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Exhibit
10.1
LOAN
AGREEMENT
THIS AGREEMENT (as the same
may be amended, restated or otherwise modified, the
“Agreement”) is made this 29 day of October, 2007,
between UNIVERSAL TRUCKLOAD SERVICES, INC., a Michigan corporation
with offices at 12755 E. Nine Mile Road, Warren, Michigan 48089
(“Borrower”) and KEYBANK NATIONAL ASSOCIATION, a
national banking association, with offices at 100 S. Main Street,
Ann Arbor, Michigan 48104 (“Lender”).
In consideration of the
covenants and agreements contained herein, the Borrower and the
Lender hereby mutually agree as follows:
1.1 General. Any
accounting term used but not specifically defined herein shall be
construed in accordance with GAAP (as defined below). The
definition of each agreement, document, and instrument set forth in
Section 1.2 hereof shall be deemed to mean and include
such agreement, document, or instrument as amended, restated, or
modified from time to time.
1.2 Defined Terms. As
used in this Agreement:
“Business Day”
means a day of the year on which banks are not required or
authorized to close in Cleveland, Ohio.
“Code” shall mean
the Internal Revenue Code of 1986, as amended, together with the
rules and regulations promulgated thereunder.
“Controlled
Group” shall mean Borrower and each Person required to be
aggregated with Borrower under Code Sections 414(b), (c),
(m) or (o).
“Cure Period”
shall mean (i) five (5) days with respect to a Monetary
Default and the failure to comply with Sections 5.1(c) and 6.4,
(ii) ten (10) days with respect to a Non-Monetary Default
under Sections 5.1(a) and (b), and (iii) thirty (30) days
with respect to any other Non-Monetary Default; provided, however,
there shall not be a Cure Period for an Event of Default under
Section 6.10.
“Environmental
Law” means any federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating,
relating to, or imposing liability upon a Person in connection with
the use, release or disposal of any hazardous, toxic or dangerous
substance, waste or material.
“ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated pursuant
thereto.
“ERISA Event”
shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that presents a substantial risk of the
imposition of an excise tax or any other liability on the Borrower
or of the imposition of a Lien on the assets of Borrower;
(b) the engagement by a Controlled Group member in a
non-exempt “prohibited transaction” (as
defined
under ERISA Section 406 or Code
Section 4975) or a breach of a fiduciary duty under ERISA that
could result in liability to Borrower; (c) the application by
a Controlled Group member for a waiver from the minimum funding
requirements of Code Section 412 or ERISA Section 302 or
a Controlled Group member is required to provide security under
Code Section 401(a)(29) or ERISA Section 307;
(d) the occurrence of a Reportable Event with respect to any
Pension Plan as to which notice is required to be provided to the
PBGC; (e) the withdrawal by a Controlled Group member from a
Multiemployer Plan in a “complete withdrawal” or a
“partial withdrawal” (as such terms are defined in
ERISA Sections 4203 and 4205, respectively); (f) the
involvement of, or occurrence or existence of any event or
condition that makes likely the involvement of, a Multiemployer
Plan in any reorganization under ERISA Section 4241;
(g) the failure of an ERISA Plan (and any related trust) that
is intended to be qualified under Code Sections 401 and 501 to be
so qualified or any “cash or deferred arrangement”
under any such ERISA Plan to meet the requirements of Code
Section 401(k); (h) the taking by the PBGC of any steps
to terminate a Pension Plan or appoint a trustee to administer a
Pension Plan; (i) the failure by a Controlled Group member or
an ERISA Plan to satisfy any requirements of law applicable to an
ERISA Plan; (j) the commencement, existence or threatening of
the incurrence by a Controlled Group member of a substantial claim,
action, suit, audit or investigation with respect to an ERISA Plan,
other than a routine claim for benefits or audit; or (k) any
occurrence by or any expectation of the incurrence by a Controlled
Group member of any liability for post-retirement benefits under
any Welfare Plan, other than as required by ERISA Section 601,
et. seq. or Code Section 4980B.
“ERISA Plan”
shall mean an “employee benefit plan” (within the
meaning of ERISA Section 3(3)) that a Controlled Group member
at any time sponsors, maintains, contributes to, has liability with
respect to or has an obligation to contribute to such
plan.
“ERISA Affiliate”
means Borrower or any of its Subsidiaries.
