower shall
promptly (and in any event within five (5) Business Days) after any
executive officer of the Borrower or any of its Subsidiaries acquires
knowledge of same notify the Agents of same. The Borrower shall, and shall
cause each of its Subsidiaries to, take such action at its own expense as
reasonably requested by any Agent to ensure that the Collateral Agent has a
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first priority (subject to any applicable Lien permitted under
SECTION 7.3(C)) perfected Lien to secure the Secured Obligations in (i) all
owned real property and personal property of the Borrower and its
Subsidiaries located in the United States (other than (w) certain real
property of Market Development Corporation in Sterling Heights, Michigan
and Battle Creek, Michigan which, as of the Closing Date is scheduled for
sale; (x) certain real property leased in Canton, Michigan for so long as
such property is leased by MDP LLC; and (y) certain real property of Market
Development Corporation in the Cascade East Shopping Center in Grand
Rapids, Michigan which shall be required to be mortgaged pursuant to the
terms hereof not later than April 30, 1999; and (z) certain real property
owned by J.F. Walker Distributing Company in Louisville, Kentucky, which
shall be required to be mortgaged pursuant to the terms hereof not later
than July 31, 1999), (ii) to the extent deemed to be material by any Agent
or the Required Lenders in its or their sole reasonable discretion, all
other owned real and personal property of the Borrower and its
Subsidiaries, (iii) all leased real property located in the United States,
subject in each case only to Liens permitted under SECTION 7.3(C) and (iv)
all Capital Stock of each of the Borrower's Subsidiaries. The Borrower
shall, and shall cause each of its Subsidiaries to, adhere to the covenants
set forth in the Collateral Documents, including, without limitation, the
covenants regarding the location of personal property as set forth in the
Security Agreements.
(O) INTEREST RATE AGREEMENTS. Not later than the date that is thirty
days following the date hereof, the Borrower shall enter into and shall
thereafter maintain, Interest Rate Agreements on terms and with
counterparties rated at least A by Standard & Poor's Ratings Corporation,
selected by the Borrower and reasonably acceptable to the Agents pursuant
to which the Borrower is protected against increases in interest rates from
and after the date of such contracts in the aggregate notional amount of at
least $162,500,000 for the first four (4) years during the term of this
Agreement. In the event a Lender elects to enter into any Interest Rate
Agreement with the Borrower, the obligations of the Borrower with respect
to such Interest Rate Agreement shall be Secured Obligations secured by the
Collateral.
(P) ADDITION OF GUARANTORS; ADDITION OF PLEDGED CAPITAL STOCK AND
OTHER COLLATERAL. The Borrower shall cause (i) each Subsidiary that is (y)
a Subsidiary as of the date of this Agreement (other than MDP LLC) or (z)
at any time thereafter, a Material Subsidiary, and (ii) each other
Subsidiary necessary for the Borrower to comply with the requirements set
forth in SECTION 7.3(Q), to deliver to the Collateral Agent an executed
Guaranty Supplement to become a Guarantor under the Guaranty in the form of
EXHIBIT A attached to the Guaranty and appropriate corporate resolutions,
opinions and other documentation in form and substance reasonably
satisfactory to the Agents, such Guaranty Supplement and other
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documentation to be delivered to the Collateral Agent as promptly as
possible but in any event (1) on the date of the consummation of a
Permitted Acquisition involving a Material Subsidiary and (2) otherwise
within thirty (30) days of determination that a Subsidiary is a Material
Subsidiary or otherwise needs to be added as a Guarantor. Simultaneously
with any Subsidiary becoming a Guarantor, the Borrower shall (or, if the
Capital Stock of such Subsidiary is owned by another Subsidiary, shall
cause such other Subsidiary to) deliver to the Collateral Agent an executed
supplement to the Pledge Agreement or a Pledge Agreement, together with
appropriate corporate resolutions, opinions, stock certificates, UCC
filings or amendments and other documentation, in each case in form and
substance reasonably satisfactory to the Agents and the Agents shall be
reasonably satisfied that the Collateral Agent has a first priority
perfected pledge of all of the Capital Stock of such Guarantor owned by the
Borrower and its Subsidiaries. Simultaneously with any Subsidiary becoming
a Guarantor, the Borrower shall cause such Subsidiary to (i) execute and
deliver a Security Agreement (and deliver the other documents required
thereby) and, if applicable, Intellectual Property Agreements; (ii) if such
Subsidiary owns or leases any real property deemed to be material by the
Agents or the Required Lenders in its or their sole discretion, deliver to
the Collateral Agent with respect to such real property Collateral
Documents to provide the Collateral Agent with a first priority perfected
security interest therein and lien thereon all in form, content and scope
reasonably satisfactory to the Agents and (iii) deliver such other
documentation as the Agents may reasonably require in connection with the
foregoing, including, without limitation, appropriate UCC-1 financing
statements, real estate title insurance policies, environmental reports,
landlord's waivers (to the extent and on the time frame set forth in the
Security Agreements), certified resolutions and other organizational and
authorizing documents of such Subsidiary, favorable opinions of counsel to
such Subsidiary (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred
to above and the perfection of the Collateral Agent's liens thereunder) and
other items of the types required to be delivered by the Borrower and its
Subsidiaries pursuant to Section 5.1 as of the Closing Date, all in form,
content and scope reasonably satisfactory to the Agents.
(Q) SEVERANCE/LABOR RESERVES. The Borrower shall, and shall cause
each of the Borrower's Subsidiaries to, preserve and at all times maintain
sufficient monetary reserves to cover any and all severance or other
obligations such entity may have, including without limitation any back pay
or other compensatory liability resulting from the filing of any grievance,
suit, unfair labor practice charge filed with the National Labor Relations
Board, or charge filed with any other Governmental Authority, against said
entity, with respect to any plant closing or reduction in force which has
occurred or is anticipated to occur by said entity.
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(R) POST-CLOSING REQUIREMENTS. In addition to the items to be
performed by the Borrower and its Subsidiaries under the terms of the
Escrow Agreement in order to obtain funds under the Escrow Agreement for
the consummation of the Specified Acquisitions, the Borrower shall take the
actions set forth on and in accordance with SCHEDULE 7.2(R) hereto, as such
Schedule may be modified from time to time by the Agents and the Borrower.
7.3 NEGATIVE COVENANTS.
(A) INDEBTEDNESS. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly create, incur, assume or otherwise become or
remain directly or indirectly liable with respect to any Indebtedness,
except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and Permitted Refinancing
Indebtedness;
(iii) Indebtedness in respect of obligations secured by
Customary Permitted Liens;
(iv) Indebtedness constituting Contingent Obligations permitted
by SECTION 7.3(E);
(v) Indebtedness in respect of Hedging Obligations permitted
under SECTION 7.3(P);
(vi) secured or unsecured purchase money Indebtedness (including
Capitalized Leases) incurred by the Borrower or any of its
Subsidiaries after the Closing Date to finance the acquisition of
fixed assets, if (1) at the time of such incurrence, no Default or
Unmatured Default has occurred and is continuing or would result from
such incurrence, (2) such Indebtedness has a scheduled maturity and is
not due on demand, (3) such Indebtedness does not exceed the lower of
the fair market value or the cost of the applicable fixed assets on
the date acquired, (4) such Indebtedness does not exceed $10,000,000
in the aggregate outstanding at any time, and (5) any Lien securing
such Indebtedness is permitted under SECTION 7.3(C) (such Indebtedness
being referred to herein as "PERMITTED PURCHASE MONEY INDEBTEDNESS");
PROVIDED, HOWEVER, that no such Indebtedness shall be incurred if
either a Default or an Unmatured Default shall have occurred and be
continuing at the date of issuance or incurrence thereof or would
result therefrom;
(vii) Indebtedness with respect to surety, appeal and
performance bonds obtained by the Borrower or any of its Subsidiaries
in the ordinary course of business;
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(viii) provided the Agents shall have been provided with copies
of the documentation in connection therewith not fewer than ten (10)
Business Days prior to the issuance thereof, unsecured Subordinated
Indebtedness incurred by the Borrower to the seller in any Permitted
Acquisition as part of the consideration therefor; PROVIDED, HOWEVER,
that no such Indebtedness shall be incurred if either a Default or an
Unmatured Default shall have occurred and be continuing at the date of
issuance or incurrence thereof or would result therefrom;
(ix) Indebtedness arising from intercompany loans from the
Borrower to any Subsidiary which is a Guarantor or from any Subsidiary
which is a Guarantor to the Borrower or any other Guarantor; PROVIDED
that in each case such Indebtedness is subordinated upon terms
satisfactory to the Agents to the obligations of the Borrower and its
Subsidiaries with respect to the Obligations;
(x) unsecured Indebtedness in addition to that referred to
elsewhere in this SECTION 7.3(A) in an amount not to exceed
$10,000,000 at any time; PROVIDED, HOWEVER, that no such Indebtedness
shall be incurred if either a Default or an Unmatured Default shall
have occurred and be continuing at the date of issuance or incurrence
thereof or would result therefrom.
(B) SALES OF ASSETS. Neither the Borrower nor any of its
Subsidiaries shall sell, assign, transfer, lease, convey or otherwise
dispose of any property, whether now owned or hereafter acquired, or any
income or profits therefrom, or enter into any agreement to do so, except:
(i) sales of inventory in the ordinary course of business;
(ii) the disposition in the ordinary course of business of
equipment that is obsolete, excess or no longer useful in the
Borrower's or its Subsidiaries' business;
(iii) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets if such transaction (a) is for
consideration consisting at least 90% of cash, (b) is for not less
than fair market value, and (c) when combined with all such other
transactions (each such transaction being valued at book value) (i)
during the immediately preceding twelve-month period, represents the
disposition of not greater than ten percent (10%) of the Borrower's
Consolidated Tangible Assets at the end of the fiscal year immediately
preceding that in which such transaction is proposed to be entered
into, and (ii) during the period from the Closing Date to the date of
such proposed transaction, represents the disposition of not greater
than twenty (20%) percent of the Borrower's Consolidated Tangible
Assets at the end of the fiscal year immediately preceding that in
which such transaction is proposed to be entered into; and
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(iv) sales of real estate by Market Development Corporation in
the ordinary course of its business;
PROVIDED in each such case the Net Cash Proceeds are applied in accordance
with the provisions of SECTION 2.4(B)(I), if applicable to such
transaction.
(C) LIENS. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on
or with respect to any of their respective property or assets except:
(i) Liens securing the Secured Obligations pursuant to the
Collateral Documents;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
(iv) purchase money Liens (including the interest of a lessor
under a Capitalized Lease and Liens to which any property is subject
at the time of the Borrower's acquisition thereof) securing Permitted
Purchase Money Indebtedness; PROVIDED that such Liens shall not apply
to any property of the Borrower or its Subsidiaries other than that
purchased or subject to such Capitalized Lease; and
(v) Liens on any real property leased pursuant to a Capitalized
Lease in connection with the closure and possible relocation of the
Borrower's facility in Plymouth, Michigan; PROVIDED that such Liens
shall not apply to any property of the Borrower or its Subsidiaries
other than that subject to such Capitalized Lease.
In addition, neither the Borrower nor any of its Subsidiaries shall become
a party to any agreement, note, indenture or other instrument, or take any
other action, which would prohibit the creation of a Lien on any of its
properties or other assets in favor of the Collateral Agent for the benefit
of itself and the Lenders, as collateral for the Obligations; PROVIDED that
any agreement, note, indenture or other instrument in connection with
Permitted Purchase Money Indebtedness (including Capitalized Leases) may
prohibit the creation of a Lien in favor of the Collateral Agent for the
benefit of itself and the Lenders on the items of property obtained with
the proceeds of such Permitted Purchase Money Indebtedness.
