AMENDED AND RESTATED REVOLVING CREDIT AGREEMENTRevolving Credit Agreement |
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BANC OF AMERICA SECURITIES LLC | BANK OF AMERICA, N.A. | BANKNORTH, NA | CITIZENS BANK OF MASSACHUSETTS | JP MORGAN CHASE BANK | RC AIR, LLC | SOVEREIGN BANK | UNIFIRST CANADA LTD | UNIFIRST CORPORATION | UNIFIRST HOLDINGS LP | UNIFIRST-FIRST AID CORPORATION | UNITECH SERVICES GROUP, INC | UONE CORPORATION | UR CORPORATION | UTWO CORPORATION | WACHOVIA BANK, NATIONAL ASSOCIATION. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.1
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT Dated as of June 14, 2004
Among
UNIFIRST CORPORATION UNITECH SERVICES GROUP, INC. UNIFIRST CANADA LTD. UNIFIRST HOLDINGS L.P. UONE CORPORATION UTWO CORPORATION UR CORPORATION RC AIR, LLC UNIFIRST-FIRST AID CORPORATION
as Borrowers and BANK OF AMERICA, N.A. WACHOVIA BANK, NATIONAL ASSOCIATION JP MORGAN CHASE BANK SOVEREIGN BANK BANKNORTH, N.A. CITIZENS BANK OF MASSACHUSETTS
as Banks and OTHER LENDING INSTITUTIONS WHICH MAY BECOME PARTIES TO THIS AGREEMENT and BANK OF AMERICA, N.A. as Administrative Agent and WACHOVIA BANK, NATIONAL ASSOCIATION as Syndication Agent and JP MORGAN CHASE BANK SOVEREIGN BANK
as Co-Documentation Agents And BANC OF AMERICA SECURITIES LLC as Arranger
TABLE OF CONTENTS
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of June 14, 2004, by and among UNIFIRST CORPORATION, a Massachusetts corporation (“UniFirst”), UNITECH SERVICES GROUP, INC., a California corporation (“UniTech”), UNIFIRST CANADA LTD., a Canadian Federal corporation (“UniFirst Canada”), UNIFIRST HOLDINGS, L.P., a Texas limited partnership (“UniFirst Holdings”), UONE CORPORATION, a Massachusetts corporation (“UOne”), UTWO CORPORATION, a Delaware corporation (“UTwo”), UR CORPORATION, a Delaware corporation (“UR”), RC AIR, LLC, a New Hampshire limited liability company (“RC Air”), UNIFIRST-FIRST AID CORPORATION, a Maryland corporation (“Unifirst-First Aid”) (UniFirst, UniTech, UniFirst Canada, UniFirst Holdings, UOne, UTwo, UR, RC Air, and Unifirst-First Aid being sometimes hereinafter referred to individually as a “Borrower” and collectively as the “Borrowers”); BANK OF AMERICA, N.A., a national banking association organized under the laws of the United States (“BOA”), executing this Agreement in its capacity as one of the Banks and each of the other lending institutions listed on Schedule 1 hereto on the date hereof (BOA and each such other lending institution, and the other lending institutions which may become parties hereto pursuant to Section 10.9 individually, a “Bank” and collectively, the “Banks”), BANK OF AMERICA, N.A., executing this Agreement in the capacity of Administrative Agent for the Banks (in such capacity, the “Administrative Agent”), WACHOVIA BANK, NATIONAL ASSOCIATION executing this Agreement in the capacity of Syndication Agent, JP MORGAN CHASE BANK and SOVEREIGN BANK, executing this Agreement in the capacity of Co-Documentation Agents, and BANC OF AMERICA SECURITIES LLC, executing this Agreement in the capacity of Arranger.
WHEREAS, the Borrowers, certain other subsidiaries of the Borrowers (such subsidiaries and the Borrowers, the “Existing Borrowers”), the Banks, certain other lenders (collectively, the “Existing Lenders”), and Fleet National Bank (“Fleet”) as administrative agent are party to that certain Revolving Credit Agreement dated as of September 2, 2003 (as amended prior to the date hereof, the “September 2003 Credit Agreement”);
WHEREAS, FleetBoston Financial Corporation and Bank of America Corporation have merged and BOA desires to be administrative agent, issuing bank and a bank under this Agreement by the assignment from Fleet, and otherwise on the terms and conditions set forth herein, and the Banks hereby consent to such assignment;
WHEREAS, the Borrowers are issuing the Senior Notes (as defined below) on the Closing Date (as defined below) the proceeds of which shall be used to repay a portion of the outstanding Revolving Credit Loans (as defined in the September 2003 Credit Agreement) and reducing the Revolving Credit Commitments of the Existing Lenders thereunder by the amount so repaid, and, effective as of such repayment and such
reduction, certain of the Existing Lenders (the “Exiting Lenders”) shall assign, on the terms set forth in the Assignment and Assumption Agreement dated as of the date hereof (the “First Assignment”) among the Exiting Lenders, Fleet National Bank, and the Existing Borrowers, the Revolving Credit Loans and Revolving Credit Commitments (each as defined under the September 2003 Credit Agreement) of each Exiting Lender to Fleet National Bank, as an Existing Lender;
WHEREAS, immediately after the First Assignment becomes effective but prior to the effectiveness of this Agreement, and pursuant to the Global Assignment and Acceptance Agreement dated as of the date hereof (the “Global Assignment”) among Fleet National Bank, Bank of America, N.A., the Banks remaining under the September 2003 Credit Agreement after the First Assignment becomes effective, and the Existing Borrowers, (i) Fleet National Bank, as an Existing Lender, shall assign to Bank of America, N.A., its Revolving Credit Loans and Revolving Credit Commitments, (ii) Fleet National Bank, as Administrative Agent, Issuing Bank and Swingline Lender (each as defined under the September 2003 Credit Agreement), shall assign to Bank of America, N.A., its rights and duties as Administrative Agent, Issuing Bank and Swingline Lender under the September 2003 Credit Agreement, and (iii) Bank of America, N.A., as Bank (as defined under the September 2003 Credit Agreement), shall assign to certain of the Existing Lenders certain of its Revolving Credit Loans and Revolving Credit Commitments;
WHEREAS, the Borrowers, the Banks and the Administrative Agent desire to amend and restate the September 2003 Credit Agreement as set forth herein (including, without limitation, to release Uniformes de San Luis S.A. de C.V., a Mexican corporation (“Uniformes”), Unifirst S.A. de C.V., a Mexican corporation (“UniFirst S.A.), Euro Nuclear Services (Netherlands) B.V., a Dutch company (“Euro Nuclear”), ENS Nuklear Services, Gmbh, a German limited liability company (“ENS Nuklear”), and Euro Nuclear Services Limited, a company incorporated in the United Kingdom (“ENS Ltd.”), as Borrowers);
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree that the September 2003 Credit Agreement shall be amended and restated effective as of the date first written above, to read in its entirety as follows:
1.1.1 “ Administrative Agent” means BOA acting in the capacity as Administrative Agent for the Banks under this Agreement and the other Loan Documents, and includes (where the context so admits) any other person or persons succeeding to the functions of the Administrative Agent under those documents.
1.1.2 “Affiliate” means, with reference to any person, (including an individual, a corporation, a partnership, a trust and a governmental agency or instrumentality), (i) any director, officer or employee of that person, (ii) any other person controlling, controlled by or under direct or indirect common control of that person, (iii) any other person directly or indirectly holding 5% or more of any class of the capital stock or other equity interests (including options, warrants, convertible securities and similar rights) of that person and (iv) any other person 5% or more of any class of whose capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that person; provided , that the term “Affiliate” shall not include any Borrower.
1.1.3 “Agreement” means this Amended and Restated Revolving Credit Agreement, including the Exhibits hereto, as originally executed, or if this Agreement is amended, varied or supplemented from time to time, as so amended, varied or supplemented.
1.1.4 “Ancillary Documents” means, collectively, (i) the Royal Bank Documents and, (ii) all other agreements, instruments and contracts which shall from time to time be identified by the Agent, the Banks and any Borrower as “Ancillary Documents” for purposes of this Agreement.
1.1.5 “Annual Report” means UniFirst’s Annual Report on Form 10-K for the fiscal year ended August 30, 2003 as filed with the Securities and Exchange Commission.
1.1.5(a) “Anti-Terrorism Order” means Executive Order No. 13,224 66 Fed Reg. 49,079 (2001) issued by the President of the United States of America (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism).
1.1.6 “Applicable Base Rate Margin” shall have the meaning set forth in Section 2.5.1 hereof.
1.1.7 “Applicable Eurodollar Rate Margin” shall have the meaning set forth in Section 2.5.9 hereof.
1.1.9 “Assumed Indebtedness” shall have the meaning set forth in Section 5.5 hereof.
1.1.10 “Bank” or “Banks” shall have the meaning set forth in the preamble hereto.
