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EXHIBIT 10.1
TERM LOAN AGREEMENT
This Term
Loan Agreement (the "AGREEMENT") is made and entered into by
and between the undersigned borrower (the
"BORROWER") and the undersigned bank
(the "BANK") as of the date set forth on
the last page of this Agreement.
ARTICLE I. LOANS
1.1 TERMS
FOR ADVANCE(S). [CHOOSE ONE:]
[X] SINGLE
ADVANCE TERM LOAN. As of the date hereof, the Borrower
has obtained a term loan from the Bank in the amount of
$9,500,000.00 (the "LOAN AMOUNT"). The term loan is evidenced
by a single promissory note of the Borrower to the order of
the Bank in the principal amount of the Loan Amount and dated
as of the date hereof (the "NOTE").
[ ] MULTIPLE
ADVANCE TERM LOAN. Prior to n/a or the earlier
termination hereof, the Borrower may obtain advances from the
Bank in an aggregate amount not exceeding $ n/a (the "LOAN
AMOUNT"). The term loans will be evidenced by a single
promissory note of the Borrower to the Bank in the principal
amount of the Loan Amount and dated as of the date hereof (the
"NOTE"). Although the Note will be expressed as payable in the
full Loan Amount, the Borrower will be obligated to pay only
the amounts actually disbursed hereunder, together with
accrued interest on the outstanding balance at the rates and
on the dates specified therein and such other charges provided
for herein.
1.2
ADVANCES AND PAYING PROCEDURE. The Bank is authorized and directed
to
credit any of the Borrower's accounts with
the Bank (or to the account the
Borrower designates in writing) for all
loans made hereunder, and the Bank is
authorized to debit such account or any
other account of the Borrower with the
Bank for the amount of any principal,
interest or expenses due under the Note or
other amount due hereunder on the due date
with respect thereto. If, upon any
request by the Borrower to the Bank to
issue a wire transfer, there is an
inconsistency between the name of the
recipient of the wire and its
identification number as specified by the
Borrower, the Bank may, without
liability, transmit the payment via wire
based solely upon the identification
number.
1.3
CLOSING FEE. The Borrower will pay the Bank a one-time closing fee
of
$ n/a contemporaneously with execution of
this Agreement. This fee is in
addition to all other fees, expenses and
other amounts due hereunder.
1.4
COMPENSATING BALANCES. The Borrower will maintain on deposit with
the
Bank in non-interest bearing accounts
average daily collected balances, in
excess of that required to support account
activity and other credit facilities
extended to the Borrower by the Bank, an
amount at least equal to the sum of (i)
$ n/a and (ii) n/a % of the Loan Amount as
computed on a monthly basis. If the
Borrower fails to keep and maintain such
balances, it will pay a deficiency fee,
payable within five days after receipt of a
statement therefor calculated on the
amount by which the Borrower's average
daily balances are less than the
requirements set forth above, computed at a
rate equal to the rate set forth in
the Note.
1.5
EXPENSES AND ATTORNEYS' FEES. Upon demand, the Borrower will
immediately reimburse the Bank and any
Participant (defined below) for all
reasonable attorneys' fees and all other
costs, fees and out-of-pocket
disbursements incurred by the Bank or any
Participant in connection with the
preparation, execution, delivery,
administration, defense and enforcement of
this Agreement or any of the other Loan
Documents (defined below), including
attorneys' fees and all other costs and
fees (a) incurred before or after
commencement of litigation or at trial, on
appeal or in any other proceeding,
(b) incurred in any bankruptcy proceeding
and (c) related to any waivers or
amendments with respect thereto (examples
of costs and fees include but are not
limited to fees and costs for: filing,
perfecting or confirming the priority of
the Bank's lien, title searches or
insurance, appraisals, environmental audits
and other reviews related to the Borrower,
any collateral or the loans, if
requested by the Bank). The Borrower will
also reimburse the Bank and any
Participant for all reasonable costs of
collection, including all attorneys'
fees, before and after judgment, and the
costs of preservation and/or
liquidation of any collateral.
