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EXHIBIT 4(f)
TERM LOAN/BANKERS' ACCEPTANCE AGREEMENT
THIS TERM LOAN/BANKERS' ACCEPTANCE AGREEMENT is made and entered into this
1st day of February, 1996, by and between The Xxxxxxx-Xxxxxxxx Company, a
corporation organized and existing under the laws of the State of Ohio
("Borrower"), and SunTrust Bank, Atlanta, a Georgia banking corporation, and
its successors and assigns ("Bank").
W I T N E S S E T H:
WHEREAS, Borrower has requested Bank to establish a three (3) year
$50,000,000 term loan/bankers' acceptance facility to finance working capital,
capital expenditures, and other general corporate purposes, including, but not
limited to, acquisitions of stock, assets or other ownership interests of
Borrower; and
WHEREAS, Bank is willing to establish said term loan/bankers' acceptance
facility in the foregoing amount, subject to the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual promises contained herein the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meaning:
"ACCEPTANCES" shall have the meaning set forth in Section 3.1 hereof.
"ACCEPTANCE OBLIGATIONS" shall mean the aggregate outstanding face amount of
all Acceptances (whether matured or unmatured) in respect of which no
payment, conversion or deposit has been made.
"ACCEPTANCE RATE" shall mean for any Interest Period the all-in discount rate
(including any acceptance commission of Bank) equal to the equivalent of
LIBOR, plus 0.20% per annum.
"AGREEMENT" shall mean this Term Loan/Bankers' Acceptance Agreement, either as
originally executed or as it may be from time to time supplemented, amended,
renewed or extended.
"AGREEMENT DATE" shall mean February 1, 1996.
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"ALTERNATE BASE RATE" shall mean the higher of: (i) the rate of interest in
effect for any given day as publicly announced from time to time by Bank as
its "reference rate" and (ii) the Federal Funds Rate plus 50 basis points.
Any change by Bank of its "reference rate" shall take effect at the opening
of business on the day specified in the public announcement of such change.
"ALTERNATE BASE RATE LOAN" shall mean the Term Loan bearing interest at the
Alternate Base Rate.
"BANK" shall mean SunTrust Bank, Atlanta and any successor or assign thereto.
"BANKING DAY" shall mean a day, other than a Saturday or Sunday, on which
Atlanta banks are open for the transaction of business.
"BUSINESS DAY" shall mean, with respect to a LIBOR Loan, any day other than a
Saturday, Sunday or a day on which commercial banks are required or
authorized to close of domestic or international business, including dealings
in Dollar deposits, in Atlanta, Georgia or London, England and with respect
to all other matters, any day other than a Saturday, Sunday or a day on which
commercial banks are required or authorized to close in Atlanta, Georgia.
"CONSOLIDATED NET WORTH" shall mean the excess of the net book value of the
assets of Borrower and its Consolidated Subsidiaries over all of their
liabilities (other than Subordinated Indebtedness), as determined on a
consolidated basis in accordance with generally accepted accounting
principles as applied by Borrower in the calculation of such amount in
Borrower's then most recent financial statements furnished to its
stockholders, plus the aggregate value of all treasury stock purchased after
the Agreement Date (at cost) by Borrower (to the extent that the aggregate
value of such treasury stock for purposes of this calculation does not exceed
Two Hundred Fifty Million Dollars ($250,000,000)). The calculation of
Consolidated Net Worth shall exclude any amounts which would otherwise be
required to be included therein as a result of the future adoption by the
Financial Accounting Standards Board of any policy, statement, rule or
regulation requiring Borrower to record an accumulative liability on its
Financial Report(s).
"CONSOLIDATED SUBSIDIARY" shall mean, at any particular time, every Subsidiary
which is consolidated in Borrower's financial statements contained in its
then most recent Financial Report.
"DEBT" shall mean, collectively, all indebtedness at any one time outstanding
hereunder and owed by Borrower to Bank pursuant to this Agreement and
includes the principal of and interest on the Term Note, any Acceptance
Obligations and any funding indemnities incurred under Section 4.4 of this
Agreement.
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"EVENT OF DEFAULT" shall mean any of the events referred to in Article VII
hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Banking Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is not so
published on any such preceding Banking Day, the rate for such day shall be
the arithmetic mean, as determined by Bank, of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York
time) on such day by each of three leading brokers of Federal funds
transactions in New York City selected by Bank.
"FINANCIAL REPORT" shall mean the annual or periodic report prepared in
accordance with generally accepted accounting principles, except as otherwise
indicated, filed by Borrower with the Securities and Exchange Commission (or
any governmental body or agency succeeding to the functions of such
Commission) on Form 10-K or 10-Q pursuant to the Securities Exchange Act of
1934 ("Exchange Act"), as then in effect (or any comparable forms under
similar Federal statutes then in force), and the most recent financial
statements furnished by Borrower to its stockholders (which annual financial
statement shall be certified by Borrower's independent certified public
accountants).
"INDEMNIFIED PERSONS" shall have the meaning set forth in Section 3.4 hereof.
"INTEREST PERIOD" shall mean, with respect to the Term Loan, a period of 3
months; provided, that (i) the first and last day of an Interest Period must
be a Quarter Date, and (ii) no Interest Period shall extend beyond the
Maturity Date.
"LIBOR" shall mean with respect to each Interest Period for a LIBOR Loan, the
rate per annum equal to the quotient of (i) the rate offered for deposits in
Dollars of amounts equal or comparable to the principal amount of such LIBOR
Loan offered for a term comparable to such Interest Period, which rate
appears on the Telerate Page 3750 as of 11:00 A.M. (London, England) time,
two (2) Business Days prior to the first day of such Interest Period;
provided that, if no such offered rates appear on such page, the rate used
for such Interest Period shall be the arithmetic average (rounded upward, if
necessary, to the next higher 1/16th of 1%) of rates offered to Bank by not
less than two major banks in London, England at approximately 10:00 A.M.