“Event of
Default” means any one or more of the occurrences described
in Section 6 hereof.
“GAAP” means
generally accepted accounting principles as in effect, which shall
include the official interpretations thereof by the Financial
Accounting Standards Board, consistently applied.
“Indebtedness”
shall mean, all obligations of Borrower (excluding in all cases
trade payables payable in the ordinary course of business), to
repay borrowed money, including, (a) all obligations for the
deferred purchase price of capital assets, (b) all obligations
under conditional sales or other title retention agreements,
(c) all obligations (contingent or otherwise) under any letter
of credit, banker’s acceptance, currency swap agreement, or
Interest Rate Agreement, (d) all synthetic leases,
(e) all lease obligations that have been or should be
capitalized on the books of such Person in accordance with GAAP,
(f) all obligations with respect to asset securitization
financing programs to the extent that there is recourse against
Borrower or Borrower is liable (contingent or otherwise) under any
such program, and (g) any other transaction (including forward
sale or purchase agreements) having the commercial effect of a
borrowing of money to finance operations or capital
requirements.
“Interest Rate
Agreement” means any agreement for a derivative or hedging
product, including, without limitation, interest rate or equity
swaps, futures, options, caps, floors, collars, or forwards now or
hereafter executed by and between Borrower and Lender or any Lender
Affiliate.
“L/C Sublimit”
means the aggregate undrawn face value of all Letters of Credit
permitted in Section 2.4 .
“Lender
Affiliate” means any one or more bank or non-bank
subsidiaries (other than the Lender) of KeyCorp and its
successors.
“Letter of
Credit” means any outstanding letter of credit issued by
Lender on behalf of Borrower.
“Lien” means any
mortgage, security interest, lien, charge, encumbrance on, pledge
or deposit of, or conditional sale or other title retention
agreement with respect to any property or asset.
“Loan” or
“Loans” means the credit to the Borrower extended by
the Lender in accordance with Section 2
hereof.
“Loan Documents”
means the collective reference to this Agreement and all other
instruments, agreements and documents entered into from time to
time, evidencing the Loan or any obligation of payment thereof or
performance of Borrower’s obligations in connection with the
transaction contemplated hereunder, each as amended.
“Margin Stock”
shall have the meaning given to it under Regulation U of the Board
of Governors of the Federal Reserve System, as amended from time to
time.
“Material Adverse
Change” means any condition or event that has caused a
material adverse effect on the business, operations, property or
condition (financial or otherwise) or prospects of Borrower and its
Subsidiaries (taken as a whole) to the extent that it causes
Borrower to be in breach of one or more of the financial covenants
in Section 5.23.
“Maturity Date”
means October 28, 2008.
“Monetary
Default” shall mean any event under Section 6 of this
Agreement which may be cured by the payment of money.
“Multiemployer
Plan” shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.
“Non-Monetary
Default” shall mean any event under Section 6 of this
Agreement other than a Monetary Default.
“Note” means the
promissory note signed and delivered by the Borrower to evidence
its Indebtedness to the Lender pursuant to Section 2
hereof .
“Obligation” or
“Obligations” means, collectively, (a) all
Indebtedness and other obligations incurred by Borrower to Lender
pursuant to this Agreement and includes the principal of and
interest on the Note; (b) each extension, renewal or
refinancing thereof in whole or in part; (c) the commitment
and other fees, and any prepayment fees payable under this
Agreement or any other Loan Document; and (d) every other
liability, now or hereafter owing to Lender by Borrower, and
includes, without limitation, any Interest Rate Agreement entered
into by Borrower with Lender or any Lender Affiliate and every
other liability, whether owing by only Borrower or by Borrower with
one or more others in a several, joint or joint and several
capacity, whether owing absolutely or contingently, whether created
by note, overdraft, guaranty of payment or other contract or by
quasi-contract, tort, statute or other operation of law, whether
incurred directly to Lender or acquired by Lender by purchase,
pledge or otherwise and whether participated to or from Lender in
whole or in part.
“Organization”
means a corporation, government or government subdivision or
agency, business trust, estate, trust, partnership, association,
two or more Persons having a joint or common interest, and any
other legal or commercial entity.
“PBGC” shall mean
the Pension Benefit Guaranty Corporation, or its
successor.