(D) INVESTMENTS. Except to the extent permitted pursuant to
PARAGRAPH (G) below, neither the Borrower nor any of its Subsidiaries shall
directly or indirectly make or own any Investment except:
(i) Investments in Cash Equivalents;
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(ii) Permitted Existing Investments in an amount not greater
than the amount thereof on the Closing Date;
(iii) Investments in trade receivables or received in connection
with the bankruptcy or reorganization of suppliers and customers and
in settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by
the Borrower and its Subsidiaries in the ordinary course of business;
PROVIDED (a) such deposit accounts are subject to a Collection Account
Agreement or (b) such deposit accounts are Permitted Sweep Accounts;
(v) Investments consisting of non-cash consideration from a sale,
assignment, transfer, lease, conveyance or other disposition of
property permitted by SECTION 7.3(B);
(vi) Investments constituting Permitted Acquisitions;
(vii) Investments consisting of intercompany loans from any
Subsidiary to the Borrower or any other Subsidiary permitted by
SECTION 7.3(A)(IX);
(viii) Investments consisting of loans from the Borrower or any
of its Subsidiaries to customers; PROVIDED that the aggregate
principal amount of Permitted Existing Investments consisting of loans
to customers and additional Investments made pursuant to this CLAUSE
(VIII) shall not at any time exceed $10,000,000; and PROVIDED, FURTHER
that all promissory notes in connection therewith shall constitute
"Pledged Debt" (as defined in the Security Agreement) and shall be
delivered to the Collateral Agent to the extent required by the terms
of the Security Agreement;
(ix) Investments by the Borrower or any of its Subsidiaries in
any Subsidiaries which are also Guarantors, in connection with which
Guarantor Collateral Documents have been entered into and all of the
Capital Stock of which has been pledged to the Collateral Agent
pursuant to a Pledge Agreement; and
(x) Investments in addition to those referred to elsewhere in
this SECTION 7.3(D) in an amount which when aggregated with all
payments in connection with redemptions made pursuant to SECTION
7.3(F)(V) do not to exceed $5,000,000 in the aggregate at any time
outstanding;
PROVIDED, HOWEVER, that the Investments described in CLAUSES (VIII), (IX)
and (X) above shall not be permitted if either a Default or an Unmatured
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Default shall have occurred and be continuing on the date thereof or would
result therefrom.
(E) CONTINGENT OBLIGATIONS. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create or become or be liable
with respect to any Contingent Obligation, except:
(i) recourse obligations resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(ii) Permitted Existing Contingent Obligations;
(iii) obligations, warranties, and indemnities, not relating to
Indebtedness of any Person, which have been or are undertaken or made
in the ordinary course of business and not for the benefit of or in
favor of an Affiliate of the Borrower or such Subsidiary;
(iv) Contingent Obligations with respect to surety, appeal and
performance bonds obtained by the Borrower or any Subsidiary in the
ordinary course of business;
(v) Contingent Obligations with respect to Indebtedness of any
customer of the Borrower or any of its Subsidiaries ("CUSTOMER LOAN
GUARANTIES"); PROVIDED, HOWEVER, that the Contingent Obligations under
this clause (v) shall not be permitted if either a Default or an
Unmatured Default shall have occurred and be continuing at the date of
incurrence thereof or would result therefrom;
(vi) Contingent Obligations with respect to lease obligations of
any customer of the Borrower or any of its Subsidiaries ("CUSTOMER
LEASE GUARANTIES"); PROVIDED, that the annual rental under leases of
such customers which are guarantied pursuant to the terms of this
SECTION 7.3(E)(VI) when aggregated with the annual rental under leases
of customers which are guarantied pursuant to the terms of SECTION
7.3(E)(II) above shall not exceed $2,000,000; and
(vii) additional Contingent Obligations which do not exceed
$7,500,000 in the aggregate at any time.
(F) RESTRICTED PAYMENTS. Neither the Borrower nor any of its
Subsidiaries shall declare or make any Restricted Payment except:
(i) Restricted Payments consisting of cash dividends on the
Borrower's common stock from funds legally available for such purpose;
PROVIDED the aggregate amount of such cash dividends paid in any
twelve-month period shall not exceed $800,000 PROVIDED FURTHER THAT,
after taking into account the payment of any such dividends, the
Borrower remains in compliance with the Fixed Charge Coverage Ratio;
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(ii) Restricted Payments in connection with redemptions of the
Borrower's Capital Stock (from funds legally available for such
purpose) from customers of the Borrower and its Subsidiaries other
than Acquisition Redemptions; PROVIDED THAT the Net Redemption Amount
shall not exceed (A) $8,410,000 for the fiscal year ended on or about
March 31, 2000; (B) $1,200,000 for the fiscal year ended on or about
March 31, 2001 PLUS the "Permitted Carryover Amount" (as defined
below); (C) $1,200,000 for the fiscal year ended on or about March 31,
2002 PLUS the Permitted Carryover Amount, if any; and (D) the
Permitted Carryover amount, if any, for the fiscal year ended on or
about March 31, 2003 (redemptions made pursuant to this clause (ii)
being referred to as the "SCHEDULED REDEMPTIONS"); PROVIDED FURTHER
THAT, after taking into account the payment of any amount in
connection with such Schedule Redemptions, the Borrower remains in
compliance with the Fixed Charge Coverage Ratio;
(iii) in addition to Scheduled Redemptions and Acquisition
Redemptions, Restricted Payments in connection with redemptions of the
Borrower's Capital Stock (from funds legally available for such
purposes) from customers of the Borrower and its Subsidiaries;
PROVIDED THAT the aggregate amount paid in connection with such
additional redemptions pursuant to this CLAUSE (III) in any fiscal
year shall not exceed the Borrower's Excess Cash Flow for the
immediately preceding year MINUS the amount required to be prepaid to
the Lenders pursuant to SECTION 2.4(B)(I)(B);
(iv) Acquisition Redemptions provided any payments made in
connection with such Acquisition Redemptions are made on or prior to
the date that is one year following the date of the consummation of
the applicable Permitted Acquisition; and
(v) in addition to Scheduled Redemptions, Acquisition
Redemptions, and redemptions permitted pursuant to CLAUSE (III) above,
additional Restricted Payments in connection with redemptions of the
Borrower's Capital Stock (from funds legally available for such
purposes from customers) of the Borrower and its Subsidiaries;
PROVIDED such redemptions shall be permitted only to the extent that
the amount paid in connection therewith would be permitted as an
Investment pursuant to SECTION 7.3(D)(X);
PROVIDED, HOWEVER, that the Restricted Payments under clauses (i) through
(v) above shall not be permitted if either a Default or an Unmatured
Default shall have occurred and be continuing at the date of declaration or
payment thereof or would result therefrom. For purposes of clause (ii)
above, the "PERMITTED CARRYOVER AMOUNT" for any period shall be equal to
the dollar amount specified for permitted Net Redemption Amounts identified
in clauses (A), (B) or (C), as applicable for the prior year (in the case
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of clauses (B) and (C), as such amount may be increased as a result of any
Permitted Carryover Amount being added thereto) MINUS the actual Net
Redemption Amount for such year.
(G) CONDUCT OF BUSINESS; SUBSIDIARIES; ACQUISITIONS. (i) Neither
the Borrower nor any of its Subsidiaries shall engage in any business other
than the businesses engaged in by the Borrower on the Closing Date and any
business or activities which are substantially similar, related or
incidental thereto.
(ii) The Borrower may create, acquire and/or capitalize any
Subsidiary (a "NEW SUBSIDIARY") after the date hereof pursuant to any
transaction that is permitted by or not otherwise prohibited by this
Agreement; PROVIDED that upon the creation or acquisition of each New
Subsidiary, the Borrower shall cause each New Subsidiary that is a Material
Subsidiary to promptly deliver to the Collateral Agent the documents,
instruments and agreements required pursuant to SECTION 7.2(N), and all New
Subsidiaries that are Material Subsidiaries shall be Controlled
Subsidiaries. After the formation or acquisition of any New Subsidiary
permitted hereunder, if requested by the Agent, the Borrower shall provide
a supplement to SCHEDULE 6.8 to this Agreement.
(iii) The Borrower shall not and shall not permit any of its
Subsidiaries to make any Acquisitions (including the Specified
Acquisitions), other than Acquisitions meeting all of the following
requirements (each such Acquisition constituting a "PERMITTED
ACQUISITION"):
(a) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of
any Indebtedness in connection therewith;
(b) in the case of an Acquisition of Equity Interests of an
entity, such Acquisition shall be of greater than eighty percent (80%)
of the Equity Interests of such entity, and 100% of the Capital Stock
of such entity owned by the Borrower or any of its Subsidiaries shall
be pledged pursuant to a Pledge Agreement;
(c) the businesses being acquired shall be substantially similar,
related or incidental to the businesses or activities engaged in by
the Borrower and its Subsidiaries on the Closing Date; and
(d) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis;
(e) after giving effect to such Acquisition, the representations
and warranties set forth in ARTICLE VI hereof shall be true and
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correct in all material respects on and as of the date of such
Acquisition with the same effect as though made on and as of such
date;
(f) prior to each such Acquisition, the Borrower shall deliver to
the Agents a documentation, information and certification package in
form and substance acceptable to the Agents, including, without
limitation:
(1) a certificate from one of the Authorized Officers,
calculating the Leverage Ratio as of the closing of such
Acquisition;
(2) all of the Collateral Documents necessary for the
perfection of a first priority security interest in all of the
assets to be acquired or the Equity Interests and assets of the
entity to be acquired together with opinions of counsel, in each
case in form and substance reasonably acceptable to the Agents;
(3) a Guaranty Supplement if required pursuant to the terms
of this Agreement
(4) the financial statements of the target entity together
with any PRO FORMA financial statements, projections, forecasts
and budgets prepared by the Borrower in connection therewith;
(5) a copy of the acquisition agreement for such
Acquisition, together with drafts of the material schedules
thereto;
(6) a copy of all documents, instruments and agreements with
respect to any Indebtedness to be incurred or assumed in
connection with such Acquisition; and
(7) such other documents or information as shall be
reasonably requested by any Agent or any Lender;
(g) prior to each such Acquisition, the Borrower shall deliver
to the Agents a certificate from one of the Authorized Officers,
demonstrating to the satisfaction of the Agents and the Required
Lenders that after giving effect to such Acquisition and the
incurrence of any Indebtedness permitted by SECTION 7.3(A) in
connection therewith, on a PRO FORMA basis using historical financial
statements obtained from the seller, broken down by fiscal quarter in
the Borrower's reasonable judgment (the amounts from which shall be
unadjusted unless adjustments thereto shall have been approved in
writing by the Agents), as if the Acquisition and such incurrence of
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Indebtedness had occurred on the first day of the twelve-month period
ending on the last day of the Borrower's most recently completed
fiscal quarter, the Borrower would have been in compliance with the
financial covenants in SECTION 7.4 and not otherwise in Default; and
(h) the written consent of the Required Lenders shall have been
obtained in connection with any Acquisition (other than the Specified
Acquisitions) if the aggregate purchase price (including, without
limitation or duplication, cash, stock, Indebtedness assumed (net of
any cash acquired), amounts to be paid in connection with redemptions
of the Borrower's Capital Stock from the sellers, contingent earn-outs
or other similar contingent purchase price payments, and transaction
related contractual payments, including amounts payable under non-
compete, consulting or similar agreements) (valuing all non-cash
consideration at Fair Value) is equal to or greater than $15,000,000.
