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EXHIBIT 10.59
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 9, 1998
among
WESTPOINT XXXXXXX INC.
CERTAIN OF ITS SUBSIDIARIES
THE SEVERAL BANKS
FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK, N. A.,
as Administrative Agent
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS........................................................1
1.1 Definitions........................................................1
1.2 Computation of Time Periods.......................................28
1.3 Accounting Terms..................................................28
SECTION 2 CREDIT FACILITIES.................................................29
2.1 Revolving Loans...................................................29
2.2 Competitive Loan Subfacility......................................31
2.3 Foreign Currency Loan Subfacility.................................33
2.4 Letter of Credit Subfacility......................................35
2.5 Swingline Loan Subfacility........................................40
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES....................42
3.1 Default Rate......................................................42
3.2 Extension and Conversion..........................................42
3.3 Prepayments.......................................................43
3.4 Termination and Reduction of Revolving Committed Amount...........44
3.5 Fees. ............................................................44
3.6 Capital Adequacy..................................................46
3.7 Unavailability....................................................46
3.8 Illegality........................................................46
3.9 Requirements of Law...............................................47
3.10 Treatment of Affected Loans......................................48
3.11 Taxes............................................................49
3.12 Compensation.....................................................51
3.13 Pro Rata Treatment...............................................51
3.14 Sharing of Payments..............................................52
3.15 Payments, Computations, Etc......................................53
3.16 Evidence of Debt.................................................55
3.17 Additional Foreign Borrowers.....................................55
3.18 Several Liability of Foreign Borrowers...........................56
3.19 European Common Currency.........................................56
SECTION 4 GUARANTY OF FOREIGN BORROWER OBLIGATIONS..........................57
4.1 Guaranty..........................................................57
4.2 Obligations Unconditional.........................................57
4.3 Reinstatement.....................................................58
4.4 Remedies..........................................................58
SECTION 5 CONDITIONS........................................................59
5.1 Closing Conditions................................................59
5.2 Conditions to all Extensions of Credit............................63
SECTION 6 REPRESENTATIONS AND WARRANTIES....................................64
6.1 Financial Condition...............................................64
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6.2 No Material Change................................................64
6.3 Organization and Good Standing....................................64
6.4 Power; Authorization; Enforceable Obligations.....................65
6.5 No Conflicts......................................................65
6.6 No Default........................................................66
6.7 Ownership.........................................................66
6.8 Indebtedness......................................................66
6.9 Litigation........................................................66
6.10 Tax Returns, Payments and Examinations...........................66
6.11 Compliance with Law..............................................67
6.12 ERISA............................................................67
6.13 Subsidiaries.....................................................68
6.14 Governmental Regulations, Etc....................................69
6.15 Purpose of Loans.................................................70
6.16 Environmental Matters............................................70
6.17 Intellectual Property............................................71
6.18 Solvency.........................................................71
6.19 Investments......................................................71
6.20 Location of Collateral...........................................71
6.21 Disclosure.......................................................71
6.22 No Burdensome Restrictions.......................................72
6.23 Brokers' Fees....................................................72
6.24 Labor Matters....................................................72
6.25 Year 2000 Compliance.............................................72
SECTION 7 AFFIRMATIVE COVENANTS.............................................72
7.1 Information Covenants.............................................72
7.2 Preservation of Existence and Franchises..........................76
7.3 Books and Records.................................................76
7.4 Compliance with Law...............................................76
7.5 Payment of Taxes and Other Indebtedness...........................76
7.6 Insurance.........................................................77
7.7 Maintenance of Property...........................................77
7.8 Performance of Obligations........................................78
7.9 Use of Proceeds...................................................78
7.10 Audits/Inspections...............................................78
7.11 Financial Covenants. The Borrower shall:........................78
7.12 Additional Credit Parties........................................78
7.13 Real Estate Appraisals...........................................79
7.14 Environmental Assessments........................................79
SECTION 8 NEGATIVE COVENANTS................................................80
8.1 Indebtedness......................................................80
8.2 Liens.............................................................81
8.3 Nature of Business................................................81
8.4 Consolidation, Merger, Dissolution, etc...........................81
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8.5 Asset Dispositions................................................82
8.6 Investments and Acquisitions......................................83
8.7 Restricted Payments...............................................84
8.8 Transactions with Affiliates......................................84
8.9 Fiscal Year; Organizational Documents.............................84
8.10 Limitation on Restricted Actions.................................85
8.11 Ownership of Subsidiaries........................................85
8.12 Sale Leasebacks..................................................85
8.13 No Negative Pledges..............................................86
8.14 Operating Lease Obligations......................................86
8.16 Environmental Liabilities........................................87
8.17 Futures Contracts................................................87
8.18 Inactive Subsidiaries............................................87
SECTION 9 EVENTS OF DEFAULT.................................................88
9.1 Events of Default.................................................88
9.2 Acceleration; Remedies............................................90
SECTION 10 AGENCY PROVISIONS................................................91
10.1 Appointment, Powers and Immunities...............................91
10.2 Reliance by Agent................................................91
10.3 Defaults.........................................................92
10.4 Rights as a Bank.................................................92
10.5 Indemnification..................................................93
10.6 Non-Reliance on Agent and Other Banks............................93
10.7 Successor Agent..................................................93
10.8 Co-Agents........................................................94
SECTION 11 MISCELLANEOUS....................................................94
11.1 Notices..........................................................94
11.2 Right of Set-Off; Adjustments....................................95
11.3 Benefit of Agreement.............................................95
11.4 No Waiver; Remedies Cumulative...................................97
11.5 Expenses; Indemnification........................................97
11.6 Amendments, Waivers and Consents.................................98
11.7 Counterparts.....................................................99
11.8 Headings........................................................100
11.9 Survival........................................................100
11.10 Governing Law; Submission to Jurisdiction; Venue...............100
11.11 Arbitration....................................................101
11.12 Severability...................................................101
11.13 Amended and Restated Agreement; Entirety.......................101
11.14 Binding Effect; Termination....................................102
11.15 Confidentiality................................................102
11.16 Source of Funds................................................102
11.17 Judgment Currency..............................................103
11.18 Conflict.......................................................103
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SCHEDULES
Schedule 1.1A Existing Letters of Credit
Schedule 1.1B Liens
Schedule 1.1C Subsidiary Guarantors
Schedule 2.1(a) Revolving Commitment Percentages of the Banks
Schedule 5.1(d)(i) Form of Legal Opinion (Weil, Gotshal & Xxxxxx LLP)
Schedule 5.1(d)(ii) Form of Legal Opinion (Local Collateral Counsel)
Schedule 6.4 Required Consents, Authorizations, Notices
and Filings
Schedule 6.9 Litigation
Schedule 6.10 Taxes
Schedule 6.12 ERISA
Schedule 6.13 Subsidiaries
Schedule 6.16 Environmental Disclosures
Schedule 6.17 Intellectual Property
Schedule 6.20(a) Mortgaged Properties
Schedule 6.20(b) Collateral Locations
Schedule 6.20(c) Chief Executive Offices/Principal Places
of Business
Schedule 6.24 Labor Matters
Schedule 7.6 Insurance
Schedule 8.1 Indebtedness
Schedule 8.9 Changes in Capital Stock
EXHIBITS
Exhibit 2.1(b)(i) Form of Notice of Borrowing
Exhibit 2.1(e) Form of Revolving Note
Exhibit 2.2(b)-1 Form of Competitive Bid Request
Exhibit 2.2(b)-2 Form of Notice of Competitive Bid Request
Exhibit 2.2(c) Form of Competitive Bid
Exhibit 2.2(e) Form of Competitive Bid Accept/Reject Letter
Exhibit 2.3 Form of Foreign Currency Notes of Foreign Borrowers
Exhibit 2.5 Form of Swingline Note
Exhibit 3.2 Form of Notice of Extension/Conversion
Exhibit 7.1(c) Form of Officer's Compliance Certificate
Exhibit 7.12 Form of Joinder Agreement
Exhibit 11.3(b) Form of Assignment and Acceptance
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 9,
1998 (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"), is by and among WESTPOINT XXXXXXX INC., a Delaware
corporation (the "Borrower"), the foreign subsidiaries identified on the
signature pages hereto and such other foreign subsidiaries as may from time to
time become Foreign Borrowers hereunder in accordance with the provisions
hereof, the BANKS (as defined herein) and NATIONSBANK, N.A., as Agent for the
Banks (in such capacity, the "Agent" or the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Borrower, certain lending institutions, and Bankers Trust
Company, as administrative agent, entered into that certain credit agreement
dated as of December 1, 1993 (the "Original Credit Agreement") pursuant to which
such lending institutions agreed to make certain loans and extensions of credit
to the Borrower;
WHEREAS, on or about November 23, 1994, the Borrower, NationsBank, N.A. as
administrative agent, and certain lending institutions entered into that Amended
and Restated Credit Agreement (as heretofore amended, the "1994 Credit
Agreement"), pursuant to which the Borrower and the lending institutions party
thereto amended, modified and restated the terms and conditions of the Original
Credit Agreement;
WHEREAS, the Borrower desires to restate the 1994 Credit Agreement to
provide for certain amendments and modifications thereof, including without
limitation the increase in the amount and types of loans and extensions of
credit available thereunder;
WHEREAS, the Banks are willing to amend and restate the 1994 Credit
Agreement for the purposes and pursuant to the terms and conditions set forth
herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
1.1 Definitions.
As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:
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"Acquisition", by any Person, means the acquisition by such Person
of the Capital Stock or all or substantially all of the Property of
another Person, whether or not involving a merger or consolidation with
such Person.