“Pension Plan”
shall mean an ERISA Plan that is a “pension plan”
within the meaning of ERISA Section 3(2).
“Permitted
Encumbrances” means, as of any particular time,
(a) liens for ad valorem taxes and special assessments not
then delinquent, (b) this Agreement, and any security interest
or other lien created thereby, (c) any Permitted Encumbrances
defined in any of the Loan Documents, and (d) any liens
permitted by Section 5.15 hereof.
“Person” means an
individual or an Organization.
“Plan” means any
plan (other than a Multiemployer Plan) defined in ERISA in which
the Borrower or any Subsidiary is, or has been at any time during
the preceding two (2) years, an “employer” or a
“substantial employer” as such terms are defined in
ERISA.
“Potential
Default” means any condition, action, or failure to act
which, with the passage of time, service of notice, or both, will
constitute an Event of Default under this Agreement.
“Reportable
Event” shall mean a reportable event as that term is defined
in Title IV of ERISA, except actions of general applicability by
the Secretary of Labor under Section 110 of such
Act.
“Revolving
Credit” means the Revolving Credit Facility described in
Section 2.2 hereof, which Revolving Credit shall be
payable in accordance with the terms of such Revolving Credit
Facility and this Agreement.
“Revolving Credit
Commitment Amount” shall initially mean Twenty Million
Dollars ($20,000,000). The Revolving Credit Commitment Amount shall
reduce on a dollar for dollar basis by the principal amount of any
credit facilities extended by Key Equipment Finance Corporation to
Borrower or any Subsidiary.
“Subordinated
Debt” means indebtedness and liabilities of Borrower which
have been subordinated by written agreement to indebtedness owed by
Borrower to Lender in form and substance acceptable to
Lender.
“Subsidiary” or
“Subsidiaries” means any Person now or hereafter
existing of which more than fifty percent (50%) of the
following is, at the time, owned or controlled, directly or
indirectly, by Borrower or one or more other Subsidiaries:
(i) the voting stock or units entitling the holders thereof to
elect a majority of the board of directors, managers, or trustees
thereof, or (ii) the interest in the capital or profits of
such Person.
“Tangible Net
Worth” means Borrower’s total assets excluding all
intangible assets (i.e., goodwill, trademarks, patents, copyrights,
organizational expenses, and similar intangible items, but
including leaseholds and leasehold improvements) less Total
Debt.
“Total Debt”
means all of Borrower’s liabilities including Subordinated
Debt.
The foregoing definitions
shall be applicable to the singulars and plurals of the foregoing
defined terms.
2.1 INTENTIONALLY
OMITTED.
2.2 Revolving Credit
Facility; Use of Proceeds .
(a) The Lender hereby agrees,
subject to the terms and conditions of this Agreement, to extend
the Revolving Credit Facility to Borrower as follows: Lender will,
upon request from Borrower, make loan advances to or for the
account of Borrower up to but not exceeding an aggregate unpaid
principal amount outstanding at any one time equal to the Revolving
Credit Commitment Amount.
(b) The proceeds of the
Revolving Credit Facility shall be used to refinance existing
indebtedness of Borrower and for general corporate
purposes.
2.3 Fees . The
Borrower shall pay the Lender the following fees:
(a) Borrower agrees to pay
Lender a letter of credit fee of one half of one percent (.50%) per
annum of the amount of any issued and outstanding standby Letters
of Credit, payable annually in advance, plus usual and customary
issuance and administrative fees.
All fees payable hereunder
shall be fully earned and non-refundable upon issuance of each
Standby Letter of Credit.
2.4 Letters of Credit
. So long as no event of default has occurred and/or no demand for
payment of the Note has been made, and subject to the other
conditions of the Loan
Documents, Borrower may request Lender
to issue Letters of Credit under the Revolving Credit for the
account of Borrower, provided that (a) the aggregate undrawn
face value of all such Letters of Credit at any time outstanding
does not exceed $2,500,000 (“L/C Sublimit”), and
(b) the L/C Sublimit when combined with the amount of advances
outstanding under the Note, does not exceed the Revolving Credit
Commitment Amount.
(a) The following types of
Letters of Credit can be issued hereunder: performance standby
Letters of Credit; and/or commercial Letters of Credit.
(b) Whenever a Letter of
Credit is drawn, unless the amount drawn is immediately reimbursed
by Borrower, the amount of the draw shall be an advance under the
Note.