(Atlanta, Georgia time), two (2) Business Days prior to the first day of such
Interest Period for deposits in Dollars in the London interbank market for a
period comparable to such Interest Period in an amount comparable to the
principal amount of such LIBOR Loan, (ii) divided by a number equal to 1.00
minus the Reserve Percentage. The rate so determined in accordance herewith
shall be rounded upwards to the nearest whole multiple of 1/100th of 1%.
"Telerate Page 3750" shall mean the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service
or another service as may be
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nominated by the British Bankers' Association as the information vendor for
the purpose of displaying British bankers' Association Interest Settlement
Rate for Dollars).
"LIBOR LOAN" shall mean the Term Loan bearing interest based on LIBOR.
"LOAN DOCUMENTS" shall mean and include, as the context requires, this
Agreement, the Term Note, the Acceptances and any and all other instruments,
agreements, documents and writings contemplated hereby or executed in
connection herewith.
"MATERIAL" shall mean the measure of a matter of significance which shall be
determined as being an amount equal to five percent (5%) or more of
Borrower's Consolidated Net Worth.
"MATURITY DATE" shall mean February 5, 1999, or such later date as the parties
may agree that the unpaid principal and all accrued interest and all other
amounts due hereunder shall be paid in full.
"PLAN" shall mean any employee pension benefit plan within the meaning of
Section 3(2) of the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA") sponsored and maintained by Borrower, any
Consolidated Subsidiary, or of any member of a controlled group of
corporations, as the term "controlled group of corporations" is defined in
Section 1563 of the Internal Revenue Code of 1986, as amended, of which
Borrower or any Consolidated Subsidiary is a part, for employees thereof.
"POSSIBLE DEFAULT" shall mean an event, condition or thing known to Borrower
which constitutes, or which with the lapse of any applicable grace period or
the giving of notice or both would constitute, any Event of Default and which
has not been appropriately waived by Bank in writing or fully corrected prior
to becoming an Event of Default.
"QUARTER DATE" shall mean the fifth day of each February, May, August and
November beginning May 5, 1996.
"REPORTABLE EVENT" shall mean a reportable event as that term is defined in
Title IV of ERISA except actions of general applicability by the Secretary of
Labor under Section 110 of ERISA.
"RESERVE PERCENTAGE" shall mean, for any day, the stated maximum rate
(expressed as a decimal) of all reserves required to be maintained with
respect to liabilities or assets consisting of or including"eurocurrency
liabilities", as prescribed by Regulation D of the Board of Governors of the
Federal Reserve System (or by any other governmental body having jurisdiction
with respect thereto), including without limitation any basic, marginal,
emergency, supplemental, special, transitional or other reserves, the rate so
determined to be rounded upward to the nearest whole multiple of 1/100 of 1%.
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"SUBORDINATED INDEBTEDNESS" shall mean indebtedness which has been subordinated
(by written terms or agreement being in form and substance reasonably
satisfactory to Bank) in favor of the prior payment in full of Borrower's
Debt to Bank.
"SUBSIDIARY" shall mean an existing or future corporation(s), the majority of
the outstanding capital stock or voting power, or both, of which is (or upon
the exercise of all outstanding warrants, options and other rights would be)
owned at the time in question by Borrower or by another such corporation(s)
or by any combination of Borrower and such corporation(s).
"TERM LOAN" shall have the meaning set forth in Section 2.1 hereof.
"TERM NOTE" shall mean the promissory note executed by Borrower payable to the
order of Bank, in substantially the form of Exhibit A attached hereto,
evidencing the Term Loan, either as originally executed or as it may from
time to time be supplemented, modified, amended, renewed or extended.
"VOTING STOCK" shall mean stock of a corporation of a class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of such corporation (irrespective of
whether or not the stock of any other class or classes shall have or might
have voting power by reason of the happening of any contingency).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" shall mean each Consolidated Subsidiary
all of whose outstanding stock, other than directors' qualifying shares,
shall at the time be owned by Borrower and/or by one or more Wholly-Owned
Consolidated Subsidiaries.
ARTICLE II
AMOUNT AND TERMS OF TERM LOAN/BANKERS' ACCEPTANCE FACILITY
SECTION 2.1. TERM LOAN. Bank agrees, on the terms and subject to the
conditions contained herein, to make a term loan ("Term Loan") to
Borrower on the Agreement Date in the principal amount of Fifty Million and
00/100 Dollars ($50,000,000). The Term Loan shall be evidenced by the Term
Note or by Acceptances if funded at the Acceptance Rate; provided, that at no
time shall a LIBOR Loan and Acceptances be outstanding hereunder
simultaneously. On the Agreement Date, Bank shall credit the amount of the
Term Loan in immediately available funds to an account of Borrower with Bank
or otherwise transfer said amount in immediately available funds in accordance
with Borrower's instructions.
SECTION 2.2. INTEREST. Interest shall accrue on the unpaid principal amount
of the Term Loan at the following rates per annum: (a) LIBOR for an Interest
Period of three months, plus 0.20% per annum or (b) the Acceptance Rate,
as the case may be.
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SECTION 2.3. INTEREST PAYMENT DATES. Interest on the Term Loan shall be
payable (a) on a Quarter Date and (b) on the Maturity Date.
SECTION 2.4. REPAYMENT OF THE TERM LOAN. Borrower shall repay the principal
amount of the Term Loan on the Maturity Date.
SECTION 2.5. OPTIONAL PREPAYMENTS. At the option of Borrower, Borrower may
prepay the Term Loan, in whole or in part from time to time, without premium or
penalty, but with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, that (a) each partial prepayment shall be
in the minimum principal amount of $1,000,000; (b) each partial prepayment of
the Term Loan may occur only on the last day of the then current Interest
Period with respect to a LIBOR Loan or on the maturity date of the relevant
Acceptances; and (c) each partial prepayment shall be applied to installments
of principal in the inverse order of their maturities.