"Acquisition Consideration" means with respect to any Acquisition
permitted by Section 8.6(b), the aggregate purchase price paid in
connection with such acquisition minus the sum of (i) any Indebtedness
which was assumed or incurred in connection with such Acquisition to the
extent such Indebtedness is permitted by Section 8.1, plus (ii) any
proceeds from the issuance by the Borrower of Capital Stock that are used
to pay all or part of the purchase price of such Acquisition or the value
of any Capital Stock issued to the seller in connection with such
Acquisition, provided that the Borrower issues such Capital Stock
concurrently with the closing of such Acquisition.
"Additional Credit Party" means each Person that becomes a
Subsidiary Guarantor after the Closing Date by execution of a Joinder
Agreement.
"Adjusted Eurocurrency Rate" means the Eurocurrency Rate plus the
Applicable Percentage.
"Affiliate" means, with respect to any Person, any other Person (i)
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person or (ii) directly or indirectly
owning or holding five percent (5%) or more of the Capital Stock in such
Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Agency Services Address" means NationsBank, N. A., NC1-001-15-04,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Agency
Services, or such other address as may be identified by written notice
from the Agent to the Borrower.
"Agent" shall have the meaning assigned to such term in the heading
hereof, together with any successors or assigns.
"Agent's Fee Letter" means that certain letter agreement, dated as
of May 7, 1998, between the Agent and the Borrower, as amended, modified,
restated or supplemented from time to time.
"Agent's Fees" shall have the meaning assigned to such term in
Section 3.5(d).
"Applicable Lending Office" means, for each Bank, the office of such
Bank (or of an Affiliate of such Bank) as such Bank may from time to time
specify to the Agent and the Borrower by written notice as the office by
which its Eurocurrency Loans are made and maintained.
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"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Eurocurrency Loan, the
applicable rate of the Standby Letter of Credit Fee for any day for
purposes of Section 3.5(c)(i) or the applicable rate of the Trade Letter
of Credit Fee for any day for purposes of Section 3.5(c)(ii), the
applicable percentage corresponding to the Rate Adjustment Ratio in effect
as of the most recent Calculation Date:
================================================================================
Rate Adjustment Applicable Percentage For Eurocurrency
Pricing Ratio Loans, Standby Letter of Credit Fee and
Level Trade Letter of Credit Fee
--------------------------------------------------------------------------------
I Less than or equal to 0.75%
2.75
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II Less than or equal to 0.50%
3.25 but greater than
2.75
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III Greater than 3.25 0.25%
--------------------------------------------------------------------------------
The Applicable Percentages shall be determined and adjusted quarterly on
the date (each a "Calculation Date") five Business Days after the date by
which the Credit Parties are required to provide the officer's certificate
in accordance with the provisions of Section 7.1(c) for the most recently
ended fiscal quarter of the Consolidated Parties; provided, however, that
(i) the initial Applicable Percentages shall be based on Pricing Level II
(as shown above) and shall remain at Pricing Level II until the first
Calculation Date subsequent to the Closing Date and, thereafter, the
Pricing Level shall be determined by the Rate Adjustment Ratio as of the
last day of the most recently ended fiscal quarter of the Consolidated
Parties preceding the applicable Calculation Date, and (ii) if the Credit
Parties fail to provide the officer's certificate to the Agency Services
Address as required by Section 7.1(c) for the last day of the most
recently ended fiscal quarter of the Consolidated Parties preceding the
applicable Calculation Date, the Applicable Percentage from such
Calculation Date shall be based on Pricing Level I until such time as an
appropriate officer's certificate is provided, whereupon the Pricing Level
shall be determined by the Rate Adjustment Ratio as of the last day of the
most recently ended fiscal quarter of the Consolidated Parties preceding
such Calculation Date. Each Applicable Percentage shall be effective from
one Calculation Date until the next Calculation Date. Any adjustment in
the Applicable Percentages shall be applicable to all existing Loans and
Letters of Credit as well as any new Loans and Letters of Credit made or
issued.
"Asset Disposition" means the disposition of any or all of the
assets (including without limitation the Capital Stock of a Subsidiary) of
any Consolidated Party whether by sale, lease, transfer or otherwise
(including pursuant to any casualty or condemnation event). The term
"Asset Disposition" shall not include (i) the sale of inventory in the
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ordinary course of business, or (ii) the sale or disposition of machinery
and equipment no longer used or useful in the conduct of such Person's
business.
"Available Foreign Currency" means (i) British Pounds Sterling,
French Francs, Swiss Francs, Deutsche Marks, Japanese Yen and Hong Kong
Dollars, (ii) any other freely available currency which is freely
transferrable and freely convertible into Dollars and in which dealings in
deposits are carried on in the London interbank market, which shall be
requested by the Borrower and approved by each Bank, and (iii) subject to
Section 3.19 hereof, the Euro.
"Bank" means any of the Persons identified as a "Bank" on the
signature pages hereto, and any Person which may become a Bank by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time
to time.
"Bankruptcy Event" means, with respect to any Person, the occurrence
of any of the following with respect to such Person: (i) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of such Person in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or ordering the winding up or
liquidation of its affairs; or (ii) there shall be commenced against such
Person an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or any case, proceeding or
other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed, undischarged or
unbonded for a period of sixty (60) consecutive days; or (iii) such Person
shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to
the entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or
make any general assignment for the benefit of creditors; or (iv) such
Person shall be unable to, or shall admit in writing its inability to, pay
its debts generally as they become due.
"Base Rate" means, for any day, the rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus one-half of one
percent (0.5%) and (b) the Prime Rate for such day. Any change in the Base
Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or
Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
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"Borrower" means WestPoint Xxxxxxx Inc., a Delaware corporation,
together with any permitted successors and assigns.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina or New York,
New York are authorized or required by law to close, except that, when
used in connection with (i) a Eurocurrency Loan a Business Day shall also
be a day on which dealings between banks are carried on in deposits of
Dollars in London, England, and (ii) in the case of Foreign Currency
Loans, a Business Day shall also be a day on which dealings between banks
are carried on in the relevant Available Foreign Currency in London,
England.
"Calculation Date" has the meaning set forth in the definition of
"Applicable Percentage" set forth in this Section 1.1.
"Capital Expenditures" means, without duplication, with respect to
any Credit Party any amounts expended or incurred for any purchase or
other acquisition for value of any asset that is classified on a balance
sheet of such Credit Party prepared in accordance with GAAP as a fixed or
capital asset or capital expenditure.
"Capital Lease" means, as applied to any Person, any lease of any
Property (whether real, personal or mixed) by that Person as lessee which,
in accordance with GAAP, is or should be accounted for as a capital lease
on the balance sheet of that Person.
"Capital Stock" means (i) in the case of a corporation, capital
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership,
partnership interests (whether general or limited), (iv) in the case of a
limited liability company, membership interests and (v) any other interest
or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner"
as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all securities
that such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 50% of the Voting Stock of the Borrower; or (b)
the Borrower consolidates with, or merges with or into, another person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any person or any person consolidates
with, or merges with or into, the Borrower, in any such event pursuant to
a transaction in which the outstanding Voting Stock of the Borrower is
converted into or exchanged for cash, securities, or other property, other
than any such transaction where (i) the outstanding Voting Stock of the
Borrower is converted into or exchanged for (1) Voting Stock (other than
Disqualified Stock) of the surviving or transferee corporation or its
parent corporation and/or (2) cash, securities and other property in an
amount which could be paid by the Borrower as a Restricted Payment and
(ii) immediately after such transaction no "person"
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or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
a "beneficial ownership" of all securities that such person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 50% of the
total Voting Stock of the surviving or transferee corporation or its
parent corporation, as applicable; or (c) during any consecutive two-year
period, individuals who at the beginning of such period constituted the
board of directors of the Borrower (together with any new directors whose
election by such board or whose nomination for election by the
stockholders of the Borrower was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of such board
then in office.
"Closing Date" means the date hereof.
"Co-Agent Bank" or "Co-Agent Banks," individually or collectively,
means The First National Bank of Chicago, ScotiaBanc Inc., The Bank of New
York, Wachovia Bank, N.A., Societe Generale, ABN Amro Bank, N.V. Atlanta
Agency, SunTrust Bank, Atlanta, and First Union National Bank.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.
"Collateral" means a collective reference to the collateral which is
identified in, and at any time will be covered by, the Collateral
Documents.
"Collateral Documents" has the meaning ascribed to such term in the
Collateral Trust Agreement.
"Collateral Trust Agreement" means that certain Second Amended and
Restated Collateral Trust Agreement dated as of the date hereof executed
by and among the Borrower, the Subsidiary Guarantors, the Banks, IBJ
Xxxxxxxx Bank and Trust Company, and the Trustee, as the same may be
amended from time to time.