With respect to any Acquisition where consent of the Required Lenders is
necessary pursuant to clause (h) above, the Borrower shall (a) have
obtained (and shall have based the various calculations set forth in this
Agreement on) historical reviewed unaudited financial statements (where no
audited financial statements are available) for the target for a period of
not less than two years, obtained from the seller or provided by
independent certified public accountants retained for the purposes of such
Acquisition, broken down by fiscal quarter in the Borrower's reasonable
judgment, copies of which shall be provided to the Agents and the Lenders
or (b) in connection with any Acquisition where the Borrower is required by
the Commission's regulations to base its pro forma calculations on audited
financial statements for the target for any period (even though the
Commission's regulations may not require that such audit be conducted prior
to the closing of the applicable Acquisition), have obtained audited
financial statements for the target (and shall have based the various
calculations set forth in this Agreement on) historical audited financial
statements for the target for a period of not less than two years, obtained
from the seller or provided by independent certified public accountants
retained for the purpose of such Acquisition, broken down by fiscal quarter
in the Borrower's reasonable judgment, copies of which shall be provided to
the Agents and the Lenders.
(H) TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES. Except as set
forth on SCHEDULE 7.3(H), neither the Borrower nor any of its Subsidiaries
shall directly or indirectly enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of
any property or the rendering of any service) with any holder or holders of
any of the Equity Interests of the Borrower, or with any Affiliate of the
Borrower which is not its Subsidiary, on terms that are less favorable to
the Borrower or any of its Subsidiaries, as applicable, than those that
might be obtained in an arm's length transaction at the time from Persons
who are not such a holder or Affiliate.
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(I) RESTRICTION ON FUNDAMENTAL CHANGES. Neither the Borrower nor any
of its Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution),
or convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or substantially all of the
Borrower's or any such Subsidiary's business or property, whether now or
hereafter acquired, except transactions permitted under SECTIONS 7.3(B) or
7.3(G).
(J) SALES AND LEASEBACKS. Except for a sale-leaseback transaction in
connection with the closure and possible relocation of the Borrower's
facility in Plymouth, Michigan, neither the Borrower nor any of its
Subsidiaries shall become liable, directly, by assumption or by Contingent
Obligation, with respect to any lease, whether an operating lease or a
Capitalized Lease, of any property (whether real or personal or mixed) (i)
which it or one of its Subsidiaries sold or transferred or is to sell or
transfer to any other Person, or (ii) which it or one of its Subsidiaries
intends to use for substantially the same purposes as any other property
which has been or is to be sold or transferred by it or one of its
Subsidiaries to any other Person in connection with such lease, unless in
either case the sale involved is not prohibited under SECTION 7.3(B) and
the lease involved is not prohibited under SECTION 7.3(A).
(K) MARGIN REGULATIONS. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA. The Borrower shall not
(i) engage, or permit any of its Subsidiaries to engage, in any
material prohibited transaction described in Sections 406 of ERISA or
4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from
the DOL;
(ii) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with respect to
any Benefit Plan unless waived pursuant to Section 412(d) of the Code;
(iii) fail, or permit any Controlled Group member to fail, to
pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan under
circumstances which could reasonably be expected to result in the
imposition of a Lien on the assets or properties of the Borrower or
any Subsidiary (including any lien arising under Section 412(n) of the
Code);
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(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any material
liability of the Borrower or any Controlled Group member under
Title IV of ERISA;
(v) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any Controlled Group member
may be required to make under any agreement relating to such
Multiemployer Plan (except as permitted by Section 4218(2) of ERISA),
or any law pertaining thereto;
(vi) fail, or permit any Controlled Group member to fail, to pay
any required installment or any other payment required under
Section 412 of the Code on or before the due date for such installment
or other payment under circumstances which could reasonably be
expected to result in the imposition of a Lien on the assets or
properties of the Borrower or any Subsidiary (including any lien
arising under Section 412(n) of the Code); or
(vii) amend, or permit any Controlled Group member to amend, a
Plan resulting in an increase in current liability for the plan year
such that the Borrower or any Controlled Group member is required to
provide security to such Plan under Section 401(a)(29) of the Code.
For purposes of this SECTION 7.3(L), "material" means any transaction,
noncompliance or other basis for liability described in SECTION 7.3(L)
which could reasonably be expected to subject the Borrower or any of its
Subsidiaries to liability, individually or in the aggregate with all other
liabilities under SECTION 7.3(L), in excess of $7,500,000.
(M) CORPORATE DOCUMENTS. Other than in connection with the issuance
of Permitted Hybrid Securities, neither the Borrower nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents as in effect on
the date hereof in any manner adverse to the interests of the Lenders,
without the prior written consent of the Required Lenders. Nothing herein
shall prevent any such changes which increases the number of authorized
shares of common stock of the Borrower.
(N) FISCAL YEAR. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes
from a period consisting of the 52-week period or 53-week period, as
applicable, ending on the last Saturday of March of each year.
(O) SUBSIDIARY COVENANTS. The Borrower will not, and will not permit
any Subsidiary to, create or otherwise cause to become effective any
consensual encumbrance or restriction of any kind on the ability of any
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Subsidiary to pay dividends or make any other distribution on its stock, or
make any other Restricted Payment, pay any Indebtedness or other Obligation
owed to the Borrower or any other Subsidiary, make loans or advances or
other Investments in the Borrower or any other Subsidiary, or sell,
transfer or otherwise convey any of its property to the Borrower or any
other Subsidiary.
(P) HEDGING OBLIGATIONS. The Borrower shall not and shall not permit
any of its Subsidiaries to enter into any interest rate, commodity or
foreign currency exchange, swap, collar, cap or similar agreements
evidencing Hedging Obligations, other than interest rate, foreign currency
or commodity exchange, swap, collar, cap or similar agreements entered into
by the Borrower pursuant to which the Borrower has hedged its actual
interest rate, foreign currency or commodity exposure. Such permitted
hedging agreements entered into by the Borrower and any Lender or any
affiliate of any Lender are sometimes referred to herein as "INTEREST RATE
AGREEMENTS."
(Q) NON-GUARANTOR SUBSIDIARIES. The Borrower shall not permit
Subsidiaries which are not Guarantors, the Capital Stock of which is not
pledged or the assets of which are not subject to a Security Agreement and
other Collateral Documents to represent five percent (5%) or more of the
consolidated EBITDA of the Borrower and its Subsidiaries.
(R) CHANGE OF DEPOSIT ACCOUNTS. The Borrower shall not and shall not
permit its Subsidiaries to establish or maintain any deposit account with
any bank or other financial institution other than (i) those which have
entered into a Collection Account Agreement in form and substance
acceptable to the Collateral Agent and (ii) Permitted Sweep Accounts.
(S) SUBORDINATED INDEBTEDNESS. The Borrower shall not and shall not
permit any of its Subsidiaries to amend, supplement or modify the terms of
any Subordinated Indebtedness, or make any payment required as a result of
an amendment or change thereto, other than amendments, supplements or
modifications which (1) (a) decrease the rate of interest payable on such
Subordinated Indebtedness, (b) provide for the payment in kind in lieu of
cash of any portion of the interest on the Subordinated Indebtedness, (c)
provide for the extension of the maturity date with respect to any
principal or interest payment to be made under the instruments evidencing
such Subordinated Indebtedness, (d) provide more flexibility to the
Borrower or its Subsidiaries in connection with any covenants or (e) waive
any defaults existing in connection with the Subordinated Indebtedness and
(2) do not adversely affect in any respect the interests of the Agents or
any Lender.
(T) ISSUANCE OF EQUITY INTERESTS. The Borrower shall not issue any
Equity Interests if as a result of such issuance a Change of Control shall
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occur. None of the Borrower's Subsidiaries shall issue any Equity
Interests other than to the Borrower and all of which shall be subject to
an applicable Pledge Agreement.
7.4 FINANCIAL COVENANTS. The Borrower shall comply with the
following:
(A) MINIMUM FIXED CHARGE COVERAGE RATIO. The Borrower shall maintain
a ratio ("FIXED CHARGE COVERAGE RATIO") of (i) the sum of the amounts of:
(a) EBITDA; MINUS (b) Capital Expenditures to (ii) the sum of the amounts
of: (a) Interest Expense; PLUS (b) scheduled amortization of the principal
portion of the Term Loans and scheduled amortization of the principal
portion of all other Indebtedness for borrowed money of the Borrower; PLUS
(c) cash taxes paid by the Borrower and its consolidated Subsidiaries; PLUS
(d) Restricted Payments (other than Acquisition Redemptions and Restricted
Payments made pursuant to CLAUSE (III) of SECTION 7.3(F)) made during such
period; PLUS (e) any payments made by the Borrower or any of its
Subsidiaries directly or indirectly pursuant to any Customer Loan
Guaranties during such period; and PLUS (f) any payments made by the
Borrower or any of its Subsidiaries directly or indirectly pursuant to any
Customer Lease Guaranties of at least 1.10 to 1.00. In each case, the
Fixed Charge Coverage Ratio shall be determined as of the last day of each
fiscal quarter for the four fiscal quarter period ending on such day,
calculated, with respect to Permitted Acquisitions, on a PRO FORMA basis
using historical financial statements obtained from the seller, broken down
by fiscal quarter in the Borrower's reasonable judgment (the amounts from
which shall be unadjusted unless adjustments thereto shall have been
approved in writing by the Agents).
(B) MAXIMUM LEVERAGE RATIO. The Borrower shall not permit the ratio
(the "LEVERAGE RATIO") of (i) Total Debt to (ii) EBITDA to be greater than
the ratio set forth below at the end of the fiscal quarter ending on the
corresponding date set forth below:
<TABLE>
<CAPTION>
QUARTER(S) ENDING RATIO
----------------- -----
<S> <C> <C>
March 31, 1999 through
March 31, 2001 4.00 to 1.00
June 30, 2001 through
March 31, 2002 3.50 to 1.00
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June 30, 2002 through
March 31, 2003 3.00 to 1.00
Each quarter thereafter 2.50 to 1.00
</TABLE>
The Leverage Ratio shall be calculated, in each case, determined as of the
last day of each fiscal quarter based upon (a) for Total Debt, Total Debt
as of the last day of each such fiscal quarter; and (b) for EBITDA, the
actual amount for the four-quarter period ending on such day, calculated,
with respect to Permitted Acquisitions, on a PRO FORMA basis using
historical financial statements obtained from the seller, broken down by
fiscal quarter in the Borrower's reasonable judgment (the amounts from
which shall be unadjusted unless adjustments thereto shall have been
approved in writing by the Agents).
(C) MAXIMUM LEASE ADJUSTED LEVERAGE RATIO. The Borrower shall not
permit the ratio (the "LEASE ADJUSTED LEVERAGE RATIO") of (i) the sum of
(a) Total Debt PLUS (b) an amount equal to eight (8) times Rentals for the
four-quarter period ending on such day to (ii) the sum of (a) EBITDA PLUS
(b) Rentals to be greater than the ratio set forth below at the end of the
fiscal quarter ending on the corresponding date set forth below:
<TABLE>
<CAPTION>
QUARTER(S) ENDING RATIO
----------------- -----
<S> <C> <C>
March 31, 1999 through
March 31, 2001 5.00 to 1.00
June 30, 2001 through
March 31, 2002 4.75 to 1.00
June 30, 2002 through
March 31, 2003 4.25 to 1.00
Each quarter thereafter 3.75 to 1.00
</TABLE>
The Lease Adjusted Leverage Ratio shall be calculated, in each case,
determined as of the last day of each fiscal quarter based upon (a) for
Total Debt, Total Debt as of the last day of each such fiscal quarter; and
(b) for EBITDA and Rentals, the actual amount for the four-quarter period
ending on such day, calculated, with respect to Permitted Acquisitions, on
a PRO FORMA basis using historical financial statements obtained from the
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seller, broken down by fiscal quarter in the Borrower's reasonable judgment
(the amounts from which shall be unadjusted unless adjustments thereto
shall have been approved in writing by the Agents).