(c) For each Letter of Credit
required by Borrower and issued by Lender, Borrower agrees to
execute and deliver to Lender an appropriate application and
agreement in a form as required by Lender, and to pay such fees as
are generally charged by Lender under its fee schedule in effect
from time to time.
Borrower represents and
warrants to the Lender (which representations and warranties will
survive the delivery of the Notes and the making of the Loans)
that:
3.1 Existence and Legal
Authority . Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Michigan and has all requisite power and authority to own its
property and to carry on its business as now being conducted, to
enter into the Loan Documents to which it is a party and to carry
out the provisions and conditions of such Loan Documents to which
it is a party. Borrower is duly qualified to do business and is in
good standing in every jurisdiction where the failure to so qualify
would have a material adverse effect.
3.2 Due Execution and
Delivery . Borrower has full power, authority and legal right
to incur the obligations provided for in, and to execute and
deliver and to perform and observe the terms and provisions of, the
Loan Documents to which it is a party, and each of them has been
duly executed and delivered by Borrower and has been authorized by
all required action, and Borrower has obtained all requisite
consents to the transactions contemplated thereby under any
instrument to which it is a party, and the Loan Documents
constitute the legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their respective
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency or other similar laws affecting
creditors’ rights generally.
3.3 No Breach of Other
Instruments . Neither the execution and delivery of the Loan
Documents, nor the compliance by Borrower with the terms and
conditions of the Loan Documents, nor the consummation of the
transactions contemplated thereby, will conflict with or result in
a breach of the Articles of Incorporation or other governing
documents of Borrower, or any of the terms, conditions or
provisions of any agreement or instrument or any charter or other
corporate restriction or law, regulation, rule or order of any
governmental body or agency to which Borrower is now a party or is
subject, or imposition of a lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of Borrower
pursuant to the terms of any such agreement or
instrument.
3.4 Government
Authorization . No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by Borrower of the transactions contemplated by the
Loan Documents.
3.5 Ownership of
Property . Except for Permitted Encumbrances or as otherwise
permitted in this Agreement, Borrower has and will have good and
marketable fee title to, or valid leasehold interests in, its real
properties in accordance with the laws of the jurisdiction where
located, and good and marketable title to substantially all its
other property and assets, subject, however, in the case of real
property, to title defects and restrictions which do not materially
interfere with the operations conducted thereon by Borrower. Except
for Permitted Encumbrances, the real property and all other
property and assets of the Borrower are free from any liens or
encumbrance securing Indebtedness and from any other liens,
encumbrances, charges or security interests of any kind. Each
lease, if any, to which Borrower is a party is in full force and
effect, and no material default on the part of Borrower or, to its
knowledge, any other party thereto exists.
3.6 Absence of Defaults,
etc . Borrower is not (i) in material default under any
indenture or contract or agreement to which it is a party or by
which it is bound, (ii) in violation of its articles of
incorporation, bylaws or code of regulations, as applicable, or any
other governing document, (iii) in default with respect to any
order, writ, injunction or decree of any court, or (iv) in
default under any order or license of any federal or state
governmental department. There exists no condition, event or act
which constitutes, or after notice or lapse of time or both would
constitute, an Event of Default.
3.7 Indebtedness of
Borrower . Borrower does not have outstanding on the date
hereof, any Indebtedness for borrowed money, except for such
Indebtedness identified in the financial statements referred to in
Section 3.8 hereof.
3.8 Financial
Condition . The Borrower has furnished to the Lender financial
statements which, in the opinion of Borrower, fairly and accurately
reflect the financial condition for the operations of Borrower, and
there has been no material adverse change in the Borrower’s
financial prospects since that date which would require revision of
the same.
3.9 No Adverse Change
. Subsequent to the date of the financial statements referred to in
Section 3.8 hereof, Borrower has not incurred or agreed
to incur any material liabilities or obligations, direct or
contingent, and there has not been any material increase in the
anticipated aggregate amount of debt of Borrower, as of the date of
this Agreement, nor has any event or condition occurred which has
caused, or after giving effect thereto, would result in a Material
Adverse Change.