1.1.11 “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by BOA as its “prime rate.” The “prime rate” is a rate set by BOA based upon various factors including BOA’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by BOA shall take effect at the opening of business on the day specified in the public announcement of such change.
1.1.11(a) “Base Rate Loan” means Revolving Credit Loans bearing interest at the Base Rate plus the Applicable Base Rate Margin.
1.1.13 “Borrowers’ Accountants” means independent certified public accountants reasonably acceptable to the Administrative Agent and the Banks. The Administrative Agent and the Banks hereby acknowledge that the Borrowers’ Accountants may include Ernst & Young LLP.
1.1.14 “Business” means the business of the Borrowers and their Subsidiaries as described in the Annual Report.
1.1.15 “Business Day” means, for purposes of loans bearing interest pursuant to Section 2.5.1 hereof, a day on which national banks are generally open and conducting normal business in Boston, Massachusetts, and for purposes of loans bearing interest pursuant to Section 2.5.9 hereof, any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London or such other eurodollar interbank market as may be selected by the Administrative Agent in its sole discretion and acting in good faith.
1.1.16 “Capital Expenditures” means any expenditure for fixed assets, leasehold improvements, capital leases under GAAP, installment purchases of machinery and equipment, acquisitions of real estate and other similar expenditures.
1.1.19 “Commitment Fee” means the Commitment Fee payable by the Borrowers pursuant to Section 2.5.2 hereof.
1.1.19(a) “Commitment Letter” means that certain Engagement Letter dated as of May 11, 2004, entered into by and among the Administrative Agent, BOA as Bank, the Arranger, and UniFirst.
1.1.20 “Commitment Percentage” means, with respect to each Bank, the percentage set forth on Schedule 1 hereto as such Bank’s percentage of the aggregate Revolving Credit Commitments. Schedule 1 will be updated by the Administrative Agent from time to time to reflect any changes to the Commitment Percentages as reflected in any applicable assignment agreement.
1.1.21 “Consolidated” means the relevant figures for the Borrowers and their Subsidiaries on a consolidated basis determined in accordance with GAAP.
1.1.22 “Consolidated Tangible Net Worth” means the amount which is equal to the Consolidated net worth of the Borrowers and their Subsidiaries computed in accordance with GAAP, minus (i) to the extent not otherwise approved in advance by the Administrative Agent and the Banks, any write-up in the book value of any asset of any Borrower or any Subsidiary resulting from revaluation thereof after the date of the Initial Financial Statement, (ii) the book value, net of applicable reserves, of all intangible assets of the Borrowers and their Subsidiaries, including, without limitation, goodwill, trademarks, trade names, copyrights, patents and any similar rights, agreements under or in respect of which a person covenants not to compete with any Borrower or any Subsidiary, and unamortized debt discount and expense, and (iii) the value, if any, attributable to any notes or subscriptions receivable due from stockholders in respect of capital stock.
1.1.24 “Controlled Group” means all members of a controlled group of corporations, all trades or businesses (whether or not incorporated) under common control and all other organizations or entities which, together with the Borrowers, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.
1.1.25 “Customer Lists” means any list, computer program, document or writing which sets forth the name and/or address of any person or entity which at the time in question is obtaining service or merchandise offered by any of the Borrowers for sale or lease.
1.1.26 “Debt Coverage Ratio” shall have the meaning set forth in Section 5.27 hereof.
1.1.26(a) “Delinquent Bank” shall have the meaning set forth in Section 8.3A hereof. 1.1.26(b) “Dollars” or “$”. Dollars in lawful currency of the United States of America.
1.1.27 “Drawdown Date” means the Business Day on which any Revolving Credit Loan is made or to be made to any Borrower hereunder.
1.1.28 “EBIT” means, for any period, the Net Income of the Borrowers and their Subsidiaries, before Interest Charges and provision for taxes and without giving effect to any extraordinary or nonrecurring gains (or losses), for such period (including, without limitation, gains or losses on asset sales).
1.1.28(a) “EBITDA” means, for any period, the EBIT of the Borrowers and their Subsidiaries for such period, plus depreciation and amortization expense of the Borrowers and their Subsidiaries for such period and any non-cash accretion expense relating to SFAS 143 for such period. For purposes of this definition, it is agreed that for purposes of the Reference Period ending May 29, 2004, EBITDA shall equal EBITDA for such period plus $1,700,000.00.
1.1.29(a) “Equity Securities” means, as to any Person, any shares of any class of capital stock or other equity interests of such Person, voting or non-voting, or any options, warrants or similar rights with respect to any such shares or other equity interests.
1.1.30 “ERISA” means the Employee Retirement Income Security Act of 1974 and the rules and regulations thereunder, collectively, as the same may from time to time be supplemented or amended and remain in effect.
1.1.30(a) “Eurocurrency Reserve Rate” means for any day with respect to a Eurodollar Rate Loan, the actual rate (expressed as a decimal) at which any lender subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar regulations relating to such reserve requirements) against “Eurocurrency Liabilities” (as that term is defined in Regulation D), if such liabilities were outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically.
1.130(b) “Eurodollar Business Day” means any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London or such other eurodollar interbank market as may be selected by the Administrative Agent in its sole discretion and acting in good faith.
1.130(c) “Eurodollar Lending Office” means, initially, the office of each Bank designated as such in Schedule 1 hereto; thereafter, such other office of such Bank, if any, that shall be making or maintaining Eurodollar Rate Loans.
1.1.31 “Eurodollar Rate” means, with respect to any Interest Period, in the case of any Eurodollar Rate Loan, the rate of interest equal to (i) the arithmetic mean of the rates per annum for each Reference Bank (rounded upwards to the nearest 1/100 of one
percent) of the rate at which such Reference Bank’s Eurodollar Lending Office is offered Dollar deposits two Eurodollar Business Days prior to the beginning of such Interest Period in the London interbank eurodollar market at approximately 11 a.m. London time where the eurodollar and foreign currency and exchange operations of such Eurodollar Lending Office are customarily conducted, for the delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of the Eurodollar Rate Loan of such Reference Bank to which such Interest Period applies, divided by (ii) a number equal to 1.00 minus the Eurocurrency Reserve Rate.
1.1.31(a) “Eurodollar Rate Loan” means Revolving Credit Loans bearing interest calculated by reference to the Euroloan Rate.
1.1.32 “Euroloan Rate Amount” means, in relation to any Interest Period, any portions of the principal amount of any Revolving Credit Loans on which the Borrowers elect pursuant to Section 2.5.9 hereof to pay interest at a rate determined by reference to the Euroloan Rate.
1.1.34 “Federal Funds Rate” means, for any day, the rate per annum equal to 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 by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to BOA on such day on such transactions as determined by the Administrative Agent.
1.1.35 “Fee Letter” means the Letter Agreement dated as of May 11, 2004, among BOA, the Arranger and the Borrower.
1.1.36 “Funded Debt Ratio” means, in relation to any Reference Period, the ratio of (a) all Indebtedness for borrowed money of the Borrowers and their Subsidiaries as at the end of such Reference Period (including, without limitation, the Obligations, the Stated Amount of Letters of Credit, the Senior Notes, obligations in respect of capital leases, and Subordinated Debt), to (b) EBITDA for such Reference Period.
1.1.37 “GAAP” means generally accepted accounting principles (as in effect from time to time), consistently applied.
1.1.37(a) “Hedging Obligations” of any Person shall mean any and all obligations of such Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (i) any and all Hedging Transactions, and (ii) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.
1.1.37(b) “Hedging Transaction” of any Person shall mean any transaction (including an agreement with respect thereto) now existing or hereafter entered into between such Person and any counterparty, including, without limitation any Bank or Affiliate of any Bank, that is a rate swap, basis swap, forward rate transaction, commodity swap, interest rate option, foreign exchange transaction, cap transaction, floor transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.
1.1.38 “Indebtedness” with respect to any person means and includes, without duplication, (i) all items which, in accordance with GAAP, would be included as a liability on the balance sheet of such person, but excluding anything in the nature of capital stock, surplus capital and retained earnings, (ii) the face amount of all banker’s acceptances and of all letters of credit issued by any bank for the account of such person and all drafts drawn thereunder, (iii) the total amount of all indebtedness secured by any Encumbrance to which any property or asset of such person is subject, whether or not the indebtedness secured thereby shall have been assumed, and (iv) the total amount of all indebtedness and obligations of others which such person has directly or indirectly guaranteed, endorsed (otherwise than for collection or deposit in the ordinary course of business), discounted with recourse or agreed (contingently or otherwise) to purchase or repurchase or otherwise acquire, including, without limitation, any agreement (a) to advance or supply funds to such other person to maintain working capital, equity capital, net worth or solvency, or (b) otherwise to assure or hold harmless such other person against loss in respect of its obligations.
1.1.39 “Initial Financial Statement” shall have the meaning set forth in Section 3.7 hereof.