"Commitment" means (i) with respect to each Bank, the Revolving
Commitment of such Bank, (ii) with respect to the Issuing Lender, the LOC
Commitment, and (iii) with respect to the Swingline Lender, the Swingline
Commitment.
"Competitive Bid" means an offer by a Bank to make a Competitive
Loan pursuant to the terms of Section 2.2.
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Bank in accordance with the provisions of Section 2.2, the rate of
interest offered by the Bank making the Competitive Bid.
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"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with the provisions of Section 2.2(b).
"Competitive Bid Request Fee" shall have the meaning assigned to
such term in Section 3.5(d).
"Competitive Loan" means a loan made by a Bank in its discretion
pursuant to the provisions of Section 2.2.
"Competitive Loan Banks" means, at any time, those Banks which have
Competitive Loans outstanding.
"Competitive Loan Maximum Amount" shall have the meaning assigned to
such term in Section 2.2(a).
"Consolidated Current Assets" means, with respect to the
Consolidated Parties, as at the time any determination thereof is to be
made, the amount, without duplication, that is classified on a balance
sheet of the Consolidated Parties as current assets in accordance with
GAAP (excluding cash and cash equivalents).
"Consolidated Current Liabilities" means, with respect to the
Consolidated Parties, as at the time any determination thereof is to be
made, the amount, without duplication, that is classified on a balance
sheet of the Consolidated Parties as current liabilities in accordance
with GAAP (excluding current maturities of long term debt, Indebtedness
outstanding under the Credit Documents, other short term Funded
Indebtedness permitted by this Agreement and liabilities for federal
income taxes).
"Consolidated EBITDA" means, for any period, the sum of (i)
Consolidated Net Income (or Consolidated Net Loss) for such period, plus
(ii) an amount which, in the determination of Consolidated Net Income (or
Consolidated Net Loss) for such period, has been deducted for (A)
Consolidated Interest Expense, (B) total federal, state, local and foreign
income, value added and similar taxes and (C) depreciation and
amortization expense, including, without limitation, amortization of
deferred financing fees and expenses, all as determined in accordance with
GAAP on a consolidated basis.
"Consolidated Interest Expense" means, for any period, interest
expense (excluding the amortization of debt discount and premium, the
interest component under Capital Leases and the implied interest component
under Permitted Receivables Financings and Synthetic Leases) of the
Consolidated Parties on a consolidated basis for such period, as
determined in accordance with GAAP.
"Consolidated Net Income" and "Consolidated Net Loss" mean,
respectively, for any period, the aggregate net income (or net loss) of
the Consolidated Parties on a consolidated basis, as determined in
accordance with GAAP. There shall be excluded in computing Consolidated
Net Income and Consolidated Net Loss, to the extent otherwise included
therein, (i) any gain or loss which is treated as an extraordinary item
under
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GAAP and any gain or loss from the sale of any asset other than a sale in
the ordinary course of business, (ii) the income or loss of any Person
(other than a Consolidated Subsidiary of the Borrower) in which any other
Person (other than the Borrower or any of its Consolidated Subsidiaries)
has a joint interest, except to the extent of the amount of dividends or
other distributions actually paid to the Borrower or any of is
Consolidated Subsidiaries by such Person during such period, (iii) the
income or loss of any Person accrued prior to the date it becomes a
Consolidated Subsidiary of the Borrower or is merged into or consolidated
with the Borrower or any of its Consolidated Subsidiaries or that Person's
assets are acquired by the Borrower or any of its Consolidated
Subsidiaries, (iv) the income of any Consolidated Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or
similar distributions by that Consolidated Subsidiary of that income is
not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Consolidated Subsidiary (the
only such restrictions as of the date hereof being those imposed by the
corporate law of any such Subsidiary's state of incorporation), and (v)
the amortization of Excess Reorganization Value during such period as
determined in accordance with GAAP.
"Consolidated Net Worth" means, as of any date, all amounts which
would be included under stockholders' equity on a balance sheet of the
Borrower and its Consolidated Subsidiaries determined as at such date on a
consolidated basis in accordance with GAAP. There shall be excluded in
computing Consolidated Net Worth (a) the amortization of Excess
Reorganization Value since January 1, 1993 as determined in accordance
with GAAP, (b) the effect of the Restructuring Charge, adjusted to reflect
the tax effect of such charge, (c) any non-cash minimum pension liability
adjustment determined in accordance with GAAP, without giving effect to
any adjustment for minority interest in the cases of clauses (a) and (b)
above, (d) the effect of the after-tax write-off of deferred financing
fees and expenses related to the Original Credit Agreement (and each
amendment or restatement thereof, including the 1994 Credit Agreement and
this Credit Agreement) and (e) the after-tax extraordinary expenses in
1998 and 1999 associated with the refinancing of the Borrower's 8-3/4%
senior notes, its 9-3/8% senior subordinated debentures, its 9% sinking
fund debentures and the Permitted Receivables Financing.
"Consolidated Parties" means a collective reference to the Borrower
and its Subsidiaries, and "Consolidated Party" means any one of them.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 3.2 hereof of a Eurocurrency Loan from
one Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to Section 3.2 or Sections 3.7 through 3.12, inclusive, of a Base
Rate Loan into a Eurocurrency Loan or a Eurocurrency Loan into a Base Rate
Loan.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the LOC Documents, the Collateral Trust Agreement,
each Joinder Agreement, the Agent's Fee Letter, the Collateral Documents
and all other related agreements and
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documents issued or delivered hereunder or thereunder or pursuant hereto
or thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time), and
"Credit Document" means any one of them.
"Credit Parties" means a collective reference to the Borrower, the
Foreign Borrowers and the Guarantors, and "Credit Party" means any one of
them.
"Credit Party Obligations" means, without duplication, (i) all of
the obligations of the Credit Parties to the Banks (including the Issuing
Lender), the Agent and/or the Trustee, whenever arising, under this Credit
Agreement, the Notes, the Collateral Documents or any of the other Credit
Documents (including, but not limited to, any interest accruing after the
occurrence of a Bankruptcy Event with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the
Bankruptcy Code) and (ii) liabilities and obligations, whenever arising,
owing from any Credit Party to any Bank, or any Affiliate of a Bank,
arising under any Hedging Agreement.
"Current Ratio" means, with respect to the Consolidated Parties, as
at the time any determination thereof is to be made, a ratio the numerator
of which shall be Consolidated Current Assets and the denominator of which
shall be Consolidated Current Liabilities.
"Default" means any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" means, at any time, any Bank that (a) has failed
to make a Loan or purchase a Participation Interest required pursuant to
the terms of this Credit Agreement within one Business Day of when due,
(b) other than as set forth in (a) above, has failed to pay to the Agent
or any Bank an amount owed by such Bank pursuant to the terms of this
Credit Agreement within one Business Day of when due, unless such amount
is subject to a good faith dispute or (c) has been deemed insolvent or has
become subject to a bankruptcy or insolvency proceeding or with respect to
which (or with respect to any of assets of which) a receiver, trustee or
similar official has been appointed.
"Determination Date" means with respect to any Foreign Currency Loan
and any Foreign Currency LOC Obligation:
(a) in connection with the origination of any new extension of
credit, the Business Day which is the earliest of the date such
credit is extended or the date the rate is set, as applicable;
(b) the last Business Day of each month; or
(c) the date of any reduction of the Revolving Committed
Amount pursuant to the terms of Section 3.4; and
in addition to the foregoing, such additional dates not more frequently
than once a month as may be determined by the Agent.
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"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable (in each
case, other than into common stock of the Borrower), pursuant to a sinking
fund obligation or otherwise, or is exchangeable for Indebtedness, or is
redeemable at the option of the holder thereof, in whole or in part, on or
prior to the final maturity date of the specified security.
Notwithstanding the foregoing, in no event shall Capital Stock that is
considered Disqualified Stock solely by reason of such Capital Stock being
convertible at the option of the holder of such capital stock into other
Capital Stock (other than Disqualified Stock) constitute Disqualified
Stock.
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount of
any Available Foreign Currency or an amount denominated in such Available
Foreign Currency, the Dollar Equivalent of such amount on the most recent
Determination Date or such other applicable date specified in this Credit
Agreement.
"Dollar Equivalent" means, on any date, with respect to an amount
denominated in an Available Foreign Currency, the amount of Dollars into
which the Agent could, in accordance with its practice from time to time
in the interbank foreign exchange market, convert such amount of such
Available Foreign Currency at its spot rate of exchange (inclusive of all
reasonable related costs of conversion, if any are actually incurred)
applicable to the relevant transaction at or about 10:00 A.M., Charlotte,
North Carolina time, on such date.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the
laws of any State of the United States or the District of Columbia.
"Eligible Assignee" means (i) a Bank; (ii) an Affiliate of a Bank;
and (iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 11.3, the Borrower (such approval not
to be unreasonably withheld or delayed by the Borrower and such approval
to be deemed given by the Borrower if no objection is received by the
assigning Bank and the Agent from the Borrower within two Business Days
after notice of such proposed assignment has been provided by the Agent to
the Borrower); provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental restrictions
relating to the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances
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or wastes into the environment including, without limitation, ambient air,
surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules
and regulations thereunder, all as the same may be in effect from time to
time. References to sections of ERISA shall be construed also to refer to
any successor sections.