3.10 Taxes . Borrower
has filed all tax returns which are to be filed and has paid, or
has made adequate provision for the payment of, all taxes which
have or may become due pursuant to said returns or to assessments
received by them, provided, that, Borrower shall not be required to
pay such taxes, assessments or charges to the extent the same are
being contested in
good faith by appropriate proceedings
and for which Borrower is maintaining appropriate reserves. The
provisions for taxes reflected in the financial statements referred
to in Section 3.8 are believed adequate to cover any
and all accrued and unpaid taxes for which Borrower is liable for
the period ended on the date of such balance sheet and all prior
periods. Borrower does not know of any deficiency assessment or
proposed deficiency assessment of taxes for which Borrower may be
liable, except as may be otherwise disclosed in writing to the
Lender prior to the date hereof.
3.11 Litigation .
Prior to the date hereof, there are no actions, suits or
proceedings pending, or to the actual knowledge of Borrower,
threatened against or affecting Borrower or any of its property in
any court, or before or by any federal, state or municipal or other
governmental department, commission, board, bureau, agency or other
instrumentality, domestic or foreign, except for actions, suits or
proceedings of a character normally incident to the kind of
business conducted by Borrower, none of which, either individually
or in the aggregate, if adversely determined, would reasonably be
expected to result in a Material Adverse Change.
3.12 Environmental
Matters . Borrower is in compliance in all material respects
with all Environmental Laws and all applicable federal, state and
local health and safety laws, regulations, ordinances or rules.
Lender acknowledges that Borrower has disclosed to it that Borrower
is a party to a certain Financial Assurance Affidavit and other
documentation with respect to certain real property in Cleveland,
Ohio owned by one of Borrower’s subsidiaries (the “BP
Site”), and that the State of Ohio has issued a covenant not
to sue and other related documentation with respect to the BP
Site.
3.13 Consolidated
Financial Statements . For any period during which Borrower has
any Subsidiaries, all financial statements submitted by the
Borrower and all calculations hereunder based on same shall be
consolidated or combined with such Subsidiaries, as the context
required.
3.14 ERISA . No
Reportable Event or Prohibited Transaction which could create a
liability in excess of One Hundred Thousand Dollars ($100,000.00)
and which has caused a Material Adverse Change has occurred and is
continuing with respect to any Plan of Borrower, and Borrower has
not incurred an “accumulated funding deficiency” (as
that term is defined by ERISA) since the effective date of ERISA
which has caused a Material Adverse Change.
3.15 Solvency .
Borrower is not insolvent as defined in any applicable state or
federal statute, nor will Borrower be rendered insolvent by the
execution and delivery of this Agreement or any of the Loan
Documents to Lender. Borrower is not engaged or about to engage in
any business or transaction for which the assets retained by it
shall constitute an unreasonably small capital, taking into
consideration the obligations to Lender incurred hereunder.
Borrower does not intend to, or believe that it will, incur debts
beyond its ability to pay them as they mature.
3.16 No Burdensome
Restrictions . Borrower is not a party to any instrument or
agreement or subject to any charter or other corporate restriction
which would cause a Material Adverse Change.
3.17 Federal Reserve
Regulations; Use of Loan Proceeds . Borrower is not engaged
principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any
Margin Stock. No part of the proceeds of the Loans will be used,
directly or indirectly, for a purpose which violates any law, rule
or regulation of any governmental body, including without
limitation the provisions of Regulations G, U, or X of the Board of
Governors of the Federal Reserve System, as amended. No part of the
proceeds of the Loans will be used, directly or indirectly, to
purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin
Stock.
3.18 OFAC/USA PATRIOT ACT
RESTRICTIONS . Borrower is not (nor will it be) a person with
whom Lender is restricted from doing business under regulations of
the Office of Foreign Asset Control (“OFAC”) of the
Department of the Treasury of the United States of America
(“Treasury”) or under any list of known or suspected
terrorists or terrorist organizations issued by any federal
government agency and designated as such by Treasury in
consultation with the federal functional regulators, or under any
statute, executive order, or other governmental action, and
Borrower, to its knowledge, is not engaging, in any dealings or
transactions or is otherwise associated with such persons. In
addition, Borrower hereby agrees to provide to the Lender with any
additional information that the Lender reasonably deems necessary
from to time in order to ensure compliance with all applicable laws
concerning money laundering and similar activities.