1.1.40 “Insolvent” or “Insolvency” means that there shall have occurred one or more of the following events with respect to a person: death; dissolution; termination of existence; insolvency within the meaning of the United States Bankruptcy Code or other applicable statute; such person’s inability to pay its debts as they come due; appointment of a receiver of any part of the property of, execution of a trust mortgage or an assignment for the benefit of creditors by, or the filing of a petition in bankruptcy or the commencement of any proceedings under any bankruptcy or insolvency laws, or any laws relating to the relief of debtors, readjustment of indebtedness or reorganization of debtors, or the offering of a plan to creditors for composition or extension, except for an involuntary proceeding commenced against such person which is dismissed within thirty
(30) days after the commencement thereof without the entry of an order for relief or the appointment of a trustee.
1.1.41 “Interest Charges” means, in relation to any person for any particular period, the expenses of such person in respect of interest required to be paid by such person during such period on the outstanding Indebtedness and capital lease obligations (to the extent not otherwise included in Indebtedness) of such person and in respect of commitment fees, facility fees and similar fees and charges required to be paid during such period in connection with the outstanding Indebtedness and capital lease obligations (to the extent not otherwise included in Indebtedness) of such person.
1.1.42 “Interest Period” means, as to any Euroloan Rate Amount, the period, the commencement and duration of which shall be determined in accordance with Section 2.5.9 hereof, provided , that if any such Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the Business Day next preceding or next succeeding such day as determined by the Administrative Agent in accordance with its usual practices and notified to the Borrowers by the Administrative Agent at the beginning of such Interest Period.
1.1.42(a) “ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
1.1.46 “Letters of Credit” means letters of credit issued by the Issuing Bank as standby or documentary letters of credit, issued by the Issuing Bank at the request of any of the Borrowers and for the account of the Borrowers, pursuant to this Agreement and subject to the limitations contained herein. The term Letters of Credit shall also include those Carryover LC’s (as such term is defined in the September 2003 Credit Agreement) which remain outstanding as of the date hereof.
1.1.47 “Loan Documents” means, collectively, this Agreement (including, without limitation, the agreements and other instruments listed or described in Section 4 hereof), the Revolving Credit Notes, the Swingline Notes, the Letters of Credit (and all letter of credit applications and agreements executed and delivered in connection therewith), and Fee Letter, together with any agreements, instruments or documents contemplated thereby and all schedules, exhibits and annexes thereto.
1.1.48 “Majority Banks” means those Banks whose aggregate Revolving Credit Commitments constitute at least fifty-one percent (51%) of the Revolving Credit Maximum Amount in effect at the relevant time of reference, or if such Revolving Credit Commitments shall have terminated, those Banks whose aggregate Revolving Credit Loans (including Swingline Loans)and Letters of Credit outstanding constitute at least fifty-one percent (51%) of the aggregate Revolving Credit Loans (including Swingline Loans) and Letters of Credit outstanding at the relevant time of reference.
1.1.49 “Mandatory Prepayments” shall have the meaning set forth in Section 2.2.2 hereof.
1.1.50 “Multi-Employer Plan” means any multi-employer plan within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
1.1.51 “Net Income” means the Consolidated net income from continuing operations of the Borrowers and their Subsidiaries for the period in question, determined in accordance with GAAP.
1.1.51(a) “Net Proceeds” means with respect to the incurrence of any Indebtedness by any Borrower and the sale, transfer or other disposition by any Borrower of any asset or group of assets (other than inventory wholly in the ordinary course of business, but including, without limitation, any sale of Equity Securities), means the amount of cash (freely convertible into Dollars) received by any Borrower or agent thereof or the Administrative Agent, from such incurrence, sale, transfer or other disposition (including, without limitation, any tax refund or tax benefit resulting from a loss on such incurrence, sale, transfer or other disposition as and when such tax benefit is actually realized), after (i) provision for all income or other taxes of the Borrowers measured by or resulting from such incurrence, sale, transfer or other disposition, (ii) payment of all reasonable third party brokerage commissions and other reasonable out-of-pocket fees and expenses to third parties related to such incurrence, sale, transfer or other disposition, (iii) deduction of appropriate amounts approved by the Administrative Agent to be provided by any Borrower as a reserve, in accordance with GAAP, against any liabilities associated with such incurrence, sale, transfer or other disposition and retained by such Borrower after such incurrence, sale or other disposition, and (iv) payment of the outstanding principal amount of, and premium or penalty, if any, and interest on, any Indebtedness that is secured by a lien or other encumbrance on the assets in question and that is required to be repaid as a result of such incurrence, sale, transfer or other disposition.
1.1.51(b) “Note Purchase Agreement” has the meaning set forth in Section 1.1.56(a) hereof.
1.1.52 “Obligations” means any and all obligations of any of the Borrowers to the Administrative Agent or any Bank of every kind and description (including obligations of the Borrowers in respect of Letters of Credit and fees thereunder), direct or indirect,
absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising, regardless of how they arise or by what agreement or instrument they may be evidenced or whether evidenced by any agreement or instrument, and includes obligations to perform acts and to refrain from acting as well as obligations to pay money. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, the expiry date of such Letter of Credit and any related Letter of Credit agreement (and any maturity date hereunder) shall be deemed automatically extended through the date when any draw may be made thereunder, and the amount of any such draw shall be deemed to be an “Obligation” hereunder.
1.1.53 “PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
1.1.54(a) “Patriot Act” means Public Law 107-56 of the United States of America, United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001. 1.1.55 “person” or “Person” includes an individual, a company, a corporation, an association, a partnership, a joint venture, an unincorporated trade or business enterprise, a trust, an estate, or a government (national, regional or local) or an agency, instrumentality or official thereof.
1.1.56 “Plan” means, at any time, any “employee pension benefit plan” within the meaning of Section 3(2) of ERISA if either (i) such plan is maintained by any of the Borrowers or any member of the Controlled Group for employees of a Borrower or any member of the Controlled Group, or (ii) such plan is a Multi-Employer Plan or any other plan established or maintained pursuant to any arrangement under which more than one employer makes contributions, and to which (in either case) any of the Borrowers or any member of the Controlled Group is then making or accruing an obligation to make contributions or has within the preceding six (6) plan years made contributions.
1.1.56(a) “Private Placement” means the transactions contemplated by the Note Purchase Agreement dated as of June 1, 2004, among the Borrowers and the Purchasers parties thereto pursuant to which the Borrowers will issue and sell, and the Purchasers will purchase, the Senior Notes.
1.1.56(b) “Private Placement Documents” means that certain Note Purchase Agreement by and between UniFirst, as issuer, and certain other parties thereto (the “Note Purchase Agreement”), that certain Offering Memorandum dated as of May, 2004, the Senior Notes, and all other documentation and deliverables in connection therewith.
1.1.56(c) “Private Placement Term Sheet” means the Summary of Proposed Terms and Conditions for the Senior Notes dated May, 2004.
Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
1.1.58(a) “Responsible Officer” means the chief executive officer, president, chief financial officer, senior vice president, treasurer or assistant treasurer of a Borrower. Any document delivered hereunder that is signed by a Responsible Officer of a Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Borrower.
1.1.59 “Restricted Payment” means (i) any cash or property dividend, distribution or payment, direct or indirect, by any Borrower or any Subsidiary to any Person who at the time of such payment holds an equity interest in any Borrower or any Subsidiary, whether evidenced by a security or not, on account of such equity interest; other than regular compensation and bonuses paid to employees of the Borrowers and their Subsidiaries in the ordinary course of business and consistent with past practices, and other than dividends payable solely in shares of any class of capital stock to holders of that class, (ii) any payment on account of the purchase, redemption, retirement or other acquisition for value of any capital stock of any Borrower or its Subsidiary, or any other payment or distribution made in respect thereof, either directly or indirectly, and (iii) any management or similar fees paid or payable by any Borrower or any Subsidiary to any Affiliate of a Borrower.
1.1.60 “Revolving Credit Commitment” means, in relation to any Bank, the maximum liability from time to time of such Bank to make Revolving Credit Loans (or in the case of Revolving Credit Loans which are Swingline Loans, to make Swingline Loans) to the Borrowers upon the terms and subject to the conditions contained in this Agreement.
1.1.61 “Revolving Credit Loans” means, collectively, the loans (including Swingline Loans) up to a maximum aggregate principal amount of $125,000,000 made or to be made to the Borrowers by the Banks pursuant to this Agreement and subject to the limitations contained herein. The joint and several obligations of the Borrowers to repay the principal of the Revolving Credit Loans shall be evidenced by the Revolving Credit Notes.
1.1.62 “Revolving Credit Maturity Date” means September 2, 2007, or such earlier date as provided herein.
1.1.64 “Revolving Credit Notes” shall have the meaning set forth in Section 2.1 hereof.
1.1.66 “Royal Bank Agreement” means the letter agreement dated March 27, 2003 between Royal Bank and UniFirst Canada.