SECTION 2.6. SELECTION OF SUCCESSIVE INTEREST RATES; CONVERSION. Bank may
request, and Borrower shall agree if so requested, that on the last day of any
Interest Period the Term Loan be continued as a LIBOR Loan or be converted into
Acceptances in the same principal amount or in a principal amount as reduced by
any repayment made pursuant to Section 2.4 hereof, or that on the maturity date
of any Acceptances the Term Loan be continued as Acceptances or be converted
into a LIBOR Loan in the same principal amount or in a principal amount as
reduced by any repayment made pursuant to Section 2.4 hereof, it being agreed
by Borrower that this right of Bank to select the interest rates/funding
mechanics on the Term Loan hereunder is a part of the consideration for
entering into this Agreement and the other Loan Documents. Notwithstanding the
foregoing, if an Event of Default shall exist at the end of an Interest Period
applicable to a LIBOR Loan or on the maturity date of any Acceptances, such
outstanding LIBOR Loan or such outstanding Acceptances shall be converted to an
Alternate Base Rate Loan.
ARTICLE III
ACCEPTANCES
SECTION 3.1. ACCEPTANCES. In the event Bank elects to fund the Term Loan with
Acceptances, Bank may in its sole discretion in each instance as provided in
this Agreement, accept, in accordance with their tenor, drafts denominated in
minimum denominations of $1,000,000 or such amounts as Bank may require, drawn
on Bank by Borrower in accordance with Section 3.2(b) hereof and payable to the
order of Bank ("Acceptances"). Such drafts presented for acceptance shall be
equal to the principal amount of the Term Loan then outstanding plus an amount
equal to the amount of interest that will accrue for the term of the then
current Interest Period. Such interest shall be calculated at the Acceptance
Rate and adjusted for being calculated on a discount basis. All such drafts
shall have a tenor of approximately ninety (90) days with each date of
acceptance being a Quarter Date. The maturity date of each Acceptance shall be
a Quarter Date. No Acceptance will be created hereunder if
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its maturity date would otherwise extend beyond the Maturity Date unless
otherwise agreed to by the parties. In no event shall the aggregate Acceptance
Obligations (net of any discounted interest calculated at the Acceptance Rate
deducted upon acceptance) of Bank at any time exceed the outstanding principal
amount of the Term Loan.
SECTION 3.2. CREATION AND DISCOUNT OF ACCEPTANCES. (a) In the event Bank
elects to fund the Term Loan with Acceptances then, prior to 11:00 A.M.
(Atlanta, Georgia time) on any Quarter Date, Bank, in its sole discretion, may
request that Borrower elect the Acceptance Rate. Upon such election, Bank
shall promptly (a) complete the drafts specified in Section 3.2(b) hereof, (b)
duly accept such draft(s), (c) discount the drafts at the Acceptance Rate, (d)
provide Borrower with written or telephonic notice (i) of Bank's creation of
such Acceptances (specifying the date, the face amount and the maturity date
thereof) and (ii) the Acceptance Rate, and (e) fund the outstanding Term Loan
with the proceeds of such Acceptances.
(b) In the event Bank elects to fund the Term Loan with Acceptances, Borrower
shall either (i) deliver, or cause to be delivered to Bank, fully executed
drafts for acceptance by Bank, or (ii) authorize Bank by telephone to complete,
or cause to be completed, pre-signed drafts previously delivered to Bank by
Borrower or (iii) authorize Bank by telephone to act as Borrower's agent to
complete and sign drafts as provided hereunder. Borrower hereby appoints any
officer (or any employee under the direct supervision of an officer) of Bank to
act as its agent for the limited purpose of representing and acting as
Borrower's attorney-in-fact in the completion of any such drafts (including,
but not limited to, date, place of issuance, amount, draft number, date of
maturity and transaction information) and the issuance and safekeeping of any
such drafts. Neither Bank nor its agent(s) shall be liable to Borrower for
executing, failing to execute or for any error in the execution of any orders
or instructions from Borrower, except in the case of Bank's gross negligence or
willful misconduct.
SECTION 3.3. MATURITY. On the maturity date of each Acceptance, Borrower
shall pay to Bank an amount equal to the face amount of each Acceptance
(including all discounted interest deducted upon acceptance).
SECTION 3.4. SPECIAL INDEMNIFICATION. Borrower shall indemnify and hold Bank
and Bank's affiliates, shareholders, directors, officers, employees and agents
("Indemnified Persons") harmless from any and all claims, demands, losses,
costs, damages, liabilities and expense, including attorneys' fees (excluding
consequential, incidental or special damages), which any Indemnified Person may
suffer or incur (a) by reason of Borrower's failure to perform any of the
Acceptance Obligations arising under this Agreement or under any Acceptances
properly created in accordance with Section 3.2 hereof; or (b) arising out of
any transaction or contract to which any Acceptance relates, or any goods or
documents involved therein. The indemnity contained in this Section 3.4 shall
survive termination of this Agreement.
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ARTICLE IV
GENERAL PAYMENT PROVISIONS
SECTION 4.1. USE OF PROCEEDS. The proceeds of the Term Loan and any
Acceptance shall be used by Borrower solely to finance working capital of
Borrower and other general corporate purposes including, but not limited to,
the acquisition of assets, stock or other ownership interests.
SECTION 4.2. ILLEGALITY. Notwithstanding any other provisions of this
Agreement, if the introduction of, or any change in the interpretation or
application of any applicable law, regulation or directive shall make it
unlawful for Bank to make, maintain or fund any LIBOR Loan, the obligation of
Bank hereunder to make, maintain or fund such LIBOR Loan shall forthwith be
suspended for the duration of such illegality, and Borrower shall, at its
option, if any LIBOR Loan is then outstanding, prepay such LIBOR Loan or
convert such LIBOR Loan to an Alternate Base Rate Loan, subject to Section 4.4
hereof.