(D) INTEREST EXPENSE COVERAGE RATIO. The Borrower shall maintain a
ratio (the "INTEREST EXPENSE COVERAGE RATIO") of (i) EBITDA to (ii) cash
Interest Expense during each four fiscal quarter period ending on the date
described below of at least:
(i) 2.50 to 1.00 for each fiscal quarter for the period commencing
with the fiscal quarter ending March 31, 1999 through the fiscal
quarter ending December 31, 1999;
(ii) 3.25 to 1.00 for each fiscal quarter for the period commencing
with the fiscal quarter ending March 31, 2000 through the fiscal
quarter ending December 31, 2000; and
(iii) 3.50 to 1.00 for each fiscal quarter thereafter.
In each case, the Interest Expense Coverage Ratio shall be determined as of
the last day of each fiscal quarter described above for the four fiscal
quarter period ending on such day, calculated, with respect to Permitted
Acquisitions, on a PRO FORMA basis using historical financial statements
obtained from the seller, broken down by fiscal quarter in the Borrower's
reasonable judgment (the amounts from which shall be unadjusted unless
adjustments thereto shall have been approved in writing by the Agents).
ARTICLE VIII: DEFAULTS
8.1 DEFAULTS. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower shall (i) fail
to pay when due any of the Obligations consisting of principal with respect
to the Loans or (ii) shall fail to pay within three (3) Business Days of
the date when due any of the other Obligations under this Agreement or the
other Loan Documents.
(B) BREACH OF CERTAIN COVENANTS. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation
binding on the Borrower under:
(i) SECTION 7.1(C) through and including 7.1(I), 7.2(B) or 7.2(F)
and such failure shall continue unremedied for ten (10) Business Days;
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(ii) SECTIONS 7.1(A), 7.1(B), 7.2(A), 7.2(C), 7.2(D), 7.2(E) and
7.2(G) through and including 7.2(Q) and such failure shall continue
unremedied for five (5) Business Days; or
(iii) SECTION 7.3 or 7.4.
(C) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made or deemed made by the Borrower to any Agent, any Arranger or
any Lender herein or by the Borrower or any of its Subsidiaries in any of
the other Loan Documents or in any statement or certificate at any time
given by any such Person pursuant to any of the Loan Documents shall be
false or misleading in any material respect on the date as of which made
(or deemed made).
(D) OTHER DEFAULTS. The Borrower shall default in the performance of
or compliance with any term contained in this Agreement (other than as
covered by PARAGRAPHS (A), (B) or (C) of this SECTION 8.1), or the Borrower
or any of its Subsidiaries shall default in the performance of or
compliance with any term contained in any of the other Loan Documents, and
such default shall continue for thirty (30) days after the occurrence
thereof.
(E) DEFAULT AS TO OTHER INDEBTEDNESS. The Borrower or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with
respect to any Indebtedness the outstanding principal amount of which
Indebtedness is in excess of $5,000,000; or any breach, default or event of
default shall occur, or any other condition shall exist under any
instrument, agreement or indenture pertaining to any such Indebtedness, if
the effect thereof is to cause an acceleration, mandatory redemption, a
requirement that the Borrower offer to purchase such Indebtedness or other
required repurchase of such Indebtedness, or permit the holder(s) of such
Indebtedness to accelerate the maturity of any such Indebtedness or require
a redemption or other repurchase of such Indebtedness; or any such
Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or otherwise
repurchased by the Borrower or any of its Subsidiaries (other than by a
regularly scheduled required prepayment) prior to the stated maturity
thereof.
(F) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case shall be commenced against the Borrower
or any of the Borrower's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within ninety (90) days after
commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
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Borrower or any of the Borrower's Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now
or hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Borrower or any of the Borrower's Subsidiaries or over all or a
substantial part of the property of the Borrower or any of the
Borrower's Subsidiaries shall be entered; or an interim receiver,
trustee or other custodian of the Borrower or any of the Borrower's
Subsidiaries or of all or a substantial part of the property of the
Borrower or any of the Borrower's Subsidiaries shall be appointed or a
warrant of attachment, execution or similar process against any
substantial part of the property of the Borrower or any of the
Borrower's Subsidiaries shall be issued and any such event shall not
be stayed, dismissed, bonded or discharged within ninety (90) days
after entry, appointment or issuance.
(G) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The Borrower
or any of the Borrower's Subsidiaries shall (i) commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a
voluntary case, under any such law, (iii) consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property, (iv) make any assignment for the benefit
of creditors or (v) take any corporate action to authorize any of the
foregoing.
(H) JUDGMENTS AND ATTACHMENTS. Any money judgment(s) (other than a
money judgment covered by insurance as to which the insurance company has
not disclaimed or reserved the right to disclaim coverage), writ or warrant
of attachment, or similar process against the Borrower or any of its
Subsidiaries or any of their respective assets involving in any single case
or in the aggregate an amount in excess of $7,500,000 is or are entered and
shall remain undischarged, unvacated, unbonded or unstayed for a period of
sixty (60) days or in any event later than fifteen (15) days prior to the
date of any proposed sale thereunder.
(I) DISSOLUTION. Any order, judgment or decree shall be entered
against the Borrower decreeing its involuntary dissolution or split up and
such order shall remain undischarged and unstayed for a period in excess of
sixty (60) days; or the Borrower shall otherwise dissolve or cease to exist
except as specifically permitted by this Agreement.
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(J) LOAN DOCUMENTS. At any time, for any reason, any Loan Document
as a whole that materially affects the ability of any Agent or any of the
Lenders to enforce the Obligations ceases to be in full force and effect or
the Borrower or any of the Borrower's Subsidiaries party thereto seeks to
repudiate its obligations thereunder.
(K) TERMINATION EVENT. Any Termination Event occurs which the
Required Lenders believe is reasonably likely to subject the Borrower or
any Subsidiary to liability, individually or in the aggregate, in excess of
$7,500,000.
(L) WAIVER OF MINIMUM FUNDING STANDARD. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the
minimum funding standards of Section 412(a) of the Code and any Lender
believes the substantial business hardship upon which the application for
the waiver is based could reasonably be expected to subject either the
Borrower or any Controlled Group member to liability, individually or in
the aggregate, in excess of $7,500,000.
(M) CHANGE OF CONTROL. A Change of Control shall occur.
(N) INTEREST RATE AGREEMENTS. Nonpayment by the Borrower of any
obligation under any Interest Rate Agreement or the breach by the Borrower
of any term, provision or condition contained in any such Interest Rate
Agreement.
(O) ENVIRONMENTAL MATTERS. The Borrower or any of its Subsidiaries
shall be the subject of any proceeding or investigation pertaining to (i)
the Release by the Borrower or any of its Subsidiaries of any Contaminant
into the environment, (ii) the liability of the Borrower or any of its
Subsidiaries arising from the Release by any other Person of any
Contaminant into the environment, or (iii) any violation of any
Environmental, Health or Safety Requirements of Law which by the Borrower
or any of its Subsidiaries, which, in any case, has or is reasonably likely
to subject the Borrower to liability in excess of $7,500,000.
(P) GUARANTOR DEFAULT OR REVOCATION. Any Guaranty shall fail to
remain in full force or effect or any action shall be taken by the Borrower
or any Subsidiary to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply
with any of the terms or provisions of any Guaranty to which it is a party,
or any Guarantor denies that it has any further liability under any
Guaranty to which it is a party, or gives notice to such effect.
(Q) CUSTOMER DEFAULTS. With respect to Customer Lease Guaranties and
Customer Loan Guaranties, the aggregate amount after the Closing Date of
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(i) payments made by the Borrower and its Subsidiaries and (ii) amounts for
which payment has been demanded or otherwise sought from the Borrower and
its Subsidiaries exceeds $5,000,000.
(R) The occurrence of any event set forth in the separate disclosure
letter from the Borrower and addressed to the Lenders dated of even date
herewith.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with SECTION 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND
REMEDIES
9.1 TERMINATION OF COMMITMENTS; ACCELERATION. If any Default
described in SECTION 8.1(F) or 8.1(G) occurs with respect to the Borrower,
the obligations of the Lenders to make Loans hereunder and the obligation
of the Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of any Agent or any
Lender. If any other Default occurs, (a) the Lenders with Revolving Loan
Pro Rata Shares equal to or greater than sixty-six and two-thirds percent
(66-2/3%) may terminate or suspend the obligations of the Lenders to make
Loans hereunder and the obligation of the Issuing Banks to issue Letters of
Credit hereunder, (b) the Lenders with Acquisition Loan Pro Rata Shares
equal to or greater than sixty-six and two-thirds percent (66-2/3%) may
terminate or suspend the obligations of the Lenders to make Acquisition
Facility Loans hereunder and/or (c) the Lenders with Pro Rata Shares equal
to or greater than sixty-six and two-thirds percent (66-2/3%) may declare
the Obligations to be due and payable, or both, whereupon the Obligations
shall become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which the Borrower expressly waives.
9.2 DEFAULTING LENDER. In the event that any Lender fails to fund
its Tranche A Pro Rata Share, Tranche B Pro Rata Share, Acquisition Loan
Pro Rata Share and/or Revolving Loan Pro Rata Share, as applicable, of any
Advance requested or deemed requested by the Borrower (or requested by an
Issuing Bank or the Swing Line Bank in connection with the participation in
Letters of Credit or Swing Line Loans), which such Lender is obligated to
fund under the terms of this Agreement (the funded portion of such Advance
being hereinafter referred to as a "NON PRO RATA LOAN"), until the earlier
of such Lender's cure of such failure and the termination of the Revolving
Loan Commitments, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be applied
to such Lender's share of all other Obligations pursuant to the terms of
this Agreement shall be advanced to the Borrower (or the Issuing Bank or
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Swing Line Bank, as applicable) by the Administrative Agent on behalf of
such Lender to cure, in full or in part, such failure by such Lender, but
shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. Notwithstanding anything in this
Agreement to the contrary:
(i) the foregoing provisions of this SECTION 9.2 shall
apply only with respect to the proceeds of payments of
Obligations and shall not affect the conversion or continuation
of Loans pursuant to SECTION 2.9;
(ii) any such Lender shall be deemed to have cured its
failure to fund its Tranche A Pro Rata Share, Tranche B Pro Rata
Share, Revolving Loan Pro Rata Share or Acquisition Loan Pro Rata
Share, as applicable, of any Advance at such time as an amount
equal to such Lender's original Tranche A Pro Rata Share,
Tranche B Pro Rata Share, Revolving Loan Pro Rata Share or
Acquisition Loan Pro Rata Share, as applicable, of the requested
principal portion of such Advance is fully funded to the Borrower
(or Issuing Bank or Swing Line Bank, as applicable), whether made
by such Lender itself or by operation of the terms of this
SECTION 9.2, and whether or not the Non Pro Rata Loan with
respect thereto has been repaid, converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or
in part, any such Lender's failure to fund its Tranche A Pro Rata
Share, Tranche B Pro Rata Share, Revolving Loan Pro Rata Share
and/or Acquisition Loan Pro Rata Share, as applicable, of any
Advance ("CURE LOANS") shall bear interest at the rate applicable
to Floating Rate Loans in effect from time to time, and for all
other purposes of this Agreement shall be treated as if they were
Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or
is continuing, and notwithstanding the instructions of the
Borrower as to its desired application, all repayments of
principal which, in accordance with the other terms of this
Agreement, would be applied to the outstanding Floating Rate
Loans shall be applied FIRST, ratably to all Floating Rate Loans
constituting Non Pro Rata Loans, SECOND, ratably to Floating Rate
Loans other than those constituting Non Pro Rata Loans or Cure
Loans and, THIRD, ratably to Floating Rate Loans constituting
Cure Loans;
(v) for so long as and until the earlier of any such
Lender's cure of the failure to fund its Tranche A Pro Rata
Share, Tranche B Pro Rata Share, Revolving Loan Pro Rata Share or
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Acquisition Loan Pro Rata Share, as applicable, of any Advance
and the termination of the Revolving Loan Commitments, the term
"Required Lenders" for purposes of this Agreement shall mean
Lenders (excluding all Lenders whose failure to fund their
respective pro rata shares of such Advance have not been so
cured) whose Tranche A Pro Rata Shares, Tranche B Pro Rata
Shares, Revolving Loan Pro Rata Shares and/or Acquisition Loan
Pro Rata Shares, as applicable, represent equal to or greater
than sixty-six and two-thirds percent (66-2/3%) of the aggregate
Pro Rata Shares of such Lenders; and
(vi) for so long as and until any such Lender's failure to
fund its Revolving Loan Pro Rata Share and/or Acquisition Loan
Pro Rata Share of any Advance is cured in accordance with SECTION
9.2(II), (A) such Lender shall not be entitled to any commitment
fees with respect to its Revolving Loan Commitment and
Acquisition Facility Commitment and (B) such Lender shall not be
entitled to any letter of credit fees, which commitment fees and
letter of credit fees shall accrue in favor of the Lenders which
have funded their respective Revolving Loan Pro Rata Share or
Acquisition Loan Pro Rata Share of such requested Advance, shall
be allocated among such performing Lenders ratably based upon
their relative Revolving Loan Commitments and Acquisition
Facility Commitments, and shall be calculated based upon the
average amount by which the aggregate Revolving Loan Commitments
and Acquisition Facility Commitments of such performing Lenders
exceeds the sum of (I) the outstanding principal amount of the
Loans owing to such performing Lenders, PLUS (II) the outstanding
Reimbursement Obligations owing to such performing Lenders, PLUS
(III) the aggregate participation interests of such performing
Lenders arising with respect to undrawn and outstanding Letters
of Credit and Swing Line Loans.