1.1.67 “Royal Bank Documents” means, collectively, (i) the Royal Bank Agreement, (ii) the Comfort Letter, dated February 15, 1991, executed and delivered by UniFirst to Royal Bank, (iii) the Guarantee and Subordination Agreement, dated March 4, 2003, executed and delivered by UniFirst to Royal Bank, and (iv) each of any other agreements, instruments or contracts executed and delivered by UniFirst Canada or any other Borrower in connection with the Royal Bank Agreement.
1.1.68(a) “Senior Notes” means the senior notes to be issued by UniFirst and the other Borrowers pursuant to the Note Purchase Agreement in an amount of $165 million which shall rank pari passu with the Revolving Credit Loans and all other senior unsecured Indebtedness of the Borrowers and any of their Subsidiaries.
1.1.68(b) “September 2003 Credit Agreement” means that certain Revolving Credit Agreement dated as of September 2, 2003, by and among the borrowers party thereto, Fleet National Bank, as agent, and the other banks party thereto.
1.1.68(c) “Stated Amount” means, with respect to each Letter of Credit, the maximum amount available to be drawn thereunder (whether or not such maximum amount is then in effect under such Letter of Credit).
1.1.69 “Subordinated Debt” means any Indebtedness of any of the Borrowers which is expressly subordinated and made junior in right of payment to the Obligations on terms and conditions satisfactory to the Administrative Agent and each Bank.
1.1.70 “Subsidiary” means, with reference to any person, any corporation, association, joint stock company, business trust or other similar organization of whose total capital stock or voting stock such person directly or indirectly owns or controls more than 50% thereof or any partnership or other entity in which such person directly or indirectly has more than a 50% interest or which is controlled directly or indirectly by such person.
1.1.70(a) “Swingline Commitment” means the obligation of the Swingline Lender to make Swingline Loans to the Borrowers in a maximum principal amount not exceeding at any time $10,000,000.
1.1.70(b) “Swingline Lender” means BOA (or any successor Administrative Agent) in its capacity as swingline lender hereunder.
1.1.70(c) “Swingline Loans” means, collectively, the loans up to a maximum aggregate principal amount of $10,000,000 made or to be made by the Swingline Lender to the Borrowers pursuant to Section 2.5.10 of this Agreement and subject to the limitations contained herein.
1.1.71 “Voting Shares” means, in relation to any particular corporation or other entity, any shares of any class in the capital of such corporation (or any other equity interests in the applicable entity) having by the terms thereof ordinary voting power (or other authority) to elect a majority of the board of directors (or other governing body) of such corporation or other entity.
1.1.72 “Welfare Plan” means any employee welfare benefit plan within the meaning of Section 3(1) of ERISA if such plan is maintained by any of the Borrowers or any member of the Controlled Group for employees of a Borrower or any member of the Controlled Group or if such plan is a Multi-Employer Plan or any other plan established or maintained pursuant to any arrangement under which more than one employer makes contributions, and to which (in either case) any of the Borrowers or any member of the Controlled Group is then making or accruing an obligation to make contributions or has within the preceding six (6) plan years made contributions.
1.2 Rules of Interpretation . For all purposes of this Agreement and the other Loan Documents, except as otherwise expressly provided herein or therein or unless the context otherwise requires:
(i) references to any person defined in this Section 1 refer to such person and its permitted successor in title and assigns or (as the case may be) his permitted successors, assigns, heirs, executors, administrators and other legal representatives;
(ii) references to any agreement, instrument or document defined in this Section 1 refer to such document as originally executed, or if subsequently varied or supplemented from time to time, as so varied or supplemented and in effect at the relevant time of reference thereto;
(iii) words importing the singular only shall include the plural and vice versa , and the words importing the masculine gender shall include the feminine gender and vice versa , and all references to dollars shall be United States dollars;
(iv) references to any law include any amendment or modification to such law;
(vi) all terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in the Commonwealth of Massachusetts, have the meanings assigned to them therein;
(vii) the words “herein,” “hereof,” “hereunder” and words of like import shall refer to this Agreement as a whole and not to any particular section or subdivision of this Agreement; and
(viii) accounting terms not otherwise defined in this Agreement or any of the other Loan Documents have the meanings assigned to them in accordance with GAAP.
SECTION 2. THE REVOLVING CREDIT LOANS; THE LETTERS OF CREDIT .
2.1.1 Subject to the terms and conditions set forth in this Agreement, each of the Banks severally agrees to lend to the Borrowers and the Borrowers may borrow, repay and reborrow from time to time between the Closing Date and the Revolving Credit Maturity Date, such amounts as requested by the Borrowers up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested and including all outstanding Swingline Loans) at any one time equal to such Bank’s Revolving Credit Commitment; provided , however , that the maximum aggregate principal amount of all Revolving Credit Loans (after giving effect to all amounts requested and all outstanding Swingline Loans), plus the aggregate Stated Amount of Letters of Credit outstanding at such time, plus the aggregate amount of all unreimbursed draws under outstanding Letters of Credit, shall not at any time exceed the aggregate amount of the Revolving Credit Commitments of the Banks; and provided , further , that at the time the Borrowers request a Revolving Credit Loan and after giving effect to the making thereof, no Event of Default has occurred and is continuing and no event has occurred which, with the giving of notice or the passage of time, or both, would constitute an Event of Default. The Revolving Credit Loans shall be made pro rata in accordance with each Bank’s Commitment Percentage. If the aggregate principal amount of the Revolving Credit Loans (including Swingline Loans), plus the aggregate Stated Amount of Letters of Credit outstanding at such time, plus the aggregate amount of any unreimbursed draws under Letters of Credit, shall at any time exceed the then Revolving Credit Maximum Amount, the Borrowers shall immediately pay to the Administrative Agent for the respective
accounts of the Banks the amount of such excess pro rata in accordance with their Commitment Percentages. Failure to make such payment on demand shall be an Event of Default hereunder.
2.1.2 All requests for Revolving Credit Loans shall be made upon the Borrowers’ irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than (i) 11:00 a.m. three Business Days prior to the requested date of any borrowing of any Eurodollar Rate Loans, (ii) 11:00 a.m. on the requested date of any borrowing of Base Rate Loans, and (iii) 1:00 p.m. on the requested date of any borrowing of Swingline Loans. Each telephonic notice by the Borrowers pursuant to this Section 2.1.2 must be confirmed promptly by delivery to the Administrative Agent of a written notice in the form of Exhibit 2.1.2 attached hereto, appropriately completed and signed by a Responsible Officer of the Borrowers. Each notice (whether telephonic or written) shall specify (i) the requested date of the borrowing (which shall be a Business Day), (ii) the principal amount of Revolving Credit Loans to be borrowed, (iii) whether the type of loan is to be a Base Rate Loan or a Eurodollar Rate Loan, and (iv) if applicable, the duration of the Interest Period with respect thereto. If the Borrowers fail to specify a type of Revolving Credit Loan in such Notice, then the applicable Revolving Credit Loans shall be made as Base Rate Loans. If the Borrower requests a borrowing of Eurodollar Rate Loans in any such notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
2.1.3 The obligations to repay the Revolving Credit Loans and to pay interest thereon shall be joint and several obligations of the Borrowers and shall be evidenced by separate Amended and Restated Revolving Credit Notes of the Borrowers to each Bank in or substantially in the form of Exhibit A attached hereto (the “Revolving Credit Notes”), with appropriate insertions; a Revolving Credit Note being payable to the order of each Bank in the principal amount equal to such Bank’s Revolving Credit Commitment and representing the joint and several obligation of the Borrowers to pay to such Bank the amount of such Bank’s Revolving Credit Commitment or, if less, the aggregate outstanding principal amount of all Revolving Credit Loans made by such Bank hereunder plus interest accrued thereon and all outstanding fees and charges, as set forth below.
2.2.1 Subject to the terms of Sections 2.5.9 hereof, the Borrowers may prepay outstanding Revolving Credit Loans in whole or in part at any time without premium or penalty, provided that the Borrowers shall pay accrued interest on the principal so prepaid to the date of such prepayment and all (if any) outstanding fees and charges. Amounts so paid and other amounts may be borrowed and reborrowed from time to time as provided in Section 2.1 hereof. Notwithstanding the foregoing, if a Revolving Credit Loan, or any portion thereof, bears interest at a rate determined by reference to the Euroloan Rate, the Borrowers may prepay any portion of the principal of such Revolving Credit Loan,
subject , however , to the provisions of Section 2.5.9 hereof. The Borrowers jointly and severally promise to pay on the Revolving Credit Maturity Date, and there shall become absolutely due and payable on the Revolving Credit Maturity Date, all outstanding Revolving Credit Loans and the Revolving Credit Notes, together with all unpaid interest accrued thereon and all fees and other amounts due hereunder. All of the other indebtedness evidenced by the Revolving Credit Notes shall, if not sooner paid, also be absolutely due and payable on the Revolving Credit Maturity Date. In the case of any partial payment of the Revolving Credit Notes, the total amount of such partial payment shall be allocable among the Revolving Credit Notes, subject to Section 8.4 hereof, pro rata in accordance with the Commitment Percentage of each Bank.