SECTION 4.3. INCREASED COSTS. In the event that the introduction of, or any
change in or in the interpretation of or application of, any applicable law,
treaty or governmental regulation, or the compliance by Bank with any
guideline, request or directive (whether or not having the force of law) from
any central bank or other U.S. or foreign financial, monetary or other
governmental authority, shall: (a) subject Bank to any tax of any kind
whatsoever with respect to this Agreement, the Term Loan or any Acceptance or
change the basis of taxation of payments to Bank of principal, interest, fees
or any other amount payable hereunder (except for changes in the rate of tax in
the overall net income of Bank); (b) impose, modify, or hold applicable any
reserve, special deposit, assessment or similar requirement against assets held
by, or deposits in or for the account of, advances, loans or acceptances by, or
other credit extended by or committed to be extended by, any office of Bank
(other than any change by way of imposition or increase of reserve requirements
under Regulation D of the Board of Governors of the Federal Reserve System in
the case of a LIBOR Loan included in the Reserve Percentage); or (c) impose on
Bank or on the London interbank market any other condition with respect to this
Agreement, the Term Note or any LIBOR Loan thereunder or any Acceptance; and
the result of any of the foregoing is to increase the cost to Bank of making or
committing to make, renewing or maintaining any LIBOR Loan or any Acceptance or
to reduce the amount of any payment (whether of principal, interest or
otherwise) in respect of any LIBOR Loan or any Acceptance, THEN, IN ANY CASE,
Borrower shall promptly pay from time to time, upon demand of Bank, such
additional amounts as will compensate Bank for such additional cost or such
reduction, as the case may be. Bank shall certify the amount of such
additional cost or reduced amount to Borrower, including a description of the
calculation thereof in reasonable detail, and such certification shall be
conclusive absent manifest error.
SECTION 4.4. INDEMNITY. Borrower hereby agrees to indemnify Bank and hold
Bank harmless from any loss, cost or expense (excluding incidental,
consequential or special damages) it may sustain or incur as a direct
consequence of the payment or conversion of a LIBOR Loan
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on a day other than the last day of the Interest Period applicable thereto,
including, without limitation, any loss, cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired or deemed
acquired by Bank to fund such LIBOR Loan. Bank shall certify the amount of its
loss or expense to Borrower, and such certification shall be conclusive absent
manifest error.
SECTION 4.5. MAKING OF PAYMENTS. All payments of principal of, or interest
on, the Term Note or of the Acceptance Obligations shall be made in immediately
available funds to Bank at its principal office in Atlanta, Georgia. All
payments due on a date which is not a Business Day shall be deemed to be due on
the next following Business Day, unless such Business Day falls in the next
calendar month, in which case the due date will be the first preceding Business
Day. All such payments shall be made not later than 11:00 A.M. (Atlanta,
Georgia time) and funds received after that hour shall be deemed to have been
received by Bank on the next following Business Day.
SECTION 4.6. DEFAULT RATE OF INTEREST. If Borrower shall fail to pay on the
due date therefor, whether by acceleration or otherwise, any principal owing
under the Term Note or this Agreement or the face amount of any Acceptance on
its maturity date, then interest shall accrue on such unpaid principal from the
due date until and including the date on which such principal or other amount
is paid in full at (i) the then applicable interest rate with respect to a
LIBOR Loan until the end of the Interest Period applicable thereto plus an
additional two per cent (2%) per annum and (ii) thereafter and with respect to
Acceptances or Alternate Base Rate Loans, a rate of interest equal to the
Alternate Base Rate plus an additional two percent (2.0) per annum ("Default
Rate").
SECTION 4.7. CALCULATION OF INTEREST. Interest payable on the Term Note and
the discount determined on each Acceptance shall be calculated on the basis of
a year of 360 days and shall be paid for the actual number of days elapsed.
SECTION 4.8. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE UNASCERTAINABLE.
In the event Bank shall have determined, in good faith and reasonably, that
United States dollar deposits of the relevant amount for the relevant Interest
Period for LIBOR Loans are not available to the Bank in the London Interbank
Eurodollar market or that, by reason of circumstances affecting such market,
adequate and reasonable means do not exist for ascertaining LIBOR applicable to
such determination to Borrower then (i) any notice of the Term Loan to a LIBOR
Loan previously given and not yet converted shall be deemed a notice to make an
Alternate Base Rate Loan unless Borrower notifies Bank to the contrary, and
(ii) Borrower shall be obligated either to prepay or to convert any outstanding
LIBOR Loan on the last day of the then current Interest Period with respect
thereto.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Bank that:
SECTION 5.1. CORPORATE EXISTENCE. Borrower is a corporation duly organized
and in good standing under the laws of the State of Ohio.
SECTION 5.2. AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance by Borrower of this Agreement, the Term Note and all other Loan
Documents are within Borrower's corporate powers, have been duly authorized by
all necessary corporate action, and do not and will not contravene or conflict
with any provision of applicable law in effect on the date hereof or of the
Amended Articles of Incorporation or Regulations of Borrower or of any
agreement for borrowed money or other material agreement binding upon Borrower.
Borrower has duly executed and delivered this Agreement.
SECTION 5.3. VALIDITY AND BINDING NATURE. This Agreement, the Term Note and
all other Loan Documents are legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their respective terms.
SECTION 5.4. LITIGATION AND LIENS. To the best of Borrower's knowledge, no
litigation or proceeding is pending which would, if successful, have a Material
adverse impact on the financial condition of Borrower and the Consolidated
Subsidiaries taken as a whole, which is not already reflected in Borrower's
Financial Reports delivered to Bank prior to the date of this Agreement. The
Internal Revenue Service has not alleged any Material default by Borrower in
the payment of any tax or threatened to make any Material assessment in respect
thereof which would have or reasonably could have a Material adverse impact on
the financial condition of Borrower and the Consolidated Subsidiaries, taken as
a whole.