"ERISA Affiliate" means an entity which is under common control with
any Consolidated Party within the meaning of Section 4001(a)(14) of ERISA,
or is a member of a group which includes any Consolidated Party and which
is treated as a single employer under Sections 414(b) or (c) of the Code.
"ERISA Event" means (i) with respect to any Plan, the occurrence of
a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (ii) the withdrawal by any
Consolidated Party or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple
Employer Plan; (iii) the distribution of a notice of intent to terminate
or the actual termination of a Plan pursuant to Section 4041(a)(2) or
4041A of ERISA; (iv) the institution of proceedings to terminate or the
actual termination of a Plan by the PBGC under Section 4042 of ERISA; (v)
any event or condition which might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (vi) the complete or partial withdrawal of any
Consolidated Party or any ERISA Affiliate from a Multiemployer Plan; (vii)
the conditions for imposition of a lien under Section 302(f) of ERISA
exist with respect to any Plan; or (viii) the adoption of an amendment to
any Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA.
"Euro" has the meaning ascribed to such term in Section 3.19.
"Eurocurrency Loan" means any Loan that bears interest at a rate
based upon the Eurocurrency Rate.
"Eurocurrency Rate" means, for any Eurocurrency Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Agent to be equal
to the quotient obtained by dividing (a) the Interbank Offered Rate for
such Eurocurrency Loan for such Interest Period by (b) 1 minus the
Eurocurrency Reserve Requirement for such Eurocurrency Loan for such
Interest Period.
"Eurocurrency Reserve Requirement" means, at any time, the maximum
rate at which reserves (including, without limitation, any marginal,
special, supplemental, or emergency reserves) are required to be
maintained under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) by member banks
of the Federal Reserve System against "Eurocurrency liabilities" (as such
term is used in Regulation D). Without limiting the effect of the
foregoing, the
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Eurocurrency Reserve Requirement shall reflect any other reserves required
to be maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the Adjusted
Eurocurrency Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurocurrency Loans. The Adjusted
Eurocurrency Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Requirement.
"Event of Default" shall have the meaning as defined in Section 9.1.
"Excess Reorganization Value" means the aggregate of (i) the excess
of the reorganization value over the value of identifiable assets
calculated in connection with Valley's adoption of "Fresh Start" reporting
in connection with Valley's bankruptcy reorganization in September 1992,
which required Valley to record its assets and its liabilities at their
fair values as of September 30, 1992, and (ii) the excess of the
consideration paid for the Minority Shares in WPP over the carrying value
of the Minority Shares at the date such consideration is paid.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Asset Disposition" means (i) the sale, conveyance or other
contribution of applicable Transferred Assets by Xxxxx or any Consolidated
Party as part of any Permitted Receivables Financing, (ii) any Asset
Disposition by any Consolidated Party to any Credit Party other than the
Borrower if the Credit Parties shall cause to be executed and delivered
such documents, instruments and certificates as the Agent may request so
as to cause the Credit Parties to be in compliance with the terms of
Sections 2.2 and 2.3 of the Collateral Trust Agreement, (iii) any sale or
other disposition of the Excluded Property (as defined in the Collateral
Trust Agreement), and (iv) the sale, conveyance or other disposition of
such other assets in other transactions provided that the aggregate
consideration received in all such other transactions by any Consolidated
Party does not exceed $100,000,000 in the aggregate from and after the
Closing Date and after giving effect to such Asset Disposition; provided,
however, in each instance referred to in subsection (iv) hereof, (a) after
giving effect such Asset Disposition, no Default or Event of Default
exists and (b) the aggregate consideration received by the Consolidated
Parties in connection with each such Asset Disposition shall be reasonably
equivalent in value to the properties sold, conveyed or otherwise disposed
of.
"Executive Officer" of any Person means any of the chief executive
officer, chief operating officer, president, vice president, chief
financial officer, treasurer or controller of such Person.
"Existing Letters of Credit" means the letters of credit described
by date of issuance, letter of credit number, undrawn amount, and date of
expiry on Schedule 1.1(A) hereto.
"Fees" means all fees payable pursuant to Section 3.5.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on
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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 charged to the Agent (in its individual capacity) on such day
on such transactions as determined by the Agent.
"Xxxxx" means WPS Receivables Corporation, a Delaware corporation
and any subsidiaries of WPS Receivables Corporation which purchase
Transferred Assets from Xxxxx pursuant to the Permitted Receivables
Financing.
"Foreign Borrower" means each of WestPoint Xxxxxxx (UK) Limited,
WestPoint Xxxxxxx (Europe) Limited and any additional Foreign Subsidiary
of the Borrower designated as a Foreign Borrower pursuant to Section 3.17.
"Foreign Borrower Obligations" shall have the meaning assigned to
such term in Section 4.1.
"Foreign Currency Committed Amount" means the Foreign Currency
Equivalent of $50,000,000.
"Foreign Currency Equivalent" means, on any date, with respect to an
amount denominated in Dollars, the amount of any applicable Available
Foreign Currency into which the Agent could, in accordance with its
practice from time to time in the interbank foreign exchange market,
convert such amount of Dollars at its spot rate of exchange (inclusive of
all reasonable related costs of conversion, if any are actually incurred)
applicable to the relevant transaction at or about 10:00 A.M., Charlotte,
North Carolina time, on such date.
"Foreign Currency Loans" shall have the meaning assigned to such
term in Section 2.3.
"Foreign Currency LOC Obligations" means LOC Obligations relating to
Letters of Credit denominated in Available Foreign Currencies.
"Foreign Currency Notes" means the promissory notes of each Foreign
Borrower in favor of each of the Banks evidencing the Foreign Currency
Loans made by each Bank to each Foreign Borrower, as such notes may be
amended, modified, restated, supplemented, extended, renewed or replaced
from time to time.
"Foreign Subsidiary" means, with respect to any Person, any
Subsidiary of such Person which is not a Domestic Subsidiary of such
Person.
"Funded Indebtedness" means, with respect to any Person, without
duplication, (a) all Indebtedness of such Person other than Indebtedness
of the types referred to in clause
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(e), (f), (g), and (i) of the definition of "Indebtedness" set forth in
this Section 1.1, (b) all Indebtedness of another Person of the type
referred to in clause (a) above secured by (or for which the holder of
such Funded Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of
production from, Property owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed, (c) all Guaranty
Obligations of such Person with respect to Indebtedness of the type
referred to in clause (a) above of another Person and (d) Indebtedness of
the type referred to in clause (a) above of any partnership or
unincorporated joint venture in which such Person is a general partner or
a joint venturer.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section
1.3.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantors" means a collective reference to each of the Subsidiary
Guarantors, together with their successors and permitted assigns, and
"Guarantor" means any one of them.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in
the ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any Property constituting security
therefor, (ii) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (iii) to lease
or purchase Property, securities or services primarily for the purpose of
assuring the holder of such Indebtedness, or (iv) to otherwise assure or
hold harmless the holder of such Indebtedness against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject to
any limitations set forth therein) be deemed to be an amount equal to the
outstanding principal amount (or maximum principal amount, if larger) of
the Indebtedness in respect of which such Guaranty Obligation is made.
"Hedging Agreements" means any interest rate protection agreement or
foreign currency exchange agreement between any Consolidated Party and any
Bank, or any Affiliate of a Bank.
"Inactive Subsidiaries" means any Subsidiary of the Borrower as of
the Closing Date that does not engage in any business activity or own any
asset or assets (including Capital Stock of another Person) with an
aggregate fair market value in excess of $500,000 and does not have any
Subsidiary that engages in any business activity or owns any asset or
assets (including Capital Stock of another Person) with an aggregate fair
market value in excess of $500,000.
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"Indebtedness" means, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made,
(c) all obligations of such Person under conditional sale or other title
retention agreements relating to Property purchased by such Person (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (d) all
obligations of such Person issued or assumed as the deferred purchase
price of Property or services purchased by such Person (other than trade
debt incurred in the ordinary course of business and due within six months
of the incurrence thereof) which would appear as liabilities on a balance
sheet of such Person, (e) all obligations of such Person under take-or-pay
or similar arrangements or under commodities agreements, (f) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on, or payable out of the proceeds of production from,
Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all Guaranty Obligations of such
Person, (h) the principal portion of all obligations of such Person under
Capital Leases, (i) all obligations of such Person under Hedging
Agreements, (j) the maximum amount of all standby letters of credit issued
or bankers' acceptances facilities created for the account of such Person
and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (k) all preferred Capital Stock issued by such Person and
which by the terms thereof could be (at the request of the holders thereof
or otherwise) subject to mandatory sinking fund payments, redemption or
other acceleration, and (l) the principal portion of all obligations of
such Person under Synthetic Leases.
"Interbank Offered Rate" means, for any Eurocurrency Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or
any successor page or other page applicable to Available Foreign
Currencies) as the London interbank offered rate for deposits in Dollars
or the applicable Available Foreign Currency, as appropriate, at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest
Period. If for any reason such rate is not available, the term "Interbank
Offered Rate" shall mean, for any Eurocurrency Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars or the applicable Available
Foreign Currencies at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term comparable
to such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to the
nearest 1/100 of 1%).