2.2.2 The Borrowers shall be required to make mandatory prepayments of the Revolving Credit Loans as set forth below (each a “Mandatory Prepayment”), such payments being due and payable on the day on which any Net Proceeds are received:
All Mandatory Prepayments shall be applied to the Revolving Credit Loans, until the Revolving Credit Loans have been paid in full (with a concurrent permanent reduction of the Revolving Credit Commitments, pro rata , by such Mandatory Prepayment amounts). Notwithstanding the foregoing, there shall be no concurrent permanent reduction of the Revolving Credit Commitments in the case of any Mandatory Prepayments made in connection with Net Proceeds received from any settlement from any insurance provider referenced in the foregoing clause (iv) of this Subsection 2.2.2. Mandatory Prepayments of Base Rate Revolving Credit Loans shall be made without any premium or penalty. Mandatory Prepayments of Euroloan Rate Amounts shall be made subject to the provisions of Section 2.5.9 hereof.
2.3 Reduction of Revolving Credit Commitment . The Borrowers shall have the right at any time and from time to time upon five (5) Business Days’ prior written notice to the Administrative Agent to reduce by $1,000,000 or an integral multiple thereof or terminate entirely the unused portion of the aggregate amount of the Revolving Credit Commitments, whereupon the Revolving Credit Commitments of the Banks shall be reduced pro rata in accordance with their respective Commitment Percentages of the amount specified in such notice, or, as the case may be, terminated. Promptly after receiving any notice of the Borrowers delivered pursuant to this Section 2.3, the Administrative Agent will notify the Banks of the substance thereof. Upon the effective date of any such reduction or termination, the Borrowers shall pay to the Administrative Agent for the account of the Banks the full amount of any Commitment Fee then accrued on the amount of the reduction. If the Borrowers reduce the Revolving Credit Commitment hereunder, any Commitment Fee payable thereafter under Section 2.5.2 hereof shall be payable with respect to the Revolving Credit Commitment as so reduced or terminated. No reduction of the Revolving Credit Commitment may be reinstated. The Borrowers shall have the right at any time and from time to time upon five (5) Business Days’ prior written notice to the Administrative Agent to reduce by $500,000 or an integral multiple thereof or terminate entirely the unborrowed portion of the Swingline Commitment. No reduction of the Swingline Commitment may be reinstated without the consent of the Swingline Lender.
2.4.1 If requested to do so by any Borrower, the Issuing Bank may, in its sole discretion, upon the terms and subject to the conditions of this Agreement, issue Letters of Credit for the account of the Borrowers, in such form and face amount as may be
requested by such Borrower and agreed to by the Issuing Bank; provided , however , that the Stated Amount of Letters of Credit outstanding at any time, plus the aggregate amount of all unreimbursed draws under such outstanding Letters of Credit, shall not at any time (i) exceed $30,000,000 in the aggregate, or (ii) when added to the then outstanding amount of Revolving Credit Loans (including any Swingline Loans) at such time, exceed the aggregate amount of the Revolving Credit Commitments of the Banks; and provided , further , that at the time any Borrower requests the issuance of a Letter of Credit and after giving effect to the issuance thereof, there has not occurred and is not continuing any Event of Default or any event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default. Upon the issuance of each Letter of Credit by the Issuing Bank, each Bank shall be deemed to automatically have purchased a participation in such Letter of Credit in accordance with its Commitment Percentage of the Revolving Credit Commitments and each Bank severally agrees that it shall be absolutely liable (absent the gross negligence or willful misconduct of the Issuing Bank), without regard to the occurrence of any Event of Default or any event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default or any other condition precedent whatsoever, to the extent of such Bank’s Revolving Credit Commitment, to reimburse the Issuing Bank on demand an amount equal to its Commitment Percentage of the amount of each draft paid by such Issuing Bank under each Letter of Credit to the extent that such amount is not reimbursed by the Borrowers pursuant hereto.
2.4.2 It is understood and agreed by the parties hereto that amounts drawn under the Letters of Credit shall become immediately due and payable by the Borrowers to the Issuing Bank through the Administrative Agent, and that all Letters of Credit shall in any event expire not later than fourteen (14) days prior to the Revolving Credit Maturity Date. If any Borrower requests the Issuing Bank to issue any Letter of Credit which would by its terms expire later than fourteen (14) days prior to the Revolving Credit Maturity Date, the Borrowers shall pledge cash or cash equivalents with the Administrative Agent for the benefit of the Banks in the face amount of such Letter of Credit plus any applicable fees and charges.
2.4.3 In order to evidence such Letters of Credit, the Borrowers will enter into with the Issuing Bank such agreements and execute such instruments and documents as the Issuing Bank requires, including, but not limited to, a letter of credit application and agreement on the Issuing Bank’s customary form.
2.4.5 The obligation of the Borrowers to reimburse the Issuing Bank for each unreimbursed draw under outstanding Letters of Credit shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
Upon receipt from the Issuing Bank thereof, the applicable Borrowers shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with any Borrower’s instructions or other irregularity, the applicable Borrower will promptly notify the Issuing Bank. The applicable Borrower shall be conclusively deemed to have waived any such claim against the Issuing Bank and its correspondents unless such notice is given as aforesaid. Notwithstanding the immediately preceding sentence, the applicable Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or other, damages suffered by such Borrower that were caused by the Issuing Bank’s gross negligence or willful misconduct.
2.4.6 Unless otherwise expressly agreed by the Issuing Bank and the Borrowers when a Letter of Credit is issued, (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each documentary Letter of Credit.
2.5.1 (a) Except to the extent the Borrowers are permitted and have chosen the alternative set forth in Section 2.5.9 hereof, the entire unpaid principal (not at the time overdue) of each Revolving Credit Loan shall bear interest at the annual rate of interest which shall at all times be equal to the Base Rate plus the Applicable Base Rate Margin in effect from time to time. For purposes of this Section 2.5.1, the “Applicable Base Rate Margin” shall be equal to 0.00%.
(b) Upon and after the occurrence of an Event of Default, and during the continuation thereof, the principal amount of the Revolving Credit Loans and Swingline Loans shall bear interest, to the extent permitted by law, at a rate per annum equal to two percent (2%) above the Base Rate plus the Applicable Base Rate Margin, which interest shall be compounded daily and payable on demand. For the purposes of this section, the Applicable Base Rate Margin that would otherwise be in effect shall automatically be increased to the highest margin.
(c) Except as provided in the preceding clause (b) or Section 2.5.9 hereof, interest on Revolving Credit Loans shall be payable quarterly in arrears on the last Business Day of each fiscal quarter of the Borrowers, commencing on the first such day following the date hereof, with the final payment at maturity of the Revolving Credit Loan. Any change in the Base Rate shall result in a change on the same day in the rate of interest to accrue from and after such day on the unpaid balance of principal of the Revolving Credit Loans.
2.5.2 The Borrowers jointly and severally agree to pay to the Administrative Agent for the account of the Banks, to be allocated between the Banks in accordance with their Commitment Percentages, a commitment fee computed at a rate per annum on the daily average unused amount of the Revolving Credit Commitments of all the Banks (it being acknowledged that the Stated Amount of outstanding Letters of Credit and outstanding Swingline Loans constitute usage of the Revolving Credit Commitments for purposes of the Commitment Fee), during each fiscal quarter or portion thereof, (A) from the Closing Date to the first Business Day of the fiscal month following delivery of the compliance certificate required to be delivered pursuant to Section 5.1(vi) for the fiscal quarter of the Borrowers ending May 28, 2004 is delivered to the Administrative Agent, equal to 0.225%, and (B) thereafter, determined in accordance with the following table:
and payable quarterly in arrears on the last Business Day of each fiscal quarter of the Borrowers, commencing on the first such date following the date hereof, and also payable on the date on which such Revolving Credit Commitment shall terminate in full hereunder. For purposes of determining the Commitment Fee, the Funded Debt Ratio will be tested quarterly, commencing on the first such date following the date hereof, based on the compliance certificate required to be delivered pursuant to Section 5.1(vi) with respect to such fiscal quarter. For purposes of determining the Commitment Fee, any rate change shall be effective on the first Business Day of the fiscal month following delivery of the compliance certificate required to be delivered pursuant to Section 5.1(vi) to the Administrative Agent, together with a notice to the Administrative Agent (which shall be verified by the Administrative Agent) specifying any change in the Commitment Fee, and if the Borrower has failed to deliver the compliance certificate required to be delivered pursuant to Section 5.1(vi), the Commitment Fee that would otherwise be in effect shall automatically be increased to the highest margin until such compliance certificate is delivered.