4.1 Loan Funding . The
obligation of the Lender to close the transactions contemplated by
this Agreement shall be subject to satisfaction of the following
conditions, unless waived in writing by the Lender: (a) all
conditions precedent, legal matters and Loan Documents incident to
the transactions contemplated hereby shall be reasonably
satisfactory, in form and substance, to Lender’s counsel
including, without limitation, those items set forth in the Summary
Term Sheet dated October 29, 2007 issued by Lender to
Borrower; (b) the Lender shall have received
(i) certificates by an authorized officer or representative of
Borrower upon which the Lender may conclusively rely until
superseded by similar certificates delivered to the Lender,
certifying that (1) all requisite action taken in connection
with the transactions contemplated hereby has been duly authorized
and (2) the names, signatures, and authority of
Borrower’s authorized signers executing the Loan Documents,
and (ii) such other documents as the Lender may reasonably
require to be executed by, or delivered on behalf of, Borrower;
(c) the Lender shall have received the Note with all blanks
appropriately completed, executed by an authorized signer for
Borrower; (d) the Borrower shall have paid to the Lender the
fees then due and payable under this Agreement and the other Loan
Documents; (e) Borrower shall have maintained its financial
condition in a manner so that no Material Adverse Change shall have
occurred in Borrower’s financial condition; (f) the
Lender shall have received the written opinions of legal counsel
for the Borrower selected by the Borrower and satisfactory to the
Lender, dated the date of this Agreement and covering the Loan
Documents and such other matter(s) as the Lender may reasonably
require; and (g) the Lender shall have received written
instructions by the Borrower with respect to disbursement of the
proceeds of the Loan.
4.2 INTENTIONALLY
OMITTED.
4.3 Each Loan . The
obligation of the Lender to make any Loan shall be subject to
initial compliance with Section 4.1 and 4.2
herein and also subject to satisfaction of the following conditions
that at the date of making such Loan, and after giving effect
thereto: (a) no Event of Default shall have occurred and
continue to exist and (b) each representation and warranty set
forth in Section 3 above is true and correct as if then
made.
As long as credit is
available hereunder or until all principal of and interest on the
Note has been paid, the Borrower covenants and agrees that it will
comply with the following provisions:
5.1 Accounting; Financial
Statements and Other Information . Borrower shall maintain a
standard system of accounting, established and administered in
accordance with GAAP consistently followed throughout the periods
involved, and will set aside on its books for each quarter and
fiscal year, the proper amounts or accruals for depreciation,
obsolescence, amortization, bad debts, current and deferred taxes,
prepaid expenses, and for other purposes as shall be required by
GAAP. Borrower will deliver or cause to be delivered to the Lender
the following, all of which shall be in form and substance
reasonably acceptable to Lender:
(a) As soon as practicable
after the end of each fiscal quarter in each fiscal year, except
the last, and in any event within forty five (45) days
thereafter, consolidated financial statements, including income
statement, balance sheet of the Borrower and its Subsidiaries as of
the end of such fiscal quarter, and statements of cash flow,
changes in financial position, and shareholder’s equity for
such fiscal quarter, certified as complete and correct by an
authorized officer of Borrower, subject to changes resulting from
year-end adjustments;
(b) As soon as practicable
after the end of each fiscal year, and in any event within one
hundred twenty (120) days thereafter, audited, consolidated
financial statements, including income statement, balance sheet,
statement of condition of the Borrower and its Subsidiaries as of
the end of such year, and statement of cash flow and changes in
financial position of the Borrower and its Subsidiaries for such
year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared
by an independent certified public accountant, selected by Borrower
and satisfactory to the Lender, and prepared in accordance with
GAAP;
(c) Together with each set of
financial statements required by subparagraphs (a) and
(b) above, a covenant compliance certificate setting forth the
calculations of the financial covenants set forth in
Section 5.23 , together with certificate by the chief
financial officer or other authorized officer of Borrower stating
that the representations and warranties contained in this Agreement
are true and correct as of the date of the certificate, and whether
or not there exists any Event of Default or Potential Default,
specifying the nature and period of existence thereof and what
action, if any, the Borrower is taking or proposes to take with
respect thereto;
(d) Promptly and in any event
within ten (10) days after the occurrence of a Reportable
Event with respect to a Plan, a copy of any materials required to
be filed with the PBGC with respect to such Reportable Event or
those that would have been required to be filed if the thirty
(30) day notice requirement to PBGC were not
waived;
(e) Promptly upon receipt,
and in
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