"Interest Coverage Ratio" means, with respect to the Consolidated
Parties on a consolidated basis for the twelve month period ending on the
last day of any fiscal quarter of the Consolidated Parties, the ratio of
(a) Consolidated EBITDA during the four (4) fiscal quarters ended at the
end of each fiscal quarter to (ii) Consolidated Interest Expense for such
period.
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"Interest Payment Date" means (a) as to Base Rate Loans (including
Swingline Loans), the last Business Day of each calendar quarter, the date
of repayment of principal of such Loan and the Maturity Date, and (b) as
to Eurocurrency Loans and Competitive Loans, the last day of each
applicable Interest Period, the date of repayment of principal of such
Loan and the Maturity Date, and in addition where the applicable Interest
Period for a Eurocurrency Loan or a Competitive Loan is greater than three
months, then also the date three months from the beginning of the Interest
Period and each three months thereafter.
"Interest Period" means, (i) as to Eurocurrency Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); and (ii) as to Competitive Loans,
a period commencing in each case on the date of the borrowing and ending
on the date specified in the applicable Competitive Bid whereby the offer
to make such Competitive Loan was extended; provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day), (b)
no Interest Period shall extend beyond the Maturity Date, and (c) where an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to
end, such Interest Period shall end on the last Business Day of such
calendar month.
"Interim Maturity Date" means the last day of any Interest Period.
"Investment" in any Person means (a) the acquisition (whether for
cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, Capital Stock, bonds, notes, debentures,
partnership, joint ventures or other ownership interests or other
securities of such other Person or (b) any deposit with, or advance, loan
or other extension of credit to, such Person (other than deposits made in
connection with the purchase of equipment or other assets in the ordinary
course of business) or (c) any other capital contribution to or investment
in such Person, including, without limitation, any Guaranty Obligations
(including any support for a letter of credit issued on behalf of such
Person) incurred for the benefit of such Person, but excluding any
Restricted Payment to such Person.
"Issuing Lender" means NationsBank.
"Issuing Lender Fees" shall have the meaning assigned to such term
in Section 3.5(c)(iii).
"Joinder Agreement" means a Joinder Agreement substantially in the
form of Exhibit 7.12 hereto, executed and delivered by an Additional
Credit Party in accordance with the provisions of Section 7.12.
"Letter of Credit" means (i) any letter of credit issued by the
Issuing Lender for the account of the Borrower in accordance with the
terms of Section 2.4 and (ii) any Existing Letters of Credit.
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"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loan" or "Loans" means the Revolving Loans, Competitive Loans, the
Foreign Currency Loans and the Swingline Loans (or a portion of any
Revolving Loan, any Competitive Loan, any Foreign Currency Loan or
Swingline Loan bearing interest at the Base Rate, the Adjusted
Eurocurrency Rate, or the Competitive Bid Rate, as applicable),
individually or collectively, as appropriate.
"LOC Commitment" means the commitment of the Issuing Lender to issue
Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to
the LOC Committed Amount.
"LOC Committed Amount" shall have the meaning assigned to such term
in Section 2.4.
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for
(i) the rights and obligations of the parties concerned or at risk or (ii)
any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
(ii) the aggregate amount of all drawings under Letters of Credit honored
by the Issuing Lender but not theretofore reimbursed by the Borrower.
"Material Adverse Effect" means a material adverse effect on (i) the
condition (financial or otherwise), operations, business, assets, or
liabilities of the Consolidated Parties taken as a whole, (ii) the ability
of any Credit Party to perform any material obligation under the Credit
Documents to which it is a party or (iii) the material rights and remedies
of the Banks under the Credit Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Laws, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means November 30, 2004.
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"Maximum Restricted Payment Amount" means the sum of (i) $9,210,000,
plus (ii) 50% of the Consolidated Net Income from and after March 31, 1998
until any relevant measurement date, plus (iii) the Net Cash Proceeds
received by the Borrower from the exercise of stock warrants or options by
employees or former employees of the Borrower in respect of Capital Stock
of the Borrower from and after March 31, 1998, plus (iv) the Net Cash
Proceeds received by Alamac Sub Holdings Inc. from the sale of its
facility located in Whitmire, South Carolina to the Borrower after March
31, 1998 in an amount equal to $21,790,978.
"Merger" means the merger consummated on December 10, 1993 pursuant
to which WPP was merged with and into Valley, with Valley as the surviving
corporation.
"Minimum Available Amount" means, as of the date of calculation, (i)
$100,000,000 if such calculation occurs during the period between October
1 and December 1 of any fiscal year, (ii) $85,000,000 if such calculation
occurs during the period between January 1 and March 31 or between July 1
and September 30 of any fiscal year, and (iii) $75,000,000 if such
calculation occurs during the period between April 1 and June 30 of any
fiscal year.
"Minority Shares" means the minority-owned common stock of WPP that
was converted into a right of the holders of such shares to receive $46
per share in connection with and by operation of the Merger.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor or
assignee of the business of such company in the business of rating
securities.
"Mortgage Instruments" shall have the meaning assigned such term in
Section 5.1(f).
"Mortgage Policies" shall have the meaning assigned such term in
Section 5.1(f).
"Mortgaged Properties" shall have the meaning assigned such term in
Section 5.1(f).
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan which any Consolidated Party
or any ERISA Affiliate and at least one employer other than the
Consolidated Parties or any ERISA Affiliate are contributing sponsors.
"NationsBank" means NationsBank, N. A. and its successors.
"Net Cash Proceeds" means the aggregate cash proceeds received by
the Consolidated Parties in respect of any Asset Disposition net of (a)
direct costs (including, without limitation, legal, accounting and
investment banking fees, and sales commissions)
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and (b) taxes paid or payable as a result thereof; it being understood
that "Net Cash Proceeds" shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by the Consolidated Parties in any Asset Disposition.
"Net Offering Proceeds" mean the proceeds received from the
incurrence of any Funded Indebtedness or the issuance of any Capital
Stock, net of the actual liabilities for reasonably anticipated cash taxes
in connection with such issuance or incurrence, if any, any underwriting,
brokerage and other customary selling commissions incurred in connection
with such issuance or incurrence, and reasonable legal, advisory and other
fees and expenses, including title and recording tax expenses, if any,
incurred in connection with such issuance or incurrence.
"Note" or "Notes" means the Revolving Notes, the Swingline Note,
and/or the Foreign Currency Notes, individually or collectively, as
appropriate.
"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Exhibit 2.1(b)(i), as required by Section
2.1(b)(i), Section 2.3(b) or Section 2.5(b)(i).
"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Exhibit 3.2, as
required by Section 3.2.
"Operating Lease" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property (whether real, personal or mixed)
which is not a Capital Lease other than any such lease in which that
Person is the lessor.
"Other Taxes" shall have the meaning assigned to such term in
Section 3.11.
"Participation Interest" means a purchase by a Bank of a
participation in Letters of Credit or LOC Obligations as provided in
Section 2.4 or in any Loans as provided in Section 3.14.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.
"Permitted Investments" means (i) any evidence of indebtedness,
maturing not more than one year after the date of issue, issued by the
United States of America or any instrumentality or agency thereof the
principal, interest and premium, if any, of which is guaranteed fully by,
or backed by the full faith and credit of, the United States of America,
(ii) any certificate of deposit, maturing not more than one year after the
date of purchase, issued by a commercial banking institution which is a
member of the Federal Reserve System or a Schedule A Canadian bank which
institution or bank has a combined capital and surplus and undivided
profits of not less than $200,000,000 (based, if applicable, on the
prevailing exchange rate for the applicable currency), (iii) overnight
time deposits with any Japanese, European or Schedule A Canadian bank
which bank has
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a combined capital and surplus and undivided profits of not less than
$200,000,000 (based on the prevailing exchange rate for the applicable
currency), (iv) commercial paper, maturing not more than 120 days after
the date of purchase, issued by a corporation (other than the Borrower or
any Subsidiary of the Borrower or any of their respective Affiliates)
organized and existing under the laws of any state within the United
States of America with a rating, at the time as of which any determination
thereof is to be made, of "P-1" (or higher) according to Moody's or "A-1"
(or higher) according to S&P, (v) shares or other evidences of
participation in any mutual fund which invests exclusively in one or more
of the foregoing and (vi) demand deposits with any bank or trust company
which has a combined capital and surplus and undivided profits of not less
than $200,000,000 and any other demand deposits maintained in the ordinary
course of business (A) not in excess of $100,000 at any one bank and (B)
for payroll purposes at any Bank or Affiliate of any Bank.