9.3 AMENDMENTS. Subject to the provisions of this ARTICLE IX, the
Required Lenders (or the Syndication Agent with the consent in writing of
the Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions
to the Loan Documents or changing in any manner the rights of the Lenders
or the Borrower hereunder or waiving any Default hereunder; PROVIDED,
HOWEVER, that no such supplemental agreement shall, without the consent of
each Lender affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date, the
Tranche A Term Loan Termination Date or the Tranche B Term Loan
Termination Date or any other date fixed for any payment of principal
of, or interest on, the Loans, the Reimbursement Obligations or any
fees or other amounts payable to such Lender (except with respect to
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(A) any modifications of the provisions relating to the amounts,
timing or application of prepayments of Loans and other Obligations,
which modifications shall require the approval only of the Required
Lenders; PROVIDED, HOWEVER, if such modifications would affect the
order of application of any mandatory prepayments to the Tranche B
Term Loans, such modifications shall also require the approval of
Lenders with Tranche B Pro Rata Shares equal to or greater than sixty-
six and two-thirds percent (66-2/3%); and (B) a waiver of the
application of the default rate of interest pursuant to SECTION 2.10
hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon (other than as a result of a change in the
definition of Leverage Ratio or any of the components thereof or the
method of calculation thereof).
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be
the applicable percentage in this Agreement to act on specified
matters or amend the definitions of "Tranche A Pro Rata Share",
"Tranche B Pro Rata Share", "Acquisition Loan Pro Rata Share",
"Revolving Loan Pro Rata Share" or "Pro Rata Share".
(iv) Increase the amount of any Commitment of any Lender
hereunder or increase any Lender's Tranche A Pro Rata Share, Tranche B
Pro Rata Share, Revolving Loan Pro Rata Share, Acquisition Loan Pro
Rata Share or Pro Rata Share.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) Release all or substantially all of the Collateral.
(vii) Amend this SECTION 9.3.
No amendment of any provision of this Agreement relating to any Agent shall
be effective without the written consent of such Agent. No amendment of
any provision of this Agreement relating to the Swing Line Loans shall be
effective without the written consent of the Swing Line Bank. The
Administrative Agent may waive payment of the fee required under SECTION
13.3(B) without obtaining the consent of any of the Lenders.
9.4 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or
any Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
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notwithstanding the existence of a Default or the inability of the Borrower
to satisfy the conditions precedent to such Loan or issuance of such Letter
of Credit shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to SECTION 9.3, and then only to the extent in
such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available
to the Agents and the Lenders until the Obligations have been paid in full.
ARTICLE X: GENERAL PROVISIONS
10.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties
of the Borrower contained in this Agreement shall survive delivery of the
Notes and the making of the Loans herein contemplated.
10.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend
credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
10.3 PERFORMANCE OF OBLIGATIONS. The Borrower agrees that the Agents
may, but shall have no obligation, after the occurrence and during the
continuance of a Default, to make any other payment or perform any act
required of the Borrower under any Loan Document. The Agents shall use
reasonable efforts to give the Borrower notice of any action taken under
this SECTION 10.3 prior to the taking of such action or promptly thereafter
provided the failure to give such notice shall not affect the Borrower's
obligations in respect thereof. The Borrower agrees to pay the applicable
Agent, upon demand, the principal amount of all funds advanced by such
Agent under this SECTION 10.3, together with interest thereon at the rate
from time to time applicable to Revolving Loans that are Floating Rate
Loans from the date of such advance until the outstanding principal balance
thereof is paid in full. If the Borrower fails to make payment in respect
of any such advance under this SECTION 10.3 within one (1) Business Day
after the date the Borrower receives written demand therefor from the
applicable Agent, such Agent shall promptly notify each Lender and each
Lender agrees that it shall thereupon make available to such Agent, in
Dollars in immediately available funds, the amount equal to such Lender's
Pro Rata Share of such advance. If such funds are not made available to
such Agent by such Lender within one (1) Business Day after the applicable
Agent's demand therefor, the applicable Agent will be entitled to recover
any such amount from such Lender together with interest thereon at the
Federal Funds Effective Rate for each day during the period commencing on
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the date of such demand and ending on the date such amount is received.
The failure of any Lender to make available to the applicable Agent its Pro
Rata Share of any such unreimbursed advance under this SECTION 10.3 shall
neither relieve any other Lender of its obligation hereunder to make
available to such Agent such other Lender's Pro Rata Share of such advance
on the date such payment is to be made nor increase the obligation of any
other Lender to make such payment to the applicable Agent. All outstanding
principal of, and interest on, advances made under this SECTION 10.3 shall
constitute Obligations.
10.4 HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of
any of the provisions of the Loan Documents.
10.5 ENTIRE AGREEMENT. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agents and the Lenders
and supersede all prior agreements and understandings among the Borrower,
the Agents and the Lenders relating to the subject matter thereof.
10.6 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other Lender (except to the
extent to which the Agents are authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve
any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors
and assigns.
10.7 EXPENSES; INDEMNIFICATION.
(A) EXPENSES. The Borrower shall reimburse the Agents and the
Arrangers for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time
charges of attorneys and paralegals for either Agent, which attorneys and
paralegals may be employees of such Agent) paid or incurred by either of
the Agents or Arrangers in connection with the preparation, negotiation,
execution, delivery, syndication (including the expenses identified in the
disclosure letter), review, amendment, modification, and administration of
the Loan Documents. The Borrower also agrees to reimburse the Agents, the
Arrangers and the Lenders for any costs, internal charges and out-of-pocket
expenses (including attorneys' and paralegals' fees and time charges of
attorneys and paralegals for any Agent, any Arranger or any Lender, which
attorneys and paralegals may be employees of an Agent, Arranger or Lender)
paid or incurred by any Agent, Arranger or Lender in connection with the
collection of the Obligations and enforcement of the Loan Documents. In
addition to expenses set forth above, the Borrower agrees to reimburse the
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Syndication Agent, promptly after the Syndication Agent's request therefor,
for each audit, or other business analysis performed by or for the benefit
of the Lenders in connection with this Agreement or the other Loan
Documents in an amount equal to the Syndication Agent's then customary
charges for each person employed to perform such audit or analysis, plus
all reasonable costs and expenses (including without limitation, travel
expenses) incurred by the Syndication Agent in the performance of such
audit or analysis; provided, however, that the Borrower shall not be
required to reimburse the Collateral Agent for more than one such audit and
analysis during any 12-month period conducted at a time when no Default has
occurred and is continuing. The Syndication Agent shall provide the
Borrower with a detailed statement of all reimbursements requested under
this SECTION 10.7(A).
(B) INDEMNITY. The Borrower further agrees to defend, protect,
indemnify, and hold harmless each and all of the Agents, Arrangers, Lenders
and each of their respective Affiliates, and each of such Person's
respective officers, directors, employees, attorneys and agents (including,
without limitation, those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in ARTICLE V)
(collectively, the "INDEMNITEES") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses or disbursements of any kind or nature whatsoever
(including, without limitation, the fees and disbursements of counsel for
such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees shall be designated a
party thereto), imposed on, incurred by, or asserted against such
Indemnitees in any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents, or any act, event
or transaction related or attendant thereto or to the making of the
Loans, and the issuance of and participation in Letters of Credit
hereunder, the making of or participation in Swing Line Loans, the
management of such Loans or Letters of Credit, the use or intended use
of the proceeds of the Loans or Letters of Credit hereunder, or any of
the other transactions contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating
to violation of any Environmental, Health or Safety Requirements of
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Law arising from or in connection with the past, present or future
operations of the Borrower, its Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property
of the Borrower or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the
Borrower or its Subsidiaries or the Release or threatened Release of
any Contaminant into the environment (collectively, the "INDEMNIFIED
MATTERS");
PROVIDED, HOWEVER, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from the willful misconduct or Gross Negligence of such Indemnitee,
in each case, as determined by the final non-appealed judgment of a court
of competent jurisdiction. If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrower shall contribute
the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Matters
incurred by the Indemnitees.
(C) WAIVER OF CERTAIN CLAIMS. The Borrower further agrees to assert
no claim against any of the Indemnitees on any theory of liability for
consequential, special, indirect, exemplary or punitive damages.
(D) SURVIVAL OF AGREEMENTS. The obligations and agreements of the
Borrower under this SECTION 10.7 shall survive the termination of this
Agreement.
10.8 NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agents with
sufficient counterparts so that the Agents may furnish one to each of the
Lenders.
10.9 ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement
Accounting Principles. If any changes in Agreement Accounting Principles
are hereafter required or permitted and are adopted by the Borrower with
the agreement of its independent public accountants and such changes result
in a change in the method of calculation of any of the financial covenants,
restrictions or standards herein or in the related definitions or terms
used therein ("ACCOUNTING CHANGES"), the parties hereto agree to enter into
negotiations, in good faith, in order to amend such provisions in a credit
neutral manner so as to reflect equitably such Accounting Changes with the
desired result that the criteria for evaluating the Borrower's financial
condition shall be the same after such changes as if such changes had not
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been made; provided, however, until such provisions are amended in a manner
reasonably satisfactory to the Agents and the Required Lenders, no
Accounting Change shall be given effect in such calculations and all
financial statements and reports required to be delivered hereunder shall
be prepared in accordance with Agreement Accounting Principles without
taking into account such Accounting Changes. In the event such amendment
is entered into with respect to any Accounting Changes, all references in
this Agreement to Agreement Accounting Principles shall mean generally
accepted accounting principles as of the date of such amendment.
10.10 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction
or the operation, enforceability, or validity of that provision in any
other jurisdiction, and to this end the provisions of all Loan Documents
are declared to be severable.
10.11 NONLIABILITY OF LENDERS. The relationship between the Borrower
and the Lenders and the Agents shall be solely that of borrower and lender.
Neither any Agent, any Arranger nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agents, any Arranger nor any
Lender undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the Borrower's
business or operations.
10.12 GOVERNING LAW. ANY DISPUTE BETWEEN THE BORROWER AND ANY AGENT
OR ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1
ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF
THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B),
EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED
IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
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CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES
BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT, OR ANY
LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY
IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL
JURISDICTION OVER THE BORROWER OR (2) REALIZE ON ANY SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR
OF SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE
COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO REALIZE ON ANY
SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
IN FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM
IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE
PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY
PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) SERVICE OF PROCESS. THE BORROWER WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND IRREVOCABLY APPOINTS CT CORPORATION, WITH OFFICES AT
208 SOUTH LASALLE STREET, CHICAGO, ILLINOIS 60604, AS THE BORROWER'S AGENT
FOR THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY ANY COURT.
NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT
OR ANY LENDER TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER
MANNER PERMITTED BY APPLICABLE LAW.
10.14 NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement
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shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Agreement.
10.15 SUBORDINATION OF INTERCOMPANY INDEBTEDNESS. The Borrower agrees
that any and all claims of the Borrower against any Guarantor, any endorser
or any other guarantor of all or any part of the Secured Obligations, or
against any of its properties, including, without limitation, pursuant to
any intercompany Indebtedness permitted under SECTION 7.3(A), shall be
subordinate and subject in right of payment to the prior payment, in full
and in cash, of all Secured Obligations. Notwithstanding any right of the
Borrower to ask, demand, sue for, take or receive any payment from any
Guarantor, all rights, liens and security interests of the Borrower,
whether now or hereafter arising and howsoever existing, in any assets of
any Guarantor shall be and are Subordinated to the rights, if any, of the
Lenders and the Agents in those assets. The Borrower shall have no right
to possession of any such asset or to foreclose upon any such asset,
whether by judicial action or otherwise, unless and until all of the
Secured Obligations shall have been paid in full in cash and satisfied and
all financing arrangements under this Agreement and the other Loan
Documents between the Borrower and the Agents and the Lenders have been
terminated. If, during the continuance of a Default, all or any part of
the assets of any Guarantor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of any Guarantor,
whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment
for the benefit of creditors or any other action or proceeding, then, and
in any such event, any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or
deliverable upon or with respect to any indebtedness of any Guarantor to
the Borrower, including, without limitation, pursuant to the any
intercompany Indebtedness permitted under SECTION 7.3(A) ("INTERCOMPANY
INDEBTEDNESS") shall be paid or delivered directly to the Administrative
Agent for application on any of the Secured Obligations, due or to become
due, until such Secured Obligations shall have first been paid in full in
cash and satisfied; PROVIDED, HOWEVER, ordinary course payments or
distributions made by any Guarantor to the Borrower shall be required to be
paid or delivered to the Administrative Agent only upon any Agent's
request. The Borrower irrevocably authorizes and empowers the Syndication
Agent to demand, sue for, collect and receive every such payment or
distribution and give acquittance therefor and to make and present for and
on behalf of the Borrower such proofs of claim and take such other action,
in the Syndication Agent's own name or in the name of the Borrower or
otherwise, as the Syndication Agent may deem necessary or advisable for the
enforcement of this SECTION 10.15. The Syndication Agent may vote such
proofs of claim in any such proceeding, receive and collect any and all
dividends or other payments or disbursements made thereon in whatever form
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the same may be paid or issued and apply the same on account of any of the
Secured Obligations. Should any payment, distribution, security or
instrument or proceeds thereof be received by the Borrower upon or with
respect to the Intercompany Indebtedness during the continuance of a
Default and prior to the satisfaction of all of the Secured Obligations and
the termination of all financing arrangements under this Agreement and the
other Loan Documents between the Borrower and the Agents and the Lenders,
the Borrower shall receive and hold the same in trust, as trustee, for the
benefit of the Agents and the Holders of Secured Obligations and shall
forthwith deliver the same to the Collateral Agent, for the benefit of the
Agents and the Holders of Secured Obligations, in precisely the form
received (except for the endorsement or assignment of the Borrower where
necessary), for application to any of the Secured Obligations, due or not
due, and, until so delivered, the same shall be held in trust by the
Borrower as the property of the Agents and the Lenders; PROVIDED, HOWEVER,
ordinary course payments or distributions made by any Guarantor to the
Borrower shall be required to be paid or delivered to the Administrative
Agent only upon request of the Syndication Agent. If the Borrower fails to
make any such endorsement or assignment to the Administrative Agent or
Syndication Agent, as applicable, the Syndication Agent or any of its
officers or employees are irrevocably authorized to make the same. The
Borrower agrees that until the Secured Obligations have been paid in full
in cash and satisfied and all financing arrangements under this Agreement
and the other Loan Documents between the Borrower and the Agents and the
Lenders have been terminated, the Borrower will not assign or transfer to
any Person (other than the Agents) any claim the Borrower has or may have
against any Guarantor.
ARTICLE XI: THE AGENTS
11.1 APPOINTMENT; NATURE OF RELATIONSHIP. Michigan National is
appointed by the Lenders as the Administrative Agent hereunder and under
each other Loan Document and ABN AMRO is appointed by the Lenders (in each
case on such Lender's behalf and on behalf of its Affiliates and their
respective officers, directors, employees, attorneys and agents) as the
Syndication Agent and Collateral Agent hereunder and under each of the
other Loan Documents, and each of the Lenders irrevocably authorizes the
Agents to act as the contractual representatives of such Lender with the
rights and duties expressly set forth herein and in the other Loan
Documents. Each of the Agents agrees to act as such contractual
representative upon the express conditions contained in this ARTICLE XI.
Notwithstanding the use of the defined term "Administrative Agent,"
"Collateral Agent," "Syndication Agent" or "Agent," it is expressly
understood and agreed that no Agent shall have any fiduciary
responsibilities to any Lender by reason of this Agreement and that the
Agents are merely acting as the representatives of the Lenders with only
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those duties as are expressly set forth in this Agreement and the other
Loan Documents. In its capacity as the Lenders' contractual
representative, (i) no Agent assumes any fiduciary duties to any of the
Lenders, (ii) each Agent is a "representative" of the Lenders within the
meaning of Section 9-105 of the Uniform Commercial Code and (iii) each
Agent is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the
other Loan Documents. Each of the Lenders agrees to assert no claim
against either Agent on any agency theory or any other theory of liability
for breach of fiduciary duty, all of which claims each Lender waives. Each
reference in this Article XI to a "Lender" shall in each case include other
Holders of Secured Obligations which constitute an Affiliate of such Lender
or its or its Affiliate's officers, directors, employees and agents, it
being the intention of the parties that the Agents act on behalf of the
Holders of Secured Obligations hereunder and under the other Loan
Documents.
11.2 POWERS. The Agents shall have and may exercise such powers
under the Loan Documents as are specifically delegated to such Agent by the
terms of each thereof, together with such powers as are reasonably
incidental thereto. The Agents shall have no implied duties or fiduciary
duties to the Lenders, or any obligation to the Lenders to take any action
hereunder or under any of the other Loan Documents except any action
specifically provided by the Loan Documents required to be taken by the
Agents or either of them.
11.3 GENERAL IMMUNITY. Neither the Agents nor any of their
respective directors, officers, agents or employees shall be liable to the
Borrower, the Lenders or any Lender for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith except to the extent such action or
inaction is found in a final judgment by a court of competent jurisdiction
to have arisen solely from the Gross Negligence or willful misconduct of
such Person.
11.4 NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS, RECITALS, ETC.
Neither the Agents nor any of their respective directors, officers, agents
or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (i) any statement, warranty or representation made
in connection with any Loan Document or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of any
obligor under any Loan Document; (iii) the satisfaction of any condition
specified in ARTICLE V, except receipt of items required to be delivered
solely to such Agent; (iv) the existence or possible existence of any
Default or Unmatured Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing
furnished in connection therewith. The Agents shall not be responsible to
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any Lender for any recitals, statements, representations or warranties
herein or in any of the other Loan Documents, for the perfection or
priority of the Liens on any of the Collateral, or for the execution,
effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents or the transactions contemplated thereby, or for the financial
condition of any guarantor of any or all of the Obligations, the Borrower
or any of its Subsidiaries.
11.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agents shall in all
cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions
signed by the Required Lenders, and such instructions and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders
and on all holders of Notes. The Agents shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the
Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action.
11.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agents may execute any of
its duties as the Agents hereunder and under any other Loan Document by or
through employees, agents, and attorney-in-fact and shall not be answerable
to the Lenders, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agents shall be
entitled to advice of counsel concerning the contractual arrangement
between the Agents and the Lenders and all matters pertaining to the
Agents' duties hereunder and under any other Loan Document.
11.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agents shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of counsel selected by
the Agents (or either of them), which counsel may be employees of one of
the Agents.
11.8 REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agents ratably in proportion to the Lenders'
respective Pro Rata Shares (i) for any amounts not reimbursed by the
Borrower for which the Agents or either of them are entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Agents or either of them on behalf of the Lenders,
in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and not reimbursed by the Borrower and
(iii) to the extent not reimbursed by the Borrower, for any liabilities,
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obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agents or either of them in
any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such
other documents, provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-
appealable judgment by a court of competent jurisdiction to have arisen
solely from the Gross Negligence or willful misconduct of the applicable
Agent.
11.9 RIGHTS AS A LENDER. With respect to its Revolving Loan
Commitment, its Tranche A Term Loan Commitment, its Tranche B Term Loan
Commitment, its Acquisition Facility Commitment, Loans made by it and the
Notes issued to it, each Agent shall have the same rights, powers and
obligations hereunder and under any other Loan Document as any Lender and
may exercise the same as though it were not an Agent, and the term "Lender"
or "Lenders" shall, unless the context otherwise indicates, include the
Agents in their individual capacity. The Agents may accept deposits from,
lend money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement or
any other Loan Document, with the Borrower or any of its Subsidiaries in
which such Person is not prohibited hereby from engaging with any other
Person.
11.10 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, any Arranger or any
other Lender and based on the financial statements prepared by the Borrower
and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Agents, the Arrangers or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan
Documents.
11.11 SUCCESSOR AGENTS. Any Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Without limiting
its ability to resign hereunder at any other time, any Administrative Agent
shall be deemed to have resigned upon written notice made by the Borrower
to the Agents, which notice the Borrower shall be entitled to deliver
hereunder in the event that the Borrower determines that it may be required
to pay any additional amounts pursuant to the provisions of SECTION 2.14(E)
hereof with respect to the Michigan Single Business Tax. Upon any such
resignation, the Required Lenders shall have the right to appoint, on
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behalf of the Lenders (without any consent required from the Borrower), a
successor Administrative Agent, Collateral Agent or Syndication Agent, as
applicable; PROVIDED, HOWEVER, upon any resignation (or deemed resignation)
by Michigan National as the Administrative Agent, ABN AMRO shall, without
further action on the part of the Lenders be appointed as the successor
Administrative Agent (provided it shall have the right to decline such
appointment); PROVIDED, FURTHER, upon any resignation by ABN AMRO as the
Syndication Agent and/or Collateral Agent, Michigan National shall, without
further action on the part of the Lenders be appointed as the successor
Syndication Agent and/or Collateral Agent (provided it shall have the right
to decline such appointment). If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty days after the retiring Agent's giving notice of resignation,
then the retiring Agent may appoint, on behalf of the Borrower and the
Lenders, a successor Administrative Agent, Collateral Agent or Syndication
Agent, as applicable. Such successor Agent shall be a commercial bank
having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as an Agent hereunder by a successor
Administrative Agent, Collateral Agent or successor Syndication Agent, such
successor shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent,
Collateral Agent or Syndication Agent, as applicable, and the retiring
Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents. After any retiring Agent's resignation
hereunder, the provisions of this ARTICLE XI shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as an Agent hereunder and under the other Loan
Documents.
11.12 COLLATERAL DOCUMENTS. (a) Each Lender authorizes the
Collateral Agent to enter into each of the Collateral Documents to which it
is a party and to take all action contemplated by such documents. Each
Lender agrees that no Lender shall have the right individually to seek to
realize upon the security granted by any Collateral Document, it being
understood and agreed that such rights and remedies may be exercised solely
by the Collateral Agent for the benefit of the Holders of Secured
Obligations upon the terms of the Collateral Documents.