SECTION 5.5. ERISA COMPLIANCE. Neither Borrower nor any Consolidated
Subsidiary has incurred any Material accumulated funding deficiency within the
meaning of ERISA and the regulations thereunder. No Reportable Event has
occurred with respect to any Plan which would have a Material adverse financial
impact on Borrower or any of its Consolidated Subsidiaries, taken as a whole.
The Pension Benefit Guaranty Corporation, established under ERISA, has not
asserted that Borrower or any Consolidated Subsidiary has incurred any Material
liability in connection with any Plan. No Material lien has been attached and
no person has threatened to attach such a lien on any property of Borrower and
any Consolidated Subsidiary as a result of Borrower's or any Consolidated
Subsidiary's failure to comply with ERISA.
SECTION 5.6. ENVIRONMENTAL MATTERS. To the best of Borrower's knowledge,
Borrower and each Subsidiary is in substantial compliance with all applicable
existing laws and regulations (other than laws and regulations the validity or
applicability of which are being contested by Borrower or a Subsidiary, as the
case may be, in good faith by appropriate
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proceedings diligently prosecuted) relating to environmental control in all
jurisdictions where Borrower or any Subsidiary is presently doing business and
Borrower and each Subsidiary (to the extent applicable to its operations) is in
substantial compliance with the Occupational Safety and Health Act of 1970 and
all rules, regulations and applicable orders thereunder (other than rules,
regulations and orders the validity or applicability of which are being
contested by Borrower or a Subsidiary, as the case may be, in good faith by
appropriate proceedings diligently prosecuted).
SECTION 5.7. FINANCIAL REPORTS. The Financial Reports of Borrower and the
Consolidated Subsidiaries, furnished to Bank prior to the date of this
Agreement or from time to time pursuant to this Agreement shall be true and
complete, prepared in accordance with generally accepted accounting principles,
except as stated therein, and fairly present Borrower's and its Consolidated
Subsidiaries' financial condition and the results of their operations for the
period encompassed by such Financial Reports. Since the dates of Borrower's
most recent Financial Reports until the date of this Agreement there has been
no material adverse change in the consolidated financial condition of Borrower
and the Consolidated Subsidiaries taken as a whole.
SECTION 5.8. REGULATION U. Neither Borrower nor any of its Consolidated
Subsidiaries is generally engaged in the business of purchasing or selling
margin stock or extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System). Bank represents and warrants to
Borrower that it is not relying on and will not rely on any margin stock (as
described above) in determining whether to extend a loan to Borrower under this
Agreement.
SECTION 5.9. GOVERNMENT REGULATION. Neither Borrower nor any of its
Consolidated Subsidiaries is registered or is required to be registered as a
public utility under the Public Utility Holding Company Act of 1935 or as an
investment company under the Investment Company Act of 1940.
SECTION 5.10. TAXES. Borrower and its Consolidated Subsidiaries have filed
all United States federal income tax returns and all other material tax returns
which are required to have been filed by them (subject to any available
extensions) and have paid all taxes indicated as due on such returns except for
any such taxes being contested by Borrower or a Subsidiary, as the case may be,
in good faith by appropriate proceedings diligently prosecuted (Borrower has
made adequate and reasonable provision for all material taxes not yet due and
payable), if any, and all material assessments, if any.
SECTION 5.11. DEFAULTS. No Possible Default exists which would have or
reasonably could have a Material adverse impact on the financial condition of
Borrower and the Consolidated Subsidiaries, taken as a whole.
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ARTICLE VI
COVENANTS
Until all obligations of Borrower hereunder, under the Term Note and under
all Acceptances are satisfied and paid in full, Borrower agrees that, unless at
any time Bank shall otherwise expressly agree in writing:
SECTION 6.1. INSURANCE. Borrower will (a) maintain insurance to such extent
and against such hazards and liabilities as is commonly maintained by companies
similarly situated, and (b) upon Bank's written request, furnish to Bank such
information about Borrower's and its Consolidated Subsidiaries' insurance as
Bank may from time to time reasonably request, which information shall be
prepared in form and detail reasonably satisfactory to Bank.
SECTION 6.2. FINANCIAL REPORTS. Borrower will furnish to Bank:
(i) within sixty (60) days after the end of each of the first three
quarter-annual periods of each of its fiscal years (and, in any event,
in each case as soon as available), the quarterly Financial Report of
Borrower and the Consolidated Subsidiaries as at the end of that period,
prepared on a consolidated basis;
(ii) within ninety (90) days after the end of each of its fiscal years (and,
in any event, in each case as soon as available), the annual Financial
Report of Borrower and the Consolidated Subsidiaries for that year
prepared on a consolidated basis;
(iii) within sixty (60) days after the end of each of its quarterly
accounting periods and within ninety (90) days after the end of its
annual accounting period, a statement signed by a financial officer of
Borrower reflecting compliance with Section 6.3 hereof and to the
effect that no Event of Default has occurred and is continuing or, if
there is any such event, describing it and the steps being taken, if
any, to cure such event;
(iv) promptly after filing with the Securities and Exchange Commission, any
Form 8-K or Schedule 13D filings applicable to Borrower (or any
successor forms or schedules promulgated by the Securities and Exchange
Commission from time to time which encompass the matters currently
addressed in Form 8-K and Schedule 13D);
(v) written notice of any change in the rating assigned to Borrower's senior
unsecured long-term debt by Xxxxx'x, S&P or Duff & Xxxxxx within thirty
(30) days of such change; and
(vi) such other financial information regarding Borrower as Bank may
reasonably request.
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SECTION 6.3. NET WORTH. Borrower will not permit its Consolidated Net Worth
at any time to fall below Eight Hundred Million Dollars ($800,000,000).
SECTION 6.4. REGULATIONS U AND X. Borrower will not nor will it permit any
Subsidiary to take any action that would result in any non- compliance of the
loan made hereunder with Regulation U and X of the Board of Governors of the
Federal Reserve System. Borrower's use of proceeds from the loan made pursuant
to this Agreement will not cause a violation of Regulation U or X.