1.6
CONDITIONS TO BORROWING. The Bank will not be obligated to make
(or
continue to make) advances hereunder unless
(i) the Bank has received executed
originals of the Note and all other
documents or agreements applicable to the
loans described herein, including but not
limited to the documents specified in
Article III (collectively with this
Agreement the "Loan Documents" ), in form
and content satisfactory to the Bank; (ii)
if the loan is secured, the Bank has
received confirmation satisfactory to it
that the Bank has a properly perfected
security interest, mortgage or lien, with
the proper priority, (iii) the Bank
has received certified copies of the
Borrower's governance documents and
certification of entity status satisfactory
to the Bank and all other relevant
documents; (iv) the Bank has received a
certified copy of a resolution or
authorization in form and content
satisfactory to the Bank authorizing the loan
and all acts contemplated by this Agreement
and all related documents, and
confirmation of proper authorization of all
guaranties and other acts of third
parties contemplated hereunder; (v) if
required by the Bank, the Bank has been
provided with Opinion of the Borrower's
counsel in form and content satisfactory
to the Bank confirming the matters outlined
in Section 2.2 and such other
matters as the Bank requests; (vi) no
default exists under this Agreement or
under any other Loan Documents, or under
any other agreements by and between the
Borrower and the Bank; and (vii) all
proceedings taken in connection with the
transactions contemplated by this Agreement
(including any required
environmental assessments), and all
instruments, authorizations and other
documents applicable thereto, are
satisfactory to the Bank and its counsel.
(c) us bancorp 2001
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ARTICLE II. WARRANTIES AND COVENANTS
While any
part of the credit granted to the Borrower under this Agreement
or the other Loan Documents is available or
any obligations under any of the
Loan Documents are unpaid or outstanding,
the Borrower continuously warrants and
agrees as follows:
2.1 ACCURACY OF INFORMATION. All
information, certificates or statements given
to the Bank pursuant to this Agreement and
the other Loan Documents will be true
and complete when given.
2.2 ORGANIZATION AND AUTHORITY; LITIGATION.
This Agreement and the other Loan
Documents are the legal, valid and binding
obligations of the Borrower,
enforceable against the Borrower in
accordance with their terms. The execution,
delivery and performance of this Agreement
and all other Loan Documents to which
the Borrower is a party (i) are within the
borrower's power; (ii) have been duly
authorized by all appropriate entity
action; (iii)do not require the approval of
any governmental agency; and (iv) will not
violate any law, agreement or
restriction by which the Borrower is bound.
If the Borrower is not an
individual, the Borrower is validly
existing and in good standing under the laws
of its state of organization, has all
requisite power and authority and
possesses all licenses necessary to conduct
its business and own its properties.
There is no litigation or administrative
proceeding threatened or pending
against the Borrower which would, if
adversely determined, have a material
adverse effect on the Borrower's financial
condition or its property.
2.3 EXISTENCE; BUSINESS ACTIVITIES; ASSETS;
CHANGE OF CONTROL. The Borrower will
(i) preserve its existence, rights and
franchises; (ii) not make any material
change in the nature or manner of its
business activities; (iii)not liquidate,
dissolve, acquire another entity or merge
or consolidate with or into another
entity or change its form of organization;
(iv) not amend its organizational
documents in any manner that may conflict
with any term or condition of the Loan
Documents; and (v) not sell, lease,
transfer or otherwise dispose of all or
substantially all of its assets. Other than
the transfer to a trust beneficially
controlled by the transferor, no event
shall occur which causes or results in a
transfer of majority ownership of the
Borrower while any Obligations are
outstanding or while the Bank has any
obligation to provide funding to the
Borrower.
2.4 USE OF PROCEEDS; MARGIN STOCK;
SPECULATION. Advances by the Bank hereunder
will be used exclusively by the Borrower
for the purposes represented to the
Bank. The Borrower will not, without the
prior written consent of the Bank,
redeem, purchase, or retire any of the
capital stock or declare or pay any
dividends, or make any other payments or
distributions of a similar type or
nature including withdrawal distributions.
The Borrower will not use any of the
loan proceeds to purchase or carry "margin"
stock (as defined in Regulation U of
the Board of Governors of the Federal
Reserve System). No part of any of the
proceeds will be used for speculative
investment purposes, including, without
limitation, speculating or hedging in the
commodities and/or futures market.