(b) In the event that any Collateral is hereafter pledged by any
Person as collateral security for the Obligations, the Collateral Agent is
hereby authorized to execute and deliver on behalf of the Holders of
Secured Obligations any Loan Documents necessary or appropriate to grant
and perfect a Lien on such Collateral in favor of the Collateral Agent on
behalf of the Holders of Secured Obligations.
(c) The Lenders hereby authorize the Collateral Agent, at its
option and in its discretion, to release any Lien granted to or held by the
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Collateral Agent upon any Collateral or release any Guarantor from its
obligations under the Guaranty (i) upon termination of the Commitments and
payment and satisfaction of all of the Obligations at any time arising
under or in respect of this Agreement or the Loan Documents or the
transactions contemplated hereby or thereby; (ii) as permitted by, but only
in accordance with, the terms of the applicable Loan Document; or (iii) if
approved, authorized or ratified in writing by the Required Lenders, unless
such release is required to be approved by all of the Lenders hereunder.
Upon request by the Collateral Agent at any time, the Lenders will confirm
in writing the Collateral Agent's authority to release particular types or
items of Collateral pursuant to this SECTION 11.12(C).
(d) Upon any sale or transfer of Collateral or of a Subsidiary
which is expressly permitted pursuant to the terms of any Loan Document, or
consented to in writing by the Required Lenders or all of the Lenders, as
applicable, and upon at least five Business Days' prior written request by
the Borrower, the Collateral Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to the Collateral Agent for the
benefit of the Lenders herein or pursuant hereto upon the Collateral that
was sold or transferred and release the applicable Guarantor from its
obligation under the Guaranty; PROVIDED, HOWEVER, that (i) the Collateral
Agent shall not be required to execute any such document on terms which, in
the Collateral Agent's opinion, would expose the Collateral Agent to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release
shall not in any manner discharge, affect or impair the Obligations or any
Liens upon (or obligations of the Borrower or any Subsidiary in respect of)
all interests retained by the Borrower or any Subsidiary, including
(without limitation) the proceeds of the sale, all of which shall continue
to constitute part of the Collateral.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 SETOFF. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if any Default occurs and is
continuing, any indebtedness from any Lender to the Borrower (including all
account balances, whether provisional or final and whether or not collected
or available) may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any
part hereof, shall then be due.
12.2 RATABLE PAYMENTS. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments
received pursuant to SECTIONS 4.1, 4.2 or 4.4) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon
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demand, to purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable proportion of
Loans. If any Lender, whether in connection with setoff or amounts which
might be subject to setoff or otherwise, receives collateral or other
protection for its Obligation or such amounts which may be subject to
setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral
ratably in proportion to the obligations owing to them. In case any such
payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
12.3 APPLICATION OF PAYMENTS. Subject to the provisions of SECTION
9.2, (i) prior to the occurrence of a Default, the Administrative Agent
shall apply all payments and prepayments in respect of the Obligations in
such order as shall be specified by the Borrower and (ii) after the
occurrence of a Default, the Administrative Agent and the Collateral Agent
shall, unless otherwise specified at the direction of the Required Lenders
which direction shall be consistent with the last sentence of this SECTION
12.3, apply all payments and prepayments in respect of any Obligations and
all proceeds of Collateral in the following order:
(A) first, to the ratable payment of interest on and then
principal of any portion of the Loans which the Agents, or either of
them may have advanced on behalf of any Lender for which the
applicable Agent has not then been reimbursed by such Lender or the
Borrower;
(B) second, to the ratable payment of interest on and then
principal of any advance made under SECTION 10.3 for which the funding
Agents have not then been paid by the Borrower or reimbursed by the
Lenders;
(C) third, to the ratable payments of Obligations in respect of
any fees, expense reimbursements or indemnities then due to either of
the Agents in such capacity;
(D) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders, Swing Line Bank
and the issuer(s) of Letters of Credit;
(E) fifth, to pay interest due in respect of Loans (including
Swing Line Loans) and L/C Obligations;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans (including Swing Line Loans), Reimbursement
Obligations and Hedging Obligations under Interest Rate Agreements;
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(G) seventh, to provide required cash collateral, if required
pursuant to SECTION 3.11 and
(H) eighth, to the ratable payment of all other Secured
Obligations.
Unless otherwise designated (which designation shall only be applicable
prior to the occurrence of a Default) by the Borrower, all principal
payments in respect of Loans shall be applied FIRST, to repay outstanding
Floating Rate Loans, and THEN to repay outstanding Eurodollar Rate Loans
with those Eurodollar Rate Loans which have earlier expiring Interest
Periods being repaid or prepaid prior to those which have later expiring
Interest Periods. The order of priority set forth in this SECTION 12.3 and
the related provisions of this Agreement are set forth solely to determine
the rights and priorities of the Agents, the Lenders and the issuer(s) of
Letters of Credit as among themselves. The order of priority set forth in
CLAUSES (D) through (H) of this SECTION 12.3 may at any time and from time
to time be changed by the Required Lenders without necessity of notice to
or consent of or approval by the Borrower, or any other Person. The order
of priority set forth in CLAUSES (A) through (C) of this SECTION 12.3 may
be changed only with the prior written consent of the Agents.
12.4 RELATIONS AMONG LENDERS.
(A) Except with respect to the exercise of set-off rights of any
Lender in accordance with SECTION 12.1, the proceeds of which are applied
in accordance with this Agreement, and except as set forth in the following
sentence, each Lender agrees that it will not take any action, nor
institute any actions or proceedings, against the Borrower or any other
obligor hereunder or with respect to any Loan Document or the Collateral,
without the prior written consent of the Required Lenders or, as may be
provided in this Agreement or the other Loan Documents, at the direction of
the applicable Agent.
(B) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth
herein in case of the Agents) authorized to act for, any other Lender. The
Syndication Agent shall have the exclusive right on behalf of the Lenders
to enforce on the payment of the principal of and interest on any Loan
after the date such principal or interest has become due and payable
pursuant to the terms of this Agreement.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower
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and the Lenders and their respective successors and assigns, except that
(i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any Lender
must be made in compliance with SECTION 13.3 hereof. Notwithstanding
clause (ii) of this SECTION 13.1, any Lender may at any time, without the
consent of the Borrower or the Agents, assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank;
PROVIDED, HOWEVER, that no such assignment shall release the transferor
Lender from its obligations hereunder. The Agents may treat the payee of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with SECTION 13.3 hereof in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the
transfer is filed with the Administrative Agent. Any assignee or
transferee of a Note agrees by acceptance thereof to be bound by all the
terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving
such authority or consent is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note
or of any Note or Notes issued in exchange therefor.
13.2 PARTICIPATIONS.
(A) PERMITTED PARTICIPANTS; EFFECT. Subject to the terms set forth
in this SECTION 13.2, any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in
any Loan owing to such Lender, any Note held by such Lender, any Revolving
Loan Commitment of such Lender, any Acquisition Facility Commitment of such
Lender, any L/C Interest of such Lender or any other interest of such
Lender under the Loan Documents on a pro rata or non-pro rata basis.
Notice of such participation to the Borrower and the Agents shall be
required prior to any participation becoming effective with respect to a
Participant which is not a Lender or an Affiliate thereof. In the event of
any such sale by a Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, such Lender shall remain the holder of any
such Note for all purposes under the Loan Documents, all amounts payable by
the Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the Agents
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents except
that, for purposes of ARTICLE IV hereof, the Participants shall be entitled
to the same rights as if they were Lenders.
(B) VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
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modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or Revolving
Loan Commitment in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees payable
pursuant to the terms of this Agreement with respect to any such Loan or
Revolving Loan Commitment, postpones any date fixed for any regularly-
scheduled payment of principal (but not prepayments) of, or interest or
fees on, any such Loan or Revolving Loan Commitment, or releases all or
substantially all of the Collateral, if any, securing any such Loan.
(C) BENEFIT OF SETOFF. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in SECTION 12.1 hereof
in respect to its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents, PROVIDED
that each Lender shall retain the right of setoff provided in SECTION 12.1
hereof with respect to the amount of participating interests sold to each
Participant except to the extent such Participant exercises its right of
setoff. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in SECTION 12.1
hereof, agrees to share with each Lender, any amount received pursuant to
the exercise of its right of setoff, such amounts to be shared in
accordance with SECTION 12.2 as if each Participant were a Lender.
13.3 ASSIGNMENTS.
(A) PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to
one or more banks or other entities ("PURCHASERS") all or a portion of its
rights and obligations under this Agreement (including, without limitation,
its Revolving Loan Commitment, Acquisition Facility Commitment, the Loans
owing to it, all of its participation interests in existing Letters of
Credit, and its obligation to participate in additional Letters of Credit
hereunder) in accordance with the provisions of this SECTION 13.3. Each
assignment shall be of a constant, and not a varying, ratable percentage of
all of the assigning Lender's rights and obligations under this Agreement;
PROVIDED THAT (1) Lenders with Tranche B Pro Rata Shares greater than zero
may assign a portion of their interest in the Tranche B Term Loans without
assigning any other interest; (2) Michigan National Bank and National
Australia Bank Limited may assign varying percentages of their rights and
obligations with respect to the Revolving Loans, Revolving Loan Commitment,
Swing Line Loans, Swing Line Commitment, Acquisition Facility Loans,
Acquisition Loan Commitment and Tranche A Term Loans as between themselves
(the "PERMITTED MICHIGAN NATIONAL TRANSFERS") and (3) the Syndication Agent
may assign varying percentages of its rights and obligations with respect
to the Revolving Loans, Revolving Loan Commitment, Acquisition Facility
Loans, Acquisition Loan Commitment and Tranche A Loans during the
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Syndication Period with the consent of the Administrative Agent; PROVIDED,
HOWEVER that each such assignment shall be of all of the assigning Lender's
rights and obligations with respect to the Acquisition Loan Commitment,
Acquisition Facility Loans, Revolving Loan Commitment, Revolving Credit
Obligations Tranche A Term Loan Commitment and Tranche A Term Loan. Other
than in connection with Permitted Michigan National Transfers, such
assignment shall be substantially in the form of EXHIBIT E hereto and,
without the prior written consent of the Syndication Agent, shall not be
permitted hereunder unless such assignment is for all of such Lender's
rights and obligations under the Loan Documents, involves loans and
commitments in an aggregate amount of at least $5,000,000 or involves an
assignment to another Lender. Other than in connection with assignments of
all of the assigning Lender's rights and obligations under the Loan
Documents, the consent of the Administrative Agent shall be required prior
to an assignment becoming effective where the assigning Lender's aggregate
amount of loans and commitments retained after such assignment is less than
$4,000,000. The consent of the Syndication Agent and, prior to the
occurrence of a Default or Unmatured Default, the Borrower (which consent,
in each such case, shall not be unreasonably withheld or delayed), shall be
required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof.
(B) EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agents of a
notice of assignment, substantially in the form attached as APPENDIX I to
EXHIBIT E hereto (a "NOTICE OF ASSIGNMENT"), together with any consent
required by SECTION 13.3(A) hereof, and (ii) payment of a $3,500 fee to the
Administrative Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of
Assignment; PROVIDED, HOWEVER in connection with assignments by the
Syndication Agent during the Syndication Period, no such processing fee
shall be applicable. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment, Loans and L/C
Obligations under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in
and under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser, if not already
a Lender, shall for all purposes be a Lender party to this Agreement and
any other Loan Documents executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the same
extent as if it were an original party hereto, and no further consent or
action by the Borrower, the Lenders or the Agents shall be required to
release the transferor Lender with respect to the percentage of the
Aggregate Revolving Loan Commitment, Loans and Letter of Credit
participations assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this SECTION 13.3(B), the transferor
Lender, the Syndication Agent and the Borrower shall make appropriate
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arrangements so that replacement Notes are issued to such transferor Lender
and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their Revolving
Loan Commitment, Acquisition Facility Commitment and their Term Loans, as
adjusted pursuant to such assignment.