2.5.3 A per annum Letter of Credit fee shall be payable quarterly in arrears on the last Business Day of each fiscal quarter of the Borrowers to the Administrative Agent, for the ratable accounts of the Banks, on each Letter of Credit at a rate per annum equal to the Applicable Eurodollar Rate Margin applicable to Revolving Credit Loans then in effect multiplied by the maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit), along with, solely for the account of the Issuing Bank, such documentary issuing, processing and other fees as are customarily charged by the Issuing Bank on Letters of Credit (including, without limitation, a fronting fee equal to 0.125% per annum multiplied by the maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of
Credit) payable quarterly in arrears on the last Business Day of each fiscal quarter of the Borrowers).
2.5.4 The Borrowers jointly and severally agree to pay to the Administrative Agent and the Arranger fees in the amounts and at the times outlined in the Fee Letter.
2.5.5 If any present or future law, governmental rule, regulation, policy, guideline or directive (whether or not having the force of law) or the interpretation thereof by a court or governmental authority with appropriate jurisdiction affects the amount of capital required or expected to be maintained by the Administrative Agent or any Bank or any corporation controlling the Administrative Agent or any Bank and the Administrative Agent or any Bank determines that the amount of capital required to be maintained by it is increased by or based upon the existence of the Administrative Agent’s or any Bank’s commitment with respect to the Revolving Credit Loans or the Issuing Bank’s maintenance of any Letters of Credit, then the Administrative Agent may notify the Borrowers of such fact. To the extent that the costs of such increased capital requirements are not reflected in the Base Rate or the Letter of Credit fee payable hereunder, as the case may be, the Borrowers and the Administrative Agent or the applicable Bank shall thereafter attempt to negotiate in good faith, within thirty (30) days of the day on which the Borrowers receive such notice, an adjustment payable hereunder that will adequately compensate the Administrative Agent or such Bank in light of these circumstances. If the Borrowers and the Administrative Agent or such Bank are unable to agree to such adjustment within thirty (30) days of the date on which the Borrowers receive such notice, then commencing on the date of such notice or, if later, the effective date of any such increased capital requirement, the fees payable hereunder shall increase by an amount that will, in the Administrative Agent’s or such Bank’s reasonable determination, provide adequate compensation. The Administrative Agent and each Bank shall allocate such cost increases among its customers in good faith and on an equitable basis.
2.5.6 Anything hereinbefore to the contrary notwithstanding, if any present or future law (which expression, as used in this Agreement, includes statutes and rules and regulations thereunder and interpretations thereof by any competent court or by any governmental or other regulatory body or official charged with the administration or the interpretation thereof and requests, directives, instructions and notices at any time or from time to time heretofore or hereafter made upon or otherwise issued to the Administrative Agent or any Bank by any central bank or other fiscal, monetary or other authority, whether or not having the force of law) shall (i) subject the Administrative Agent or any Bank (or any payment made to the Administrative Agent or any Bank) to any tax, levy, impost, duty, charge, fee, deduction or withholding of any nature with respect to any Revolving Credit Loan, this Agreement, any Revolving Credit Note, any of the other Loan Documents, or the payment to the Administrative Agent or any Bank of any amounts due to it hereunder or thereunder, or (ii) materially change the basis of taxation of payments to the Administrative Agent or any Bank of the principal of or the interest on
any Revolving Credit Note or any other amounts payable to the Administrative Agent or any Bank under this Agreement or any of the other Loan Documents, or (iii) impose or increase or render applicable any special or supplemental special deposit or reserve or similar requirements or assessment against assets held by, or deposits in or for the account of, or any liabilities of (which expression includes any Letters of Credit), or loans by an office of the Administrative Agent or any Bank in respect of the transactions contemplated herein, or (iv) impose on the Administrative Agent or any Bank any other conditions or requirements with respect to this Agreement, any Revolving Credit Note, any of the other Loan Documents, any Revolving Credit Commitment or any Revolving Credit Loan, and the result of any of the foregoing is (a) to increase the cost to the Administrative Agent or any Bank of making, funding or maintaining all or any part of the Revolving Credit Commitment or the principal of any Revolving Credit Loan, or (b) to reduce the amount of principal, interest or other amount payable to the Administrative Agent or any Bank under this Agreement, any Revolving Credit Note or any other Loan Document, or (c) to require the Administrative Agent or any Bank to make any payment or to forego any interest or other sum payable under this Agreement, any Revolving Credit Note or any other Loan Document, the amount of which payment or foregone interest or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by the Administrative Agent or any Bank from the Borrowers under this Agreement, any Revolving Credit Note or any other Loan Document, then, and in each such case not otherwise provided for hereunder, the Borrowers shall, upon demand made by the Administrative Agent or the applicable Bank accompanied by calculations thereof in reasonable detail, pay (on an after-tax basis) to the Administrative Agent or such Bank such additional amounts as will be sufficient to compensate the Administrative Agent or such Bank for such additional cost, reduction, payment or foregoing interest or other sum, provided that the foregoing provisions of this sentence shall not apply in the case of any additional cost, reduction, payment or foregone interest or other sum resulting from any taxes charged upon or by reference to the overall net income, profits or gains of the Administrative Agent or any Bank.
2.5.8 The Borrowers authorize the Administrative Agent and each Bank, in the Administrative Agent’s or such Bank’s sole discretion, to charge to any deposit account which any Borrower may maintain with the Administrative Agent or such Bank the interest, fees, charges, taxes and expenses provided for in this Agreement or any other document executed or delivered in connection herewith, or to advance to the Borrowers and to charge to them as a Revolving Credit Loan a sum sufficient to pay such interest, fees, charges, taxes and expenses, with advice thereof thereafter sent to UniFirst’s chief financial officer in accordance with the Administrative Agent’s or such Bank’s customary practice.
(i) At the option of the Borrowers, so long as no Event of Default has occurred and is then continuing and no event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, has occurred and is then continuing, the Borrowers may elect from time to time prior to the Revolving Credit Maturity Date to have all or a portion of the unpaid principal amount of any Revolving Credit Loan bear interest during any particular Interest Period at the Euroloan Rate; provided , that any such portion of any Revolving Credit Loan shall be in an amount not less than $500,000 or some greater integral multiple of $100,000 with respect to any single Interest Period. There shall not be at any time more than a total of five (5) Eurodollar Rate Loans outstanding. Notwithstanding anything herein to the contrary, the maximum principal amount which the Borrowers may borrow under any possible combination of the Revolving Credit Loans (including Swingline Loans) shall not exceed the amount of the Revolving Credit Maximum Amount from time to time less (x) the Stated Amount of all Letters of Credit then issued and outstanding at such time and (y) any unreimbursed draws under outstanding Letters of Credit at such time. Any election by the Borrowers to have interest calculated at the Euroloan Rate shall be made by notice (which shall be irrevocable) to the Administrative Agent at least 3 Business Days prior to the first day of the proposed Interest Period, specifying the Euroloan Rate Amount and the duration of the proposed Interest Period (which must be for one, two, three or six months). Any such election of a Euroloan Rate shall lapse at the end of the expiring Interest Period unless extended by a further election notice as hereinbefore provided. Except as otherwise provided herein, each Euroloan Rate Amount shall bear interest during each Interest Period relating thereto at an annual rate (the “Euroloan Rate”) equal to the Eurodollar Rate plus the Applicable Eurodollar Rate Margin (as hereinafter defined). Interest on each Euroloan Rate Amount shall be payable (a) on the last day of each Interest Period relating thereto, or (b) if any Interest Period is longer than three months, on the last day of each three-month period following the commencement of such Interest Period and on the last day of such Interest Period.
Notwithstanding the foregoing, the Borrowers may not select an Interest Period which extends beyond the Revolving Credit Maturity Date.
For purposes of this Section 2.5.9, the “Applicable Eurodollar Rate Margin” shall be equal to (A) from the Closing Date to the first Business Day of the fiscal month following delivery of the
compliance certificate required to be delivered pursuant to Section 5.1(vi) for the fiscal quarter of the Borrowers ending May 28, 2004 is delivered to the Administrative Agent, a percentage equal to 1.00%, and (B) thereafter, the percentage determined in accordance with the following table:
For purposes of determining the Applicable Eurodollar Rate Margin, the Funded Debt Ratio will be tested quarterly, commencing with the fiscal quarter of the Borrowers ending May 28, 2004, based on the compliance certificate required to be delivered pursuant to Section 5.1(vi) with respect to such fiscal quarter. For purposes of determining the interest rate for any Interest Period hereunder, any interest rate change shall be effective on the first Business Day of the fiscal month following delivery of the compliance certificate required to be delivered pursuant to Section 5.1(vi) to the Administrative Agent, together with a notice to the Administrative Agent (which shall be verified by the Administrative Agent) specifying any change in the Applicable Eurodollar Rate Margin, and if the Borrower has failed to deliver the compliance certificate required to be delivered pursuant to Section 5.1(vi), the Applicable Eurodollar Rate Margin that would otherwise be in effect shall automatically be increased to the highest margin until such compliance certificate is delivered.