SECTION 6.5. MERGER AND SALE OF ASSETS. Borrower will not merge or
consolidate with nor permit any Consolidated Subsidiary to merge or consolidate
with any other corporation or sell, lease or transfer or otherwise dispose of
all or, during any twelve (12) month period, a substantial part of its assets
to any person or entity (except as otherwise provided herein); provided,
however, if no Possible Default shall then exist or immediately thereafter will
begin to exist:
(i) Any Consolidated Subsidiary may merge with (a) Borrower (provided that
Borrower shall be the continuing or surviving corporation) or (b) any
one or more other Consolidated Subsidiaries provided that either the
continuing or surviving corporation shall be a Wholly-Owned Consolidated
Subsidiary, or after giving effect to any merger pursuant to this
sub-clause (b), Borrower and/or one or more Wholly-Owned Consolidated
Subsidiaries shall own not less than the same percentage of the
outstanding Voting Stock of the continuing or surviving corporation as
Borrower and/or one or more Wholly-Owned Consolidated Subsidiaries owned
of the merged Consolidated Subsidiary immediately prior to such merger,
(ii) Any Consolidated Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to (a) Borrower, (b) any Wholly-Owned
Consolidated Subsidiary or (c) any Consolidated Subsidiary of which
Borrower and/or one or more Wholly-Owned Consolidated Subsidiaries shall
own not less than the same percentage of Voting Stock as Borrower and/or
one or more Wholly-Owned Consolidated Subsidiaries then own of the
Consolidated Subsidiary making such sale, lease, transfer or other
disposition,
(iii) Borrower may sell the stock or assets of any Consolidated Subsidiary
if such sale or other disposition is determined by the board of
directors of Borrower to be in the best interests of Borrower and such
sale is for a consideration which represents the fair value (as
determined in good faith by the board of directors of Borrower)
thereof at the time of such sale of such stock or assets,
(iv) Borrower may merge with any other corporation, provided that Borrower
shall be the surviving corporation,
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(v) Borrower or any Consolidated Subsidiary may sell all or any part of the
assets of any of its divisions or operations to a third party if such
sale or other disposition is determined by the board of directors of
Borrower and/or such Consolidated Subsidiary, as the case may be, to be
in the best interests of Borrower and/or such Consolidated Subsidiary,
as the case may be, and such sale is for a consideration which
represents the fair value (as determined in good faith by the board of
directors of Borrower) thereof at the time of such sale or other
disposition of such assets,
(vi) Borrower or any Subsidiary may sell or transfer all or any part of the
assets of any of its divisions or operations to any Subsidiary.
In the event there occurs a Change in Control of Borrower, the Term Loan or all
Acceptance Obligations, as the case may be, shall be immediately due and
payable without notice to Borrower. For purposes of this paragraph, a "Change
of Control" shall occur if:
(a) there shall be consummated (i) any consolidation or merger of Borrower
in which Borrower is not the continuing or surviving corporation or pursuant
to which shares of Borrower's common stock would be converted into cash,
securities or other property, other than a merger of Borrower in which the
holders of Borrower's common stock immediately prior to the merger have
substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (ii) any sale, lease,
exchange or transfer (in one transaction or a series of related
transactions) of fifty percent (50%) or more of the assets or earning power
of Borrower;
(b) any "person" (as such term is used in Sections as 13(d) and 14(d)(2)
of the Exchange Act, as amended, other than Borrower or any employee benefit
or stock ownership plan sponsored by Borrower, or any person or entity
organized, appointed or established by Borrower for or pursuant to the terms
of any such Plan, shall become the beneficial owner (within the meaning of
Rule 13d-3 under the Exchange Act) of securities of Borrower representing
fifteen percent (15%) or more of the combined voting power of Borrower's
then outstanding securities ordinarily (and apart from rights accruing in
special circumstances) having the right to vote in the election of
directors, as a result of a tender or exchange offer, open market purchases,
privately negotiated purchases or otherwise; or
(c) during any period of two (2) consecutive years, individuals who at the
beginning of such period constituted the board of directors of Borrower
and any new director whose election by such board of directors or nomination
for election by Borrower's shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority thereof.
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Notwithstanding subparagraph (a) through (c) above, with respect to the
transactions set forth in subparagraphs (a) and (b) above, a Change of
Control shall not be deemed to have occurred if any such transaction (i) is
approved by a vote of at least two-thirds (2/3) of the directors of
Borrower and (ii) at the time of such vote, at least two-thirds (2/3) of
such directors then in office were members of the board of directors of
Borrower immediately prior to such transaction.
SECTION 6.6. NOTICE. As long as any indebtedness of Borrower remains
outstanding hereunder, Borrower will cause its treasurer, or in his absence
another representative of Borrower designated by the treasurer, to promptly
notify Bank whenever any Material Possible Default may occur or any warranty
made in Article V hereof or elsewhere in this Agreement may for any reason
cease in any Material respect to be true and complete.