(C) THE REGISTER. The Administrative Agent shall maintain, solely
for the purposes of this Section, as agent for the Borrower, at its
address referred to in SECTION 14.1 a copy of each Assignment and
Acceptance Agreement effected pursuant to this SECTION 13.3 and a register
(the "REGISTER") for the recordation of the names and addresses of the
Lenders and the Commitments of and principal amount of the Loans owing to,
each Lender from time to time and whether such Lender is an original Lender
or the assignee of another Lender pursuant to an assignment under this
SECTION 13.3. The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower and each of its
Subsidiaries, the Agents and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement; PROVIDED, HOWEVER, that as to the amounts owed by the Borrower
to any Lender, as between the Borrower and the Lender, to the extent the
amount in the Register conflicts with the amounts reflected on the schedule
to such Lender's Notes, in the absence of manifest error, the Lender's
records instead of the Register shall be conclusive and binding. The
Register shall be available for inspection by the Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
13.4 CONFIDENTIALITY. Subject to SECTION 13.5, the Agents and the
Lenders shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by the Borrower in
accordance with such Person's customary procedures for handling
confidential information of this nature and in accordance with safe and
sound banking practices and in any event may make disclosure reasonably
required by a prospective Transferee in connection with the contemplated
participation or assignment or as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process and shall
require any such Transferee to agree (and require any of its Transferees to
agree) to comply with this SECTION 13.4. In no event shall any Agent or
any Lender be obligated or required to return any materials furnished by
the Borrower; PROVIDED, HOWEVER, each prospective Transferee shall be
required to agree that if it does not become a participant or assignee it
shall return all materials furnished to it by or on behalf of the Borrower
in connection with this Agreement.
13.5 DISSEMINATION OF INFORMATION. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or direct or indirect
contractual counterparty in swap agreements (or such contractual
counterparty's professional advisor) or any other Person acquiring an
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interest in the Loan Documents by operation of law (each a "TRANSFEREE")
and any prospective Transferee any and all information in such Lender's
possession concerning the Borrower and its Subsidiaries; PROVIDED that
prior to any such disclosure, such prospective Transferee shall agree to
preserve in accordance with SECTION 13.4 the confidentiality of any
confidential information described therein.
ARTICLE XIV: NOTICES
14.1 GIVING NOTICE. Except as otherwise permitted by SECTION 2.13
with respect to borrowing notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan
Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto
or at such other address as may be designated by such party in a notice to
the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if
transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes).
14.2 CHANGE OF ADDRESS. The Borrower, the Agents and any Lender may
each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agents and the Lenders and each party has notified the Syndication Agent by
facsimile or telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agents have
executed this Agreement as of the date first above written.
SPARTAN STORES, INC.
as the Borrower
By: /s/James B. Meyer
Name: James B. Meyer
Title: President
Address:
850 76th Street S.W.
P.O. Box 8700
Grand Rapids, MI 49518-8700
Attention: Director of Finance
Telephone No.: (616) 878-8616
Facsimile No.: (616) 878-2889
ABN AMRO BANK N.V.,
as Arranger, Syndication Agent, Collateral
Agent, as a Lender and as an Issuing
Bank
By: /s/James Pierpont
Name: James Pierpont
Title: Senior Vice President
By: /s/Joann L. Holman
Name: Joann L. Holman
Title: Vice President
Address:
135 South LaSalle Street
Chicago, IL 60674-9135
Attention: Joann Holman
Telephone No.: (312) 904-7835
Facsimile No.: (312) 606-8425
Signature Page to Spartan Stores, Inc.
Credit Agreement
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MICHIGAN NATIONAL BANK,
as Co-Arranger, Administrative Agent, as a
Lender and as an Issuing Bank
By: /s/Peter T. Campbell
Name: Peter T. Campbell
Title: Relationship Manager
Address:
77 Monroe Center, N.W.
P.O. Box 1707
Grand Rapids, MI 49501-1707
Attention: Commercial Financial Services (02-53)
Telephone No.: 616/451-7624
Facsimile No.: 616/451-7708
Signature Page to Spartan Stores, Inc.
Credit Agreement
S-2
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/Kenneth A. Selle
Name: Kenneth A. Selle
Title: First Vice President
Address:
One First National Plaza
Mail Suite 0429
Chicago, IL 60670-0429
Attention: Kenneth A. Selle
Telephone No.: 312/732-9524
Facsimile No.: 312/732-7455
Signature Page to Spartan Stores, Inc.
Credit Agreement
S-3
<PAGE>
HARRIS TRUST AND SAVINGS BANK
By: /s/Julia B. Buthman
Name: Julia B. Buthman
Title: Managing Director
Address:
111 W. Monroe Fl 18w
Chicago, IL 60603
Attention: Julia B. Buthman
Telephone No.: 312/461-2744
Facsimile No.: 312/765-8095
Signature Page to Spartan Stores, Inc.
Credit Agreement
S-4
<PAGE>
NATIONAL CITY BANK
By: /s/Patricia A. Jackson
Name: Patricia A. Jackson
Title: Vice President
Address:
155 E. Broad St.
Columbus, OH 43251
Attention: Patricia A. Jackson
Telephone No.: 614/463-8065
Facsimile No.: 614/463-6770
Signature Page to Spartan Stores, Inc.
Credit Agreement
S-5
<PAGE>
OLD KENT BANK
By: /s/V. Scott Rowley
Name: V. Scott Rowley
Title: Vice President
Address:
111 Lyon Avenue N.W.
Grand Rapids, MI 49503
Attention: Corporate Banking
Telephone No.: 616/771-5265
Facsimile No.: 616/771-4641
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
COMERICA BANK
By: /s/Robert M. Porterfield
Name: Robert M. Porterfield
Title: Vice President
Address:
500 Woodward Avenue, 9th Floor
Detroit, MI 48226-3268
Attention: Robert M. Porterfield
Telephone No.: 313/222-7802
Facsimile No.: 313/222-9514
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
MERCANTILE BANK NATIONAL
ASSOCIATION
By: /s/Gerald S. Kick
Name: Gerald S. Kirk
Title: Assistant Vice President
Address:
One Mercantile Center (12th Floor)
7th & Washington
St. Louis, MO 63101
Attention: Gerald S. Kirk
Telephone No.: 314/418-8247
Facsimile No.: 314/418-2203
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
UNITED OF OMAHA LIFE INSURANCE
GMPA
By: /s/Edwin M. Garrison Jr.
Name: Edwin H. Garrison Jr.
Title: First Vice President
Address:
United of Omaha Life Insurance Company
Mutual of Omaha Plaza
Omaha, NE 68175-1011
Attention: 4-Investment Loan Administration
Telephone No.: 402/351-2504
Facsimile No.: 402/351-2501
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
BALANCED HIGH-YIELD FUND I LTD.,
By: BHF-Bank Aktiengesellschaft, acting
through its New York Branch, as attorney-in-
fact, as Assignee
By: /s/Thomas Scifo
Name: Thomas Scifo
Title: Assistant Vice President
By: /s/Hans J. Scholz
Name: Hans J. Scholz
Title: Assistant Vice President
Address:
590 Madison Ave.
New York, NY 10022
Attention: Geoffrey C. Gwin
Telephone No.: 212/756-5532
Facsimile No.: 212/756-5536
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
BALANCED HIGH-YIELD FUND II LTD.,
By: BHF-Bank Aktiengesellschaft, acting
through its New York Branch, as attorney-in-
fact, as Assignee
By: /s/Thomas Scifo
Name: Thomas Scifo
Title: Assistant Vice President
By: /s/Hans J. Scholz
Name: Hans J. Scholz
Title: Assistant Vice President
Address:
590 Madison Ave.
New York, NY 10022
Attention: Geoffrey C. Gwin
Telephone No.: 212/756-5532
Facsimile No.: 212/756-5536
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/F.C.H. Ashby
Name: F.C.H. Ashby
Title: Sr. Manager Loan Operations
Address:
600 Peachtree Street
Suite 2700
Atlanta, GA 30308
Attention: F.C.H. Ashby
Telephone No.: 404/877-1540
Facsimile No.: 404/888-8998
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
U.S. BANK NATIONAL ASSOCIATION
By: /s/James W. Wilber
Name: James M. Wilber
Title: Vice President
Address:
701 Lee St.
Suite 800
Des Plaines, IL 60016
Attention: James M. Wilber
Telephone No.: 847/390-5615
Facsimile No.: 847/390-5699
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
NCB CAPITAL CORPORATION
By: /s/Elaine M. MacDonald
Name: Elaine M. MacDonald
Title: Vice President
Address:
1401 Eye Street, N.W.
Suite 700
Washington, DC 20005
Attention: Barry W. Silver
Managing Director
Telephone No.: 202/336-7621
Facsimile No.: 202/336-7659
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
IMPERIAL BANK
By: /s/Ray Vadalma
Name: Ray Vadalma
Title: Senior Vice President
Address:
9920 S. LaCienga Blvd.
14th Floor
Inglewood, CA 90301
Attention: Jamie Harney
Telephone No.: 310/417-5656
Facsimile No.: 310/417-5997
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK NEDERLAND," NEW
YORK BRANCH
By: /s/Hans F. Breukhoven
Name: Hans F. Breukhoven
Title: Vice President
By: /s/
Name:
Title:
Address:
300 South Wacker
Suite 3500
Chicago, IL 60606
Attention: Tom Levasseur
Telephone No.: 312/408-8249
Facsimile No.: 312/408-8240
With copies to:
Debra Rivers/Chandra Rambarran
Rabobank Nederland
10 Exchange Place
Jersey City, NJ 07302
Telephone No.: 201/499-5317/201/499-5316
Facsimile No.: 201/499-5326
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
NBD BANK
By: /s/Kevin M. Paul
Name: Kevin M. Paul
Title: First Vice President
Address:
200 Ottawa Avenue, N.W.
Grand Rapids, MI 49503
Attention: Kevin M. Paul
Telephone No.: 616/771-7231
Facsimile No.: 616/771-7440
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/Mary Ann McCarthy
Name: Mary Ann McCarthy
Title: Managing Director
Address:
1295 State Street
Springfield, MA 01111
Attention: John Wheeler
Telephone No.: 413/744-6228
Facsimile No.: 413/744-6127
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
KZH RIVERSIDE LLC
By: /s/Virginia Conway
Name: Virginia Conway
Title: Authorized Agent
Address:
c/o The Chase Manhattan Bank
450 West 33rd Street - 15th Floor
New York, NY 10001
Attention: Virginia Conway
Telephone No.: 212/946-7575
Facsimile No.: 212/946-7776
With copies to:
Shan McSweeney
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193
Telephone No.: 212/351-3806
Facsimile No.: 212/351-4035
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
BANK BOSTON, N.A., AS TRUST ADMINISTRATOR FOR
LONGLANE MASTER TRUST IV
By: /s/Renee Ross
Name: Renee Ross
Title: Managing Director, Credit
Derivatives
Address:
100 Federal Street
12th Floor
Boston, MA 02110
Attention: Matthew Rose
Telephone No.: 617/434-7264
Facsimile No.: 617/434-6795
Signature Page to Spartan Stores, Inc.
Credit Agreement
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<PAGE>
NATIONAL AUSTRALIA BANK LIMITED
By: /s/Bill Schmid
Name: Bill Schmid
Title: Vice President
Address:
Wholesale Financial Services -- Americas
200 Park Avenue, 34th Floor
New York, NY 10166
Attention: Bill Schmid
Telephone No.: 212/916-9596
Facsimile No.: 212/983-1969
Signature Page to Spartan Stores, Inc.
Credit Agreement
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