(ii) The Administrative Agent shall forthwith upon determining any Euroloan Rate provide notice thereof to the Borrowers and the
Banks. Each such notice shall be conclusive and binding upon the Borrowers.
(iii) If, with respect to any Interest Period, the Administrative Agent is unable to determine the Euroloan Rate relating thereto, or adverse or unusual conditions in or changes in applicable law relating to the applicable Eurodollar interbank market make it illegal or, in the reasonable judgment of the Administrative Agent or any of the Banks as such Bank shall advise the Administrative Agent, impracticable, to fund therein the Euroloan Rate Amount or make the projected Euroloan Rate unreflective of the actual costs of funds therefor to the Administrative Agent or any such Bank, or if it shall become unlawful for the Administrative Agent or any such Bank to charge interest on the Revolving Credit Loan on a Euroloan Rate basis, then in any of the foregoing events the Administrative Agent shall so notify the Borrowers and interest will be calculated and payable in respect of such projected Interest Period (and thereafter for so long as the conditions referred to in this sentence shall continue) by reference to the Base Rate in accordance with Section 2.5.1 hereof.
(iv) If any Interest Period would otherwise end on a day which is not a Eurodollar Business Day, that Interest Period shall end on the Eurodollar Business Day next preceding or next succeeding such day as determined by the Administrative Agent in accordance with its usual practices and notified to the Borrowers at the beginning of such Interest Period.
(v) The Borrowers may prepay a Eurodollar Rate Loan only upon at least three (3) Business Days prior written notice to the Administrative Agent (which notice shall be irrevocable), and, except as permitted by payment of the applicable “yield maintenance fee” (as defined below), any such prepayment shall occur only on the last day of the Interest Period for such Eurodollar Rate Loan. Borrower shall pay to Administrative Agent for the account of the Banks, upon request of any Bank, such amount or amounts as shall be sufficient (in the reasonable opinion of such requesting Bank) to compensate it for any loss, cost, or expense incurred as a result of: (i) any payment of a Eurodollar Rate Loan on a date other than the last day of the Interest Period for such Loan; (ii) any failure by Borrowers to borrow a Eurodollar Rate Loan on the date specified by Borrowers’ written notice; (iii) any failure by Borrowers to pay a Eurodollar Rate Loan on the date for payment specified in Borrowers’ written notice. Without limiting the foregoing, Borrowers shall pay to Administrative Agent for the
account of such requesting Bank a “yield maintenance fee” in an amount computed by such requesting Bank as follows: The current rate for United States Treasury securities (bills on a discounted basis shall be converted to a bond equivalent) with a maturity date closest to the term chosen pursuant to the Euroloan Rate Election as to which the prepayment is made, shall be subtracted from the Euroloan Rate in effect at the time of prepayment. If the result is zero or a negative number, there shall be no yield maintenance fee. If the result is a positive number, then the resulting percentage shall be multiplied by the amount of the principal balance being prepaid. The resulting amount shall be divided by 360 and multiplied by the number of days remaining in the term chosen pursuant to the Euroloan Rate Election as to which the prepayment is made. Said amount shall be reduced to present value calculated by using the above referenced United States Treasury securities rate and the number of days remaining in the term chosen pursuant to the Euroloan Rate Election as to which prepayment is made. The resulting amount shall be the yield maintenance fee due to the requesting Bank upon the prepayment of a Eurodollar Rate Loan. Each reference in this paragraph to “Euroloan Rate Election” shall mean the election by Borrower of the Euroloan Rate. If by reason of an Event of Default, Administrative Agent elects to declare the Notes to be immediately due and payable, then any yield maintenance fee with respect to a Eurodollar Rate Loan shall become due and payable in the same manner as though Borrower had exercised such right of prepayment.
The Borrowers shall pay to the Administrative Agent for the account of such requesting Bank the amount of loss, computed in accordance with the foregoing formula, upon presentation to the Borrowers by such requesting Bank (with a copy to the Administrative Agent) of a statement setting forth such requesting Bank’s calculation of the amount of such loss, which notice shall be conclusive and binding upon the Borrowers in the absence of manifest error.
(i) Availability . Subject to the terms and conditions of this Agreement, the Swingline Lender agrees, in its sole and absolute discretion, to make Swingline Loans to the Borrowers from time to time from the Closing Date through, but not including, the Swingline Termination Date, provided that any such Swingline Loan shall be in an amount not less than $100,000; and further provided , that the aggregate principal amount of all outstanding Swingline Loans (after giving effect to any amount requested) at any time, shall not exceed the lesser of (x) the aggregate Revolving Credit
Commitments of all the Banks less the sum of (A) all outstanding Revolving Credit Loans (including Swingline Loans) at such time, (B) the aggregate Stated Amount of Letters of Credit outstanding at such time and (C) the aggregate amount of all unreimbursed draws under outstanding Letters of Credit at such time and (y) the Swingline Commitment at such time. Swingline Loans hereunder may be requested for a period of up to 7 days and shall be repaid and reborrowed in accordance with the terms hereof. The Swingline Lender shall initiate the transfer of funds representing the Swingline Loan to the Borrowers by 4:00 p.m. (Boston, Massachusetts time) on the Business Day of the requested borrowing, so long as the Swingline Loan has been requested by the Borrowers no later than 12:00 p.m. (Boston, Massachusetts time) on such Business Day.
(ii) Repayment . The Borrowers shall repay the outstanding principal amount of each Swingline Loan on the earliest to occur of: (x) the seventh (7 th ) day after the date on which such Swingline Loan was made, (y) the Swingline Termination Date or (y) (i) if it shall receive notice of demand for payment from the Swingline Lender prior to 12:00 p.m. (Boston, Massachusetts time) on any Business Day, on the Business Day next succeeding such Business Day and (ii) if it shall receive such notice after 12:00 p.m. (Boston, Massachusetts time) on any day, on the Business Day which is 2 Business Days after it shall receive such notice.
(iii) Refunding and Conversion of Swingline Loans to Revolving Credit Loans .
(A) Swingline Loans shall be refunded by the Banks on demand by the Swingline Lender, in which case the Borrowers shall be deemed to have requested on such date of demand a Revolving Credit Loan in the principal amount of such Swingline Loan bearing interest with reference to the Base Rate plus the Applicable Base Rate Margin (unless the Borrowers have elected the Eurodollar Rate with respect thereto in accordance with the terms hereof). Such refundings of the Swingline Loan and/or fundings of such Revolving Credit Loans shall be made by the Banks in accordance with their respective Commitment Percentage and shall thereafter be reflected as Revolving Credit Loans of the Banks on the books and records of the Administrative Agent. Each Bank shall fund its respective Commitment Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to the Swingline Lender upon demand by the Swingline Lender but in no event later than 2:00 p.m. (Boston, Massachusetts time) on the next succeeding Business Day after such demand is made. No Bank’s obligation to fund its respective Commitment Percentage of a Swingline Loan shall be affected by any other Bank’s failure to fund its Commitment Percentage of a Swingline Loan, nor shall any Bank’s Commitment Percentage be increased as a result of any such failure of any other Bank to fund its Commitment Percentage. To the extent any Bank does not fund its respective Commitment Percentage of any Revolving Credit Loan deemed to be made to the Borrowers pursuant to this Section, the Borrower shall repay such amounts to the Swingline Lender as if such Loan were a Revolving Credit Loan for which a Bank did not advance its share to the Administrative Agent.
(B) If, at the time the Borrowers receive notice of a demand for repayment of a Swingline Loan from the Swingline Lender, the aggregate principal amount of all Revolving Credit Loans outstanding, plus the aggregate principal amount of all Swingline Loans outstanding (including the Swingline Loan for which demand for payment is then made by the Swingline Lender), plus the aggregate Stated Amount of Letters of Credit outstanding at such time, plus the aggregate of all unreimbursed draws under outstanding Letters of Credit, equals or exceeds the aggregate amount of the Revolving Credit Commitments of all of the Banks at such time, the Borrowers shall repay such Swingline Loan in accordance with Section 2.5.10(ii). The Borrowers hereby authorize the Administrative Agent to charge any account maintained with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent amounts received from the Banks are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded. If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrowers from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Banks that have reimbursed the Swingline Lender pursuant to clause (A) above in accordance with their respective ratable share.
(C) Each Bank acknowledges and agrees that, absent the gross negligence or willful misconduct of the Swingline Lender, its obligation to refund Swingline Loans with Revolving Credit Loans in accordance with the terms of this Section 2.5.10 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Section 4. Further, each Bank agrees and acknowledges that if prior to the refunding of any outstanding Swingline Loans pursuant to this Section 2.5.10, one of the events described in Section 6.1.(vi), (vii) or (viii) shall have occurred, each Bank will, on the date the applicable Revolving Credit Loan would have been made pursuant to Section 2.5.10 hereof, purchase an undivided participating interest in the Swingline Loan to be refunded in an amount equal to its Commitment Percentage of the aggregate amount of such Swingline Loan. Each Bank will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its participation. Whenever, at any time after the Swingline Lender has received from any Bank such Bank’s participating interest in a Swingline Loan, the Swingline Lender receives any payment on account thereof, the Swingline Lender will distribute to such Bank its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Bank’s participating interest was outstanding and funded).