SECTION 6.7. LIENS. Borrower will not and will not permit any Consolidated
Subsidiary to create, assume or suffer to exist any lien upon any of its
property or assets (hereinafter "Properties") whether now owned or hereafter
acquired without effectively providing that any borrowings under this Agreement
shall be secured equally and ratably with all other indebtedness thereby
secured; provided that this Section shall not apply to the following:
(i) liens for taxes not yet due or which are being actively contested in good
faith by appropriate proceedings,
(ii) other liens incidental to the conduct of its business or the ownership
of its Properties which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit, and which do
not in the aggregate materially detract from the value of its Properties
or materially impair the use thereof in the operation of its business,
(iii) liens on Properties of a Consolidated Subsidiary to secure obligations
of such Consolidated Subsidiary to Borrower or another Consolidated
Subsidiary,
(iv) liens on Properties of Borrower and/or its Consolidated Subsidiaries
existing on the date hereof,
(v) any lien existing on any Properties of any corporation at the time it
becomes a Consolidated Subsidiary, existing prior to the time of
acquisition upon any Properties acquired by Borrower or any Consolidated
Subsidiary through purchase, merger, consolidation or otherwise,
whether or not assumed by Borrower or such Consolidated Subsidiary,
(vi) any lien placed upon any asset other than real property (hereinafter in
this subparagraph (vi) "Asset") at the time of acquisition by Borrower
or any Consolidated Subsidiary to secure all or a portion of [or to
secure indebtedness
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incurred prior to, at the time of, or (in the case of any Asset acquired
with the intent to obtain subsequent financing thereof secured by a
lien) within one (1) year after the acquisition of such Asset for the
purpose of financing all or a portion of] the purchase price thereof,
provided that any such lien shall not encumber any other Properties
of Borrower or such Consolidated Subsidiary,
(vii) any lien placed upon any real property now owned or hereafter acquired
by Borrower or any of its Subsidiaries securing indebtedness in an
amount up to eighty percent (80%) of the fair market value of such
real property,
(viii) liens in favor of the United States of America or any department or
agency thereof, or in favor of any state government or political
subdivision thereof, or in favor of a prime contractor under a
government contract of the United States, or of any state government
or any political subdivision thereof, and, in each case, resulting
from acceptance of partial, progress, advance or other payments in
the ordinary course of business under government contracts of the
United States, or of any state government or any political
subdivision thereof, or subcontracts thereunder,
(ix) liens created, assumed or existing in connection with a tax-free
financing,
(x) any lien renewing, extending or refunding any lien permitted by clauses
(iv), (v), (vi), (vii), (viii) and (ix) above, provided that the
principal amount secured is not materially increased, and the lien is
not extended to other Properties, and
(xi) liens other than those permitted by clauses (i) through (x) above,
provided that the aggregate amount of all indebtedness secured by liens
permitted by this clause (xi) shall not at any time exceed fifteen
percent (15%) of Consolidated Net Worth.
SECTION 6.8. ERISA COMPLIANCE. Neither Borrower nor any Consolidated
Subsidiary will incur any Material accumulated funding deficiency within the
meaning of the ERISA and the regulations thereunder, or any Material liability
to the Pension Benefit Guaranty Corporation or any successor thereto in
connection with any Plan. Borrower will furnish to Bank as soon as possible
and in any event within thirty (30) days after Borrower or such Consolidated
Subsidiary knows or has reason to know that any Material Reportable Event with
respect to any Plan has occurred a statement of the chief financial officer of
Borrower or such Consolidated Subsidiary setting forth details as to such
Reportable Event and the action which Borrower or such Consolidated Subsidiary
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event given to the Pension Benefit Guaranty Corporation if a
copy of such notice is available to Borrower or such Consolidated Subsidiary.
SECTION 6.9. NOTICE OF DEFAULT. Borrower will, and will cause each
Consolidated Subsidiary to, give prompt notice in writing to Bank of the
occurrence of any Possible Default
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and of any other development, financial or otherwise, with respect to which
there is a significant probability of a Material adverse impact on Consolidated
Net Worth or on Borrower's ability to repay its obligation to Bank hereunder.
SECTION 6.10. CONDUCT OF BUSINESS. Borrower will, and will cause each
Consolidated Subsidiary to, carry on and conduct its business in substantially
the same manner as it is presently conducted and to do all things necessary to
remain duly incorporated, validly existing and in good standing as a
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
SECTION 6.11. TAXES. Borrower will, and will cause each Consolidated
Subsidiary to, pay when due all taxes, assessments and governmental charges and
levies upon it or its income, profits or property, except those which are being
contested in good faith by appropriate proceedings.
SECTION 6.12. ENVIRONMENTAL. Borrower will use its best good faith efforts to
comply and to cause each Subsidiary to comply with all such laws and
regulations (other than laws and regulations the validity or applicability of
which are being contested by Borrower or a Subsidiary, as the case may be, in
good faith by appropriate proceedings diligently prosecuted) which may be
legally imposed in the future in jurisdictions in which Borrower or any
Subsidiary may then be doing business.
ARTICLE VII
EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default:
SECTION 7.1. NON-PAYMENT OF TERM NOTE OR INTEREST. If the interest on the
Term Note shall not be paid in full when due and payable and shall remain
unpaid for a period of three (3) consecutive business days after written notice
thereof to Borrower from Bank. If the principal on the Term Note or the
Acceptance Obligations shall not be paid in full when due and payable.
SECTION 7.2. COVENANTS. If Borrower shall fail or omit to perform and observe
any agreement or other provision (other than those referenced in Section 7.1
hereof) contained or referred to in this Agreement or in any Related Writing
that is on Borrower's part to be complied with, and such failure or omission,
if not fully corrected within thirty (30) days after the giving of written
notice thereof to Borrower by Bank that such failure or omission would have or
reasonably could have a Material adverse impact on the financial condition of
Borrower and the Consolidated Subsidiaries, taken as a whole (provided,
however, that the financial covenant in Section 6.3 shall be applied without
regard to any materiality standard).
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SECTION 7.3. WARRANTIES. If any representation, warranty or statement made in
or pursuant to this Agreement or any Related Writing or any other information
furnished by Borrower to Bank or any other holder of the Term Note, shall be
false or erroneous in any respect which would have or reasonably could have a
Material adverse impact on the financial condition of Borrower and the
Consolidated Subsidiaries, taken as a whole.
SECTION 7.4. CROSS DEFAULT. If Borrower or any of its Consolidated
Subsidiaries (i) default in the payment of principal or interest due and owing
upon any other Material obligation for borrowed money beyond any period of
grace provided with respect thereto or (ii) default in the performance of any
other agreement, term or condition contained in any agreement under which such
obligation is created, and any such default is not waived by the holders of
such agreement or instrument, and if the effect of such unwaived default would
(a) accelerate the maturity of such indebtedness or permit the holder thereof
to cause such indebtedness to become due prior to its stated maturity and (b)
have or reasonably could have a Material adverse impact on the financial
condition of Borrower and the Consolidated Subsidiaries, taken as a whole.