2.5 ENVIRONMENTAL MATTERS. Except as
disclosed in a written schedule attached to
this Agreement (if no schedule is attached,
there are no exceptions), there
exists no uncorrected violation by the
Borrower of any federal, state or local
laws (including statutes, regulations,
ordinances or other governmental
restrictions and requirements) relating to
the discharge of air pollutants,
water pollutants or process waste water or
otherwise relating to the environment
or Hazardous Substances as hereinafter
defined, whether such laws currently
exist or are enacted in the future
(collectively "ENVIRONMENTAL LAWS"). The term
"HAZARDOUS SUBSTANCES" will mean any
hazardous or toxic wastes, chemicals or
other substances, the generation,
possession or existence of which is prohibited
or governed by any Environmental Laws. The
Borrower is not subject to any
judgment, decree, order or citation, or a
party to (or threatened with) any
litigation or administrative proceeding,
which asserts that the Borrower (i) has
violated any Environmental Laws; (ii) is
required to clean up, remove or take
remedial or other action with respect to
any Hazardous Substances (collectively
"REMEDIAL ACTION"); or (iii) is required to
pay all or a portion of the cost of
any Remedial Action, as a potentially
responsible party. Except as disclosed on
the Borrower's environmental questionnaire
provided to the Bank, there are not
now, nor to the Borrower's knowledge after
reasonable investigation have there
ever been, any Hazardous Substances (or
tanks or other facilities for the
storage of Hazardous Substances) stored,
deposited, recycled or disposed of on,
under or at any real estate owned or
occupied by the Borrower during the periods
that the Borrower owned or occupied such
real estate, which if present on the
real estate or in soils or ground water,
could require Remedial Action. To the
Borrower's knowledge, there are no proposed
or pending changes in Environmental
Laws which would adversely affect the
Borrower or its business, and there are no
conditions existing currently or likely to
exist while the Loan Documents are in
effect which would subject the Borrower to
Remedial Action or other liability.
The Borrower currently complies with and
will continue to timely comply with all
applicable Environmental Laws; and will
provide the Bank, immediately upon
receipt, copies of any correspondence,
notice, complaint, order or other
document from any source asserting or
alleging any circumstance or condition
which requires or may require a financial
contribution by the Borrower or
Remedial Action or other response by or on
the part of the Borrower under
Environmental Laws, or which seeks damages
or civil, criminal or punitive
penalties from the Borrower for an alleged
violation of Environmental Laws.
2.6 COMPLIANCE WITH LAWS. The Borrower has
complied with all laws applicable to
its business and its properties, and has
all permits, licenses and approvals
required by such laws, copies of which have
been provided to the Bank.
2.9 RESTRICTION ON CONTINGENT LIABILITIES.
The Borrower will not guarantee or
become a surety or otherwise contingently
liable for any obligations of others,
except pursuant to the deposit and
collection of checks and similar matters in
the ordinary course of business.
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2.10 INSURANCE. The Borrower will maintain
insurance to such extent, covering
such risks and with such insurers as is
usual and customary for businesses
operating similar properties, and as is
satisfactory to the Bank, including
insurance for fire and other risks insured
against by extended coverage, public
liability insurance and workers'
compensation insurance.
2.11 TAXES AND OTHER LIABILITIES. The
Borrower will pay and discharge, when due,
all of its taxes, assessments and other
liabilities, except when the payment
thereof is being contested in good faith by
appropriate procedures which will
avoid foreclosure of liens securing such
items, and with adequate reserves
provided therefor.
2.12 FINANCIAL STATEMENTS AND REPORTING.
The financial statements and other
information previously provided to the Bank
or provided to the Bank in the
future are or will be complete and accurate
and prepared in accordance with
generally accepted accounting principles.
There has been no material adverse
change in the Borrower's financial
condition since such information was provided
to the Bank. The Borrower will (i) maintain
accounting records in accordance
with generally recognized and accepted
principles of accounting consistently
applied throughout the accounting periods
involved; (ii) provide the Bank with
such information concerning its business
affairs and financial condition
(including insuranc