"Permitted Liens" means:
(i) Liens created pursuant to the Second Amended and Restated
Collateral Trust Agreement and the Collateral Documents, together
with the Liens granted to the Banks and/or the Agent pursuant to
this Agreement or any other Credit Documents in favor of the Agent
to secure the Credit Party Obligations;
(ii) Liens (other than Liens created or imposed under ERISA) for
taxes, assessments or governmental charges or levies not yet due and
payable or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the
Property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof);
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions
of title arising in the ordinary course of business, provided (A)
that such Liens secure only amounts not yet due and payable or, if
due and payable, are unfiled and no other action has been taken to
enforce the same or are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance
with GAAP have been established (and as to which the Property
subject to any such Lien is not yet subject to foreclosure, sale or
loss on account thereof), and (B) such obligations do not exceed
$10,000,000 in the aggregate at any one time outstanding;
(iv) Liens (other than Liens created or imposed under ERISA)
incurred or deposits made by any Consolidated Party in the ordinary
course of business to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, surety and appeal
bonds, performance and return-of-money bonds, fee and expense
arrangements with trustees and fiscal agents and other similar
obligations (exclusive of obligations for the payment of borrowed
money); provided that full provision for the payment of all such
obligations has been made on the books of
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such Person to the extent required by GAAP and that such obligations
do not exceed $20,000,000 in the aggregate at any one time
outstanding;
(v) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings involving
individually and in the aggregate liability of $10,000,000 or less
at any one time, provided the same are discharged, or that execution
or enforcement thereof is stayed pending appeal, within 60 days or,
in the case of any stay of execution or enforcement pending appeal,
within such lesser time during which such appeal may be taken;
(vi) such imperfections of title, covenants, restrictions,
easements, rights-of-way, minor defects or irregularities in title
and encumbrances on real property which in each case do not arise
out of the incurrence of Funded Indebtedness and which do not in the
aggregate interfere with or impair in any material respect the
utility, operation, value or marketability of the real property on
which such Lien is imposed;
(vii) Liens on Property of any Person securing purchase money
Indebtedness (including Capital Leases and Synthetic Leases) of such
Person to the extent permitted under Section 8.1(c), provided that
any such Lien attaches to such Property concurrently with or within
90 days after the acquisition thereof;
(viii) leases or subleases granted to others not interfering in any
material respect with the business of any Consolidated Party;
(ix) any interest of title of a lessor under, and Liens arising from
UCC financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to, leases permitted
by this Credit Agreement;
(x) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with
the importation of goods and other Liens incurred in the ordinary
course of business in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof, to secure partial, progress, advance or other payments
pursuant to any contract;
(xi) Liens in favor of Xxxxx or any Receivables Financier created or
deemed to exist in connection with a Permitted Receivables Financing
(including any related filings of any financing statements), but
only to the extent that any such Lien relates to the applicable
Transferred Assets actually sold, contributed, financed or otherwise
conveyed or pledged pursuant to such transaction;
(xii) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.6;
(xiii) normal and customary rights of setoff upon deposits of cash
in favor of Banks or other depository institutions;
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(xiv) Liens arising or deposits made in connection with worker's
compensation, unemployment insurance, old age pensions, social
security and other similar benefits which are not overdue or are
being contested in good faith by appropriate proceedings diligently
pursued, provided that in the case of any such contest such
provision for the payment of such Liens has been made on the books
of the Person against which the Liens have been placed if and to the
extent required by GAAP;
(xv) Liens incurred in the ordinary course of business to secure
performance under cotton futures contracts in connection with
transactions or positions in a contract for future delivery of
cotton, provided that reserves in accordance with GAAP have been
provided on the books of the Person who incurred such Liens;
(xvi) to the extent constituting a Lien, cash collateralized Letters
of Credit and other letters of credit; provided that with respect to
such other letters of credit the aggregate amount of cash collateral
shall not exceed $10,000,000 at any one time;
(xvii) Liens securing reimbursement obligations with respect to
documentary or commercial letters of credit issued for the account
of such Person which encumber documents and other property relating
to such documentary or commercial letters of credit and the products
and proceeds thereof;
(xviii) Liens granted to any Bank securing obligations under Hedging
Agreements relating to Indebtedness permitted by Section 8.1(d);
(xix) Liens arising under the Environmental Laws relating to
obligations that are not due and payable which Liens do not in the
aggregate have and could not reasonably be expected to have a
Material Adverse Effect on the affected Properties;
(xx) Liens existing as of the Closing Date and set forth on Schedule
1.1B; provided that no such Lien shall at any time be extended to or
cover any Property other than the Property subject thereto on the
Closing Date; and
(xxi) extensions, renewals and replacements of any Lien described in
sections (i) - (xx) above, provided that the principal amount of the
Indebtedness secured thereby is not increased and such extension or
renewal is limited to the Property so encumbered.
"Permitted Receivables Financing" means any one or more receivables
financings in which (i) Xxxxx or any Consolidated Party (a) sells (as
determined in accordance with GAAP) any accounts receivable, notes
receivable, rights to future lease payments or residuals (collectively,
together with certain related property relating thereto and the right to
collections thereon, being the "Transferred Assets") to any Person that is
not a Subsidiary or Affiliate of the Borrower (with respect to any such
transaction, the "Receivables Financier"), (b) borrows from such
Receivables Financier and secures such borrowings by a pledge of such
Transferred Assets, and/or (c) otherwise finances its acquisition of such
Transferred Assets and, in connection therewith, conveys an interest
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in such Transferred Assets to the Receivables Financier or (ii) any
Consolidated Party sells, conveys or otherwise contributes any Transferred
Assets to Xxxxx, which then (a) sells (as determined in accordance with
GAAP) any such receivables (or an interest therein) to any Receivables
Financier, (b) borrows from such Receivables Financier and secures such
borrowings by a pledge of such receivables or (c) otherwise finances its
acquisition of such receivables and, in connection therewith, conveys an
interest in such receivables to the Receivables Financier, provided that
(1) such receivables financing shall not involve any recourse to any
Consolidated Party for any reason other than (A) repurchases of
non-eligible receivables or (B) indemnifications for losses other than
credit losses related to the receivables sold in such financing, (2) such
receivables financing shall not include any Guaranty Obligations of any
Consolidated Party, (3) the Required Banks shall be reasonably satisfied
with the structure of and documentation for any such transaction and that
the terms of such transaction, including the discount at which receivables
are sold, the term of the commitment of the Receivables Financier
thereunder and any termination events, shall be (in the good faith
understanding of the Agent) consistent with those prevailing in the market
for similar transactions involving a receivables originator/servicer of
similar credit quality and a receivables pool of similar characteristics
and (4) the documentation for such transaction shall not be amended or
modified without the prior written approval of the Required Banks, which
approval shall not be unreasonably withheld. Without limiting the
generality of the foregoing, Permitted Receivables Financing shall include
the Receivables Securitization Facility as defined in the 1994 Credit
Agreement and any refinancing thereof for a term of one year to five years
meeting the criteria set forth in this definition.
"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other
enterprise (whether or not incorporated) or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by ERISA and with respect to which any
Consolidated Party or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of ERISA.
"Pledge Agreement" means the pledge agreement dated as of the
Closing Date in the form attached as Exhibit B to the Collateral Trust
Agreement, to be executed in favor of the Trustee by each of the Credit
Parties owning Capital Stock in a Subsidiary, as amended, modified,
restated or supplemented from time to time.
"Prime Rate" means the per annum rate of interest established from
time to time by NationsBank as its prime rate, which rate may not be the
lowest rate of interest charged by NationsBank to its customers.
"Principal Office" means the principal office of NationsBank,
presently located at Charlotte, North Carolina.
"Pro Forma Compliance Certificate" means a certificate of an
Executive Officer of the Borrower delivered to the Agent in connection
with (i) any merger or consolidation
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as referred to in Section 8.4, (ii) any Asset Disposition as referred to
in Section 8.5 or (iii) any Acquisition pursuant to Section 8.6(b), as
applicable, and containing detailed calculations (reasonably satisfactory
in form and content to the Agent) giving effect to the applicable
transaction on a pro forma basis, of the financial covenants set forth in
Section 7.11 hereof as of the most recent fiscal quarter end preceding the
date of the applicable transaction with respect to which the Agent shall
have received the Required Financial Information.
"Qualifying Bank" means any Bank which (i) as of the Closing Date is
a bank for the purposes of ss.349 Income and Corporation Taxes Act of 1988
of the United Kingdom (which under current law has the meaning given in
Section 840A of such Act) and (ii) as of the Closing Date will be within
the charge to the United Kingdom corporation tax as respects payment of
interest to be received by it under this Credit Agreement and the Foreign
Currency Notes.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Rate Adjustment Ratio" means, for the Borrower and its Consolidated
Subsidiaries on a consolidated basis as of the end of each fiscal quarter,
the ratio of (a) Consolidated EBITDA for the twelve month period ending as
of the end of such fiscal quarter to (b) cash Consolidated Interest
Expense paid during such twelve month period.
"Receivables Financier" shall have the meaning assigned to such term
in the definition of "Permitted Receivables Financing" set forth in this
Section 1.1.
"Register" shall have the meaning given such term in Section
11.3(c).
"Regulation T, U, or X" means Regulation T, U or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time
in effect and any successor to all or a portion thereof.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing
into the environment (including the abandonment or discarding of barrels,
containers and other closed receptacles) of any Materials of Environmental
Concern.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice
requirement has been waived by regulation.
"Required Financial Information" means, with respect to the
applicable Calculation Date, (i) the financial statements of the
Consolidated Parties required to be delivered pursuant to Section 7.1(a)
or (b) for the fiscal period or quarter ending as of such Calculation
Date, and (ii) the certificate of the chief financial officer of the
Borrower required by Section 7.1(c) to be delivered with the financial
statements described in clause (i) above.