SECTION 7.5. TERMINATION OF OPERATIONS, BANKRUPTCY OR INSOLVENCY. If Borrower
or a Consolidated Subsidiary representing in excess of ten percent (10%) of
total consolidated assets of Borrower and the Consolidated Subsidiaries shall
(i) discontinue business (except as permitted under Section 6.5 hereof) or (ii)
generally not pay (or admit in writing its inability to pay) its debts as such
debts become due, or (iii) make a general assignment for the benefit of
creditors, or (iv) apply for or consent to the appointment of a receiver, a
custodian, a trustee, an interim trustee or a liquidator of all or a
substantial part of its assets, or (v) be adjudicated an insolvent debtor or
have entered against it an order for relief under Title 11 of the United States
Code, as the same may be amended from to time to time, or (vi) file a voluntary
petition in bankruptcy or file a petition or an answer seeking reorganization
or an arrangement with creditors or seeking to take advantage of any other law
(whether federal or state) relating to relief of debtors, or admit (by answer,
by default or otherwise) the substantive allegations of a petition filed
against it in any bankruptcy, reorganization, insolvency or other comparable
proceeding (whether federal or state) relating to relief of debtors, or (vii)
suffer or permit to continue unstayed and in effect for sixty (60) consecutive
days any judgment, decree or order entered by a court of competent
jurisdiction, which approves a petition seeking its reorganization or appoints
a receiver, custodian, trustee, interim trustee or liquidator of all or a
substantial part of its assets.
ARTICLE VIII
EFFECT OF DEFAULT
SECTION 8. EFFECT OF EVENT OF DEFAULT. Upon the occurrence and continuance
of any Event of Default, the principal and all accrued interest due under the
Term Note or the Acceptance Obligations shall become immediately due and
payable, without notice and Bank may exercise any remedies available under law
or in equity.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. BANK'S INDEPENDENT INVESTIGATION. Bank, by its signature to this
Agreement, acknowledges and agrees that it has made its own independent
investigation of the creditworthiness, financial condition and affairs of
Borrower and any Subsidiary in connection with the Term Loan.
SECTION 9.2. NO WAIVER; CUMULATIVE REMEDIES. No omission or course of dealing
on the part of Bank or the holder of the Term Note in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The remedies herein provided are cumulative and in addition
to any other rights, powers or privileges held by operation of law, by contract
or otherwise.
SECTION 9.3. AMENDMENTS. Except as otherwise specifically provided herein, no
amendment, modification, termination, or waiver of any provision of this
Agreement or the Term Note, nor consent to any variance therefrom, shall be
effective unless the same shall be in writing and signed by Borrower Bank and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 9.4. CONFIDENTIALITY. Unless Borrower otherwise agrees in writing,
Bank hereby agrees to keep all Proprietary Information (as defined below)
confidential and not to disclose or reveal any Proprietary Information to any
person or entity other than Bank's directors, officers, employees, affiliates,
and agents, and then only on a confidential need-to-know basis; provided,
however that Bank may disclose Proprietary Information (a) as required by law,
rule, regulation, or judicial process, (b) to its attorneys and accountants,
(c) as requested or required by a state, federal, or foreign authority or
examiner regulating banks or banking, or (d) to actual or potential assignees
or participants as permitted by Section 9.9 hereof who agree to be bound by the
provisions of this Section. For purposes of this Agreement, the term
"Proprietary Information" shall include all information about Borrower, any
Subsidiary, or any of their respective affiliates which has been furnished by
Borrower, any Subsidiary, or any of their respective affiliates, whether
furnished before or after the date hereof, and regardless of the manner
furnished; provided, however, that Proprietary Information shall not include
information which (x) is or becomes generally available to the public other
than as a result of a disclosure by Bank not permitted by this Agreement, (y)
was available to Bank on a nonconfidential basis prior to its disclosure to
Bank by Borrower, any Subsidiary, or any of their respective affiliates, or (z)
becomes available to Bank on a nonconfidential basis from a person and/or
entity other than Borrower, any Subsidiary, or any of their respective
affiliates who, to the best knowledge of Bank, is not otherwise bound by a
confidentiality agreement with Borrower, any Subsidiary, or any of their
respective affiliates, or, to the best knowledge of Bank, is not otherwise
prohibited from transmitting the information to Bank.
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SECTION 9.5. NOTICES. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to Borrower or a Subsidiary,
mailed or delivered to it, addressed to it at the address of Borrower herein
specified, and if to Bank, mailed or delivered to it, addressed to the address
of Bank specified in this Agreement. All notices, statements, requests,
demands and other communications provided for hereunder shall be deemed to be
given or made when received.
If to Bank: SunTrust Bank, Atlanta
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx,
Assistant Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Borrower: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx,
Director, Treasury Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 9.6. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original and when taken together shall constitute one and the
same agreement.
SECTION 9.7. ENTIRE AGREEMENT. This Agreement supersedes any prior agreement
or understanding of the parties hereto, and contains the entire agreement of
the parties hereto, with respect to the matters covered hereby.
SECTION 9.8. GOVERNING LAW. This Agreement, and the Term Note shall be
governed by and construed in accordance with the laws of the State of Georgia
and the respective rights and obligations of Borrower and Bank shall be
governed by Georgia law.
SECTION 9.9. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. The several captions to sections and subsections herein are
inserted for convenience only and shall be ignored in interpreting the
provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date indicated above.
THE XXXXXXX-XXXXXXXX COMPANY SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------- --------------------------
XXXXX X. XXXXXXX XXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT- Title: ASSISTANT VICE PRESIDENT
FINANCE, TREASURER AND
CHIEF FINANCIAL OFFICER
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
-------------------------- --------------------------
XXXXX X. XXXXXXXXXXX XXXXX X. XXXXXXXX
Title: ASSISTANT SECRETARY AND Title: VICE PRESIDENT
CORPORATE DIRECTOR OF TAXES
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