(D) Each Bank’s Commitment Percentage applicable to any Swingline Loan shall be identical to its Commitment Percentage applicable to Revolving Credit Loans.
(E) The Swingline Loans shall be evidenced by an Amended and Restated Swingline Note of the Borrowers to the Swingline Lender in or substantially
in the form of the Amended and Restated Revolving Credit Notes (as amended from time to time, the “Swingline Note”), with appropriate insertions.
The Borrowers hereby jointly and severally represent and warrant to the Administrative Agent and each Bank as follows:
3.1 Organization and Qualification . Each of the Borrowers (i) is a corporation, limited partnership or limited liability company, as applicable, duly organized, validly existing and in good standing under the laws of its jurisdiction of organization as indicated on Exhibit B attached hereto; (ii) has all requisite corporate or other organizational power and authority to own or to hold under lease its property and conduct its business as now conducted and as presently contemplated; and (iii) is duly qualified and in good standing in each jurisdiction (which jurisdictions are listed on Exhibit B attached hereto) where the nature of its properties or its business (present or proposed) requires such qualification and in which failure to qualify would have a material and adverse effect on the condition (financial or otherwise), properties, business or results of operations of the Borrowers taken as a whole.
3.2 Authority . The execution, delivery and performance by each Borrower of each of the Loan Documents to which such Borrower is or is to become a party (including the making of the borrowings contemplated by this Agreement) are within the corporate, limited partnership or limited liability company, as applicable, authority of such Borrower, have been duly authorized by all necessary corporate, limited partnership and limited liability company, as the case may be, proceedings on the part of such Borrower, and do not and will not (i) contravene any provision of law, its charter documents, its by-laws or other governing documents (each as in effect from time to time), or (ii) contravene any provisions of, or constitute an Event of Default hereunder or a default under, or an event which with the lapse of time or the giving of notice, or both, would constitute an Event of Default hereunder or a default under any other agreement, instrument, judgment, order, decree, permit, license or undertaking binding upon or applicable to such Borrower or any of its properties (except (i) with respect to agreements relating to Indebtedness for borrowed money, defaults under any such agreements with principal obligations of $5,000,000 or less, or (ii) with respect to any other agreement, instrument, judgment, order, decree, permit, license or undertaking, any such default as would not materially and adversely affect the condition (financial or otherwise), properties, business or results of operations of the Borrowers taken as a whole), or result in the creation of any mortgage, pledge, security interest, lien, encumbrance or charge upon any of the properties or assets of such Borrower (except for any such mortgage, pledge, security interest, lien, encumbrance or charge as would not materially and adversely affect the condition (financial or otherwise), properties, business or results of operations of the Borrowers taken as a whole), or (iii) require any waivers, consents or approvals by any of the creditors or trustees for creditors of such Borrower (except such as will be duly obtained on or prior to the Closing Date and will be in full force and effect
on and as of such date), or (iv) require any consents or approvals by any shareholders, members or partners of such Borrower (except such as will be duly obtained on or prior to the Closing Date and will be in full force and effect on and as of such date), or (v) require any approval, consent, order, authorization or license by, or giving notice to, or taking any other action with respect to, any governmental or regulatory authority or agency, except those actions that have been taken or will be taken prior to the Closing Date, under any provision of any applicable law.
3.3 Valid Obligations . The agreements and obligations of each Borrower contained in each of the Loan Documents to which such Borrower is a party constitute legal, valid and binding obligations of such Borrower enforceable against such Borrower in accordance with their respective terms.
3.4 Approvals and Consents . The execution, delivery and performance of each of the Loan Documents to which each Borrower is or is to become a party do not require any approval or consent of, or filing or registration with, any governmental or other agency or authority or any other person, except as disclosed on Exhibit B attached hereto.
3.5 Title to Properties; Absence of Liens . As of the date of this Agreement, each of the Borrowers has good and marketable title to all of its respective properties, assets and rights of every name and nature now purported to be owned by it, including without limitation the Business and the properties, assets and rights reflected in the Initial Financial Statement, except as otherwise noted in the Annual Report and except with respect to such properties, assets and rights which are not material to the condition (financial or otherwise), properties, business or results of operations of the Borrowers taken as a whole, in each case free from all liens, charges and encumbrances whatsoever except for insubstantial defects in title which do not materially detract from the value or impair the use of the affected properties and liens, charges or encumbrances permitted under Section 5.7 hereof, and as of the date of this Agreement, its Obligations under the Loan Documents rank at least pari passu with all its other Indebtedness, including, without limitation, the Senior Notes, except as set forth on Exhibit B attached hereto. The rights, properties and other assets presently owned, leased or licensed by any of the Borrowers and described elsewhere in this Agreement include all rights, properties and other assets necessary to permit the Borrowers to conduct their respective businesses in all material respects in the same manner as their businesses have been conducted prior to the date hereof. Except with respect to liens, charges or encumbrances permitted under Section 5.7 hereof, there is no financing statement, security agreement, chattel mortgage, real estate mortgage or other document filed or recorded with any filing records, registry or other public office, that purports to cover, affect or give notice of any present or possible future Encumbrance on any assets or property of the Borrower or any of its Subsidiaries or any rights relating thereto.
3.6 Compliance . Each of the Borrowers has all necessary permits, approvals, authorizations, consents, licenses, franchises, registrations and other rights and privileges to allow it to own and operate its business without any violation of law or the rights of
others (except for any such right or privilege as would not materially and adversely affect the condition (financial or otherwise), properties, business or results of operations of the Borrowers taken as a whole); and each of the Borrowers is duly authorized, qualified and licensed under and in compliance with all applicable laws, regulations, authorizations and orders of public authorities (except where the failure to comply would not materially and adversely affect the condition (financial or otherwise), properties, business or results of operations of the Borrowers taken as a whole; provided , that this Section 3.6 shall not apply with respect to any rights, privileges, laws, regulations, authorizations or orders the subject matter of which is covered by any other representation or warranty contained herein). Without limitation of the foregoing, each of the Borrowers is in compliance with, and neither the entering into of the Loan Documents or the use of the proceeds of the Revolving Credit Loans will violate: any law, rule or regulation relating to anti-terrorism or money laundering, including the Anti-Terrorism Order, the Patriot Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.
3.7 Financial Statements . The Borrowers have furnished to the Administrative Agent and the Banks (i) the Consolidated balance sheet and statement of income of the Borrowers as at August 30, 2003 for the fiscal year then ended, and related footnotes, audited by Ernst & Young LLP (the “2003 Financials”), (ii) the Consolidated balance sheet and statement of income of the Borrowers as at February 28, 2004 and for the six-month period then ended (the “February 2004 Financials”), and (iii) the Consolidated balance sheet of the Borrowers on a pro forma basis after giving effect to the Private Placement as at the Closing Date (the “Closing Balance Sheet”, and together with the 2003 Financials and the February 2004 Financials, the “Initial Financial Statement”), in each case prepared in accordance with GAAP (subject, in the case of (ii) and (iii) only, to normal changes for year-end audit adjustments which would not be in any case, or in the aggregate, materially adverse) and fairly presenting the financial position of the Borrowers as at the close of business on such dates and the results of operations of the Borrowers for the twelve-month and six-month periods, respectively, then ended. The Borrowers have also furnished to the Administrative Agent and the Banks projections of the Borrowers’ future results of operations for the periods ending on August 28, 2004, August 27, 2005, and August 26, 2006, each on a pro forma basis and all of which take into account the Private Placement and all of which were made in good faith and based on assumptions which the Borrowers believed reasonable when made, it being recognized by the Banks that projections as to future results are not to be viewed as facts and that the actual results during the period or periods covered by the projections may differ from the projected results. The Administrative Agent and the Banks agree to keep confidential, in the manner each of them usually does with its respective customers, any and all of the information obtained from such projections, provided that such information may be available for inspection or examination by (i) any court or governmental regulatory authority having jurisdiction over the Administrative Agent or any Bank, (ii) any independent auditors of the Administrative Agent or any Bank, and (iii) any potential Assignees and Participants. At the date hereof, the Borrowers have no Indebtedness or
other liabilities, debts or obligations involving amounts material to the Borrowers taken as a whole, whether accrued, absolute, contingent or otherwise, and whether due or to become due, including, but not limited to, liabilities or obligations on account of taxes or other governmental charges, that are not set forth on Exhibit C attached hereto. Since the date of the Initial Financial Statement there have been no changes in the assets, liabilities, financial condition or business of the Business the effect of which has, individually or in the aggregate, been materially adverse, except as set forth on Exhibit B attached hereto. Since the |
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