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"Required Banks" means, at any time, Banks which are then in
compliance with their obligations hereunder (as determined by the Agent)
and holding in the aggregate at least 51% of (i) the Revolving Commitments
(and Participation Interests therein), or (ii) if the Commitments have
been terminated, the outstanding Loans and Participation Interests
(including the Participation Interests of the Issuing Lender in any
Letters of Credit).
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its material property
is subject.
"Restricted Debt Payment" means any purchase, prepayment, redemption
or other acquisition or retirement for value of any Indebtedness of the
Borrower under the Senior Notes or the Senior Note Indentures.
"Restricted Equity Payment" means (i) any dividend or other payment
or distribution, direct or indirect, on account of any shares of any class
of Capital Stock of any Consolidated Party, now or hereafter outstanding
(including without limitation any payment in connection with any merger or
consolidation involving any Consolidated Party), or to the direct or
indirect holders of any shares of any class of Capital Stock of any
Consolidated Party, now or hereafter outstanding, in their capacity as
such (other than dividends or distributions payable in the same class of
Capital Stock of the applicable Person or to any Credit Party (directly or
indirectly through Subsidiaries), (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of Capital Stock of any
Consolidated Party, now or hereafter outstanding, and (iii) any payment
made to retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of Capital Stock of
any Consolidated Party, now or hereafter outstanding.
"Restricted Payment" means a Restricted Debt Payment or a Restricted
Equity Payment.
"Restructuring Charge" means the $200 million charge ($124 million
after related income tax benefits) to WPP's operating expense recorded in
the third fiscal quarter of fiscal year 1993, which charge relates to (a)
the closing and consolidation of certain facilities, (b) the write-off of
certain equipment which will be replaced with modern and more efficient
equipment and (c) severance, outplacement and other costs associated with
plant closures and overhead reductions.
"Revolving Commitment" means, with respect to each Bank, the
commitment of such Bank in an aggregate principal amount at any time
outstanding of up to such Bank's Revolving Commitment Percentage of the
Revolving Committed Amount, (i) to make Revolving Loans in accordance with
the provisions of Section 2.1(a), (ii) to make Foreign Currency Loans in
accordance with the provisions of Section 2.3(a), (iii) to purchase
Participation Interests in Letters of Credit in accordance with the
provisions of Section
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2.4(c), and (iv) to purchase Participation Interests in Swingline Loans in
accordance with the provisions of Section 2.5(b).
"Revolving Commitment Percentage" means, for any Bank, the
percentage identified as its Revolving Commitment Percentage on Schedule
2.1(a), as such percentage may be modified in connection with any
assignment made in accordance with the provisions of Section 11.3.
"Revolving Committed Amount" shall have the meaning assigned to such
term in Section 2.1(a).
"Revolving Loans" shall have the meaning assigned to such term in
Section 2.1(a).
"Revolving Note" or "Revolving Notes" means the promissory notes of
the Borrower in favor of each of the Banks evidencing the Revolving Loans,
the Foreign Currency Loans of the Borrower and the Competitive Loans
provided pursuant to Sections 2.1(e), 2.2(i), and 2.3(e), and individually
or collectively, as appropriate, as such promissory notes may be amended,
modified, restated, supplemented, extended, renewed or replaced from time
to time.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party,
providing for the leasing to any Consolidated Party of any Property,
whether owned by such Consolidated Party as of the Closing Date or later
acquired, which has been or is to be sold or transferred by such
Consolidated Party to such Person or to any other Person from whom funds
have been, or are to be, advanced by such Person on the security of such
Property.
"Senior Note Indentures" means the indentures between the Borrower
and The Bank of New York, as trustee, each dated as of June 9, 1998, and
pursuant to which the Senior Notes have been issued, as amended, modified
or supplemented from time to time, together with any refinancing or
replacement thereof.
"Senior Notes" means the senior notes due 2005 and the senior notes
due 2008 issued in registered form under the Senior Note Indentures, which
notes in the aggregate evidence approximately $1.0 billion of Indebtedness
of the Borrower as of the Closing Date, as amended, modified or
supplemented from time to time, together with any refinancing or
replacement thereof.
"Single Employer Plan" means any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan or a Multiple Employer
Plan.
"Solvent" or "Solvency" means, with respect to any Person as of a
particular date, that on such date (i) such Person is able to realize upon
its assets and pay its debts and other
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liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (ii) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature in their
ordinary course, (iii) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction,
for which such Person's Property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged or is to engage, (iv) the fair
value of the Property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of
such Person and (v) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it
is intended that such liabilities will be computed at the amount which, in
light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Standby Letter of Credit Fee" shall have the meaning assigned to
such term in Section 3.5(c)(i).
"Subsidiary" means, as to any Person at any time, (a) any
corporation more than 50% of whose Capital Stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation (irrespective of whether or not at such
time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at such
time owned by such Person directly or indirectly through Subsidiaries, and
(b) any partnership, association, joint venture or other entity of which
such Person directly or indirectly through Subsidiaries owns at such time
more than 50% of the Capital Stock. For purposes of this Credit Agreement,
except as otherwise specified herein, neither Xxxxx nor WPSI Inc. shall be
treated as a Subsidiary of the Borrower.
"Subsidiary Guarantor" means each of the Domestic Subsidiaries other
than the Inactive Subsidiaries, being identified as a "Subsidiary
Guarantor" on Schedule 1.1C hereto, and each Additional Credit Party which
may hereafter execute a Joinder Agreement, together with their successors
and permitted assigns, and "Subsidiary Guarantor" means any one of them.
"Swingline Commitment" means the commitment of the Swingline Lender
to make Swingline Loans in an aggregate principal amount at any time
outstanding of up to the Swingline Committed Amount.
"Swingline Committed Amount" shall have the meaning assigned to such
term in Section 2.5(a).
"Swingline Lender" means NationsBank.
"Swingline Loan" shall have the meaning assigned to such term in
Section 2.5(a).
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"Swingline Note" means the promissory note of the Borrower in favor
of the Swingline Lender evidencing the Swingline Loans provided pursuant
to Section 2.5(d), as such promissory note may be amended, modified,
restated, supplemented, extended, renewed or replaced from time to time.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
product where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an Operating Lease.
"Taxes" shall have the meaning assigned to such term in Section
3.11.
"Trade Letter of Credit Fee" shall have the meaning assigned to such
term in Section 3.5(c)(ii).
"Transferred Assets" shall have the meaning assigned to such term in
the definition of "Permitted Receivables Financing" set forth in this
Section 1.1.
"Trustee" means NationsBank, N.A., and such other trustee or
co-trustee appointed under the Collateral Trust Agreement, together with
their respective successors and assigns.
"Valley" means Valley Fashions Corp., a Delaware corporation that is
the surviving entity of the Merger and changed its name to WestPoint
Xxxxxxx Inc.
"Voting Stock" means, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the absence
of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even though the
right so to vote has been suspended by the happening of such a
contingency.
"Wholly Owned Subsidiary" of any Person means any Subsidiary 100% of
whose Voting Stock is at the time owned by such Person directly or
indirectly through other Wholly Owned Subsidiaries.
"WPP" means West-Point Pepperell, Inc., a Georgia corporation that
was merged with and into the Borrower in connection with the Merger.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Banks hereunder
shall be prepared, in accordance with GAAP applied on a consistent basis, except
for departures from GAAP (i) which are not material, (y) which will not
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cause the financial statements to fail to meet the requirements of the
Securities and Exchange Commission for financial information to be contained or
incorporated by reference in registration statements, and (iii) which do not
cause the financial statements to fail to reflect accurately in all respects the
financial condition of the Borrower and its Consolidated Subsidiaries. All
calculations made for the purposes of determining compliance with this Credit
Agreement shall (except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with the most recent annual or
quarterly financial statements delivered pursuant to Section 7.1 (or, prior to
the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements as at December 31, 1997); provided,
however, if (a) the Credit Parties shall object to determining such compliance
on such basis at the time of delivery of such financial statements due to any
change in GAAP or the rules promulgated with respect thereto or (b) the Agent or
the Required Banks shall so object in writing within 60 days after delivery of
such financial statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by the Credit
Parties to the Banks as to which no such objection shall have been made.
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein,
each Bank severally agrees to make available to the Borrower such Bank's
Revolving Commitment Percentage (as set forth on Schedule 2.1(a)) of
revolving credit loans requested by the Borrower in Dollars ("Revolving
Loans") from time to time from the Closing Date until the Maturity Date,
or such earlier date as the Revolving Commitments shall have been
terminated as provided herein; provided, however, that the sum of the
aggregate principal amount of outstanding Revolving Loans shall not exceed
FIVE HUNDRED FIFTY MILLION DOLLARS ($550,000,000) (as such aggregate
maximum amount may be reduced from time to time as provided in Section
3.4, the "Revolving Committed Amount"); provided, further, (i) with regard
to each Bank individually, such Bank's outstanding Revolving Loans shall
not exceed such Bank's Revolving Commitment, (ii) with regard to the Banks
collectively, the aggregate principal amount of outstanding Revolving
Loans plus the aggregate principal amount of outstanding Competitive
Loans, plus the Dollar Amount of the aggregate outstanding principal
amount of Foreign Currency Loans, plus the aggregate principal amount of
outstanding Swingline Loans plus the Dollar Amount of LOC Obligations
outstanding shall not exceed the Revolving Committed Amount. Revolving
Loans may consist of Base Rate Loans or Eurocurrency Loans, or a
combination thereof, as the Borrower may request; provided, however, that
no more than eight (8) Eurocurrency Loans shall be outstanding under this
Section 2.1 at any time (it being understood that, for purposes hereof,
Eurocurrency Loans with different Interest Periods shall be considered as
separate Eurocurrency Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurocurrency Loan with a single
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Interest Period). Revolving Loans hereunder may be repaid and reborrowed
in accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a
Revolving Loan borrowing by written notice (or telephonic notice
promptly confirmed in writing) to the Agent not later than 12:00
noon. (Charlotte, North Carolina time) on the Business Day prior to
the date of the requested borrowing in the case of Base Rate Loans,
and on the third Business Day prior to the date of the requested
borrowing in the case of Eurocurrency Loans. Each such request for
borrowing shall be irrevocable and shall specify (A) that a
Revolving Loan is requested, (B) the date of the requested borrowing
(which shall be a Business Day), (C) the aggregate principal amount
to be borrowed, and (D) whether the borrowing shall be comprised of
Base Rate Loans, Eurocurrency Loans or a combination thereof, and if
Eurocurrency Loans are requested, the Interest Period(s) therefor.
If the Borrower shall fail to specify in any such Notice of
Borrowing (I) an applicable Interest Period in the case of a
Eurocurrency Loan, then such notice shall be deemed to be a request
for an Interest Period of one month, or (II) the type of Revolving
Loan requested, then such notice shall be deemed to be a request for
a Base Rate Loan hereunder. The Agent shall give notice to each Bank
promptly upon receipt of each Notice of Borrowing pursuant to this
Section 2.1(b)(i), the contents thereof and each such Bank's share
of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Eurocurrency Loan that is a
Revolving Loan shall be in a minimum aggregate principal amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof
(or the remaining amount of the Revolving Committed Amount, if
less). Each Base Rate Loan shall be in a minimum aggregate principal
amount of $1,000,000 and integral multiples of $1,000,000 in excess
thereof (or the remaining amount of the Revolving Committed Amount,
if less).
(iii) Advances. Each Bank will make its Revolving Commitment
Percentage of each Revolving Loan borrowing available to the Agent
for the account of the Borrower as specified in Section 3.15, or in
such other manner as the Agent may specify in writing, by 1:00 P.M.
(Charlotte, North Carolina time) on the date specified in the
applicable Notice of Borrowing in Dollars and in funds immediately
available to the Agent. Such borrowing will then be made available
to the Borrower by the Agent by crediting the account of the
Borrower on the books of such office with the aggregate of the
amounts made available to the Agent by the Banks and in like funds
as received by the Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Maturity Date, unless accelerated sooner
pursuant to Section 9.2.
(d) Interest. Subject to the provisions of Section 3.1,
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(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base
Rate Loans shall bear interest at a per annum rate equal to the Base
Rate.
(ii) Eurocurrency Loans. During such periods as Revolving
Loans shall be comprised in whole or in part of Eurocurrency Loans,
such Eurocurrency Loans shall bear interest at a per annum rate
equal to the Adjusted Eurocurrency Rate.
Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).
(e) Revolving Notes. The Revolving Loans made by each Bank shall be
evidenced by a duly executed promissory note of the Borrower to such Bank
in substantially the form of Exhibit 2.1(e).
2.2 Competitive Loan Subfacility.
(a) Competitive Loans. Subject to the terms and conditions hereof
and in reliance upon the representations and warranties set forth herein,
the Borrower may, from time to time from the Closing Date until the
Maturity Date, request and each Bank may, in its sole discretion, agree to
make, Competitive Loans in Dollars to the Borrower; provided, however,
that (i) the aggregate principal amount of outstanding Competitive Loans
shall not at any time exceed the lesser of (a) FIVE HUNDRED FIFTY MILLION
DOLLARS ($550,000,000) or (b) the Revolving Committed Amount (the
"Competitive Loan Maximum Amount"), and (ii) the sum of the aggregate
principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding Competitive Loans plus the Dollar Amount
of the aggregate principal amount of outstanding Foreign Currency Loans
plus the aggregate principal amount of outstanding Swingline Loans plus
the Dollar Amount of LOC Obligations outstanding shall not at any time
exceed the Revolving Committed Amount. Each Competitive Loan shall be not
less than $10,000,000 in the aggregate and integral multiples of
$1,000,000 in excess thereof (or the remaining portion of the Competitive
Loan Maximum Amount, if less). Each Competitive Loan shall have a maturity
of at least seven (7) days but not more than three hundred sixty (360)
days.
(b) Competitive Bid Requests. The Borrower may solicit Competitive
Bids by delivery of a Competitive Bid Request substantially in the form of
Exhibit 2.2(b)-1 to the Agent by 12:00 Noon (Charlotte, North Carolina
time) on a Business Day not less than one (1) nor more than four (4)
Business Days prior to the date of a requested Competitive Loan borrowing.
A Competitive Bid Request shall specify (i) the date of the requested
Competitive Loan borrowing (which shall be a Business Day), (ii) the
amount of the requested Competitive Loan borrowing and (iii) the
applicable Interest Periods requested and shall be accompanied by payment
of the Competitive Bid Request Fee. The Agent shall, promptly following
its receipt of a Competitive Bid Request under this subsection (b), notify
the Banks of its receipt and the contents thereof and invite the Banks to
submit Competitive Bids in response thereto. A form of such notice is
provided in Exhibit 2.2(b)-2. No more than four (4) Competitive Bid
Requests (e.g., the Borrower may request Competitive Bids for no more than
four (4) different Interest Periods at a time) shall be
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submitted at any one time and Competitive Bid Requests may be made no more
frequently than once every five (5) Business Days.
(c) Competitive Bid Procedure. Each Bank may, in its sole
discretion, make one or more Competitive Bids to the Borrower in response
to a Competitive Bid Request. Each Competitive Bid must be received by the
Agent not later than 10:00 A.M. (Charlotte, North Carolina time) on the
Business Day next succeeding the date of receipt by the Agent of the
related Competitive Bid Request. A Bank may offer to make all or part of
the requested Competitive Loan borrowing and may submit multiple
Competitive Bids in response to a Competitive Bid Request. The Competitive
Bid shall specify (i) the particular Competitive Bid Request as to which
the Competitive Bid is submitted, (ii) the minimum (which shall be not
less than $10,000,000 and integral multiples of $1,000,000 in excess
thereof) and maximum principal amounts of the requested Competitive Loan
or Loans as to which the Bank is willing to make, and (iii) the applicable
interest rate or rates and Interest Period or Periods therefor. A form of
such Competitive Bid is provided in Exhibit 2.2(c). A Competitive Bid
submitted by a Bank in accordance with the provisions hereof shall be
irrevocable. The Agent shall promptly notify the Borrower of all
Competitive Bids made and the terms thereof. The Agent shall send a copy
of each of the Competitive Bids to the Borrower for its records as soon as
practicable.
(d) Submission of Competitive Bids by Agent. If the Agent, in its
capacity as a Bank, elects to submit a Competitive Bid in response to any
Competitive Bid Request, it shall submit such Competitive Bid directly to
the Borrower one-half of an hour earlier than the latest time at which the
other Banks are required to submit their Competitive Bids to the Agent in
response to such Competitive Bid Request pursuant to subsection (c) above.
(e) Acceptance of Competitive Bids. The Borrower may, in its sole
and absolute discretion, subject only to the provisions of this subsection
(e), accept or refuse any Competitive Bid offered to it. To accept a
Competitive Bid, the Borrower shall give written notification (or
telephonic notice promptly confirmed in writing) substantially in the form
of Exhibit 2.2(e) of its acceptance of any or all such Competitive Bids to
the Agent by 11:00 A.M. (Charlotte, North Carolina time) on the date on
which notice of election to make a Competitive Bid is to be given to the
Agent by any Bank; provided, however, (i) the failure by the Borrower to
give timely notice of its acceptance of a Competitive Bid shall be deemed
to be a refusal thereof, (ii) the Borrower may accept Competitive Bids
only in ascending order of rates, (iii) the aggregate amount of
Competitive Bids accepted by the Borrower shall not exceed the principal
amount specified in the Competitive Bid Request, (iv) the Borrower may
accept a portion of a Competitive Bid in the event, and to the extent,
acceptance of the entire amount thereof would cause the Borrower to exceed
the principal amount specified in the Competitive Bid Request, subject
however to the minimum amounts provided herein (and provided that where
two or more Banks submit such a Competitive Bid at the same Competitive
Bid Rate, then pro rata between or among such Banks) and (v) no bid shall
be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $10,000,000 and integral multiples of
$1,000,000 in excess thereof, except that where a portion of a Competitive
Bid is accepted in accordance with the provisions of subsection (iv)
hereof, then in a minimum principal amount of $5,000,000 and integral
multiples of $1,000,000 in excess thereof (but not in any
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event less than the minimum amount specified in the Competitive Bid), and
in calculating the pro rata allocation of acceptances of portions of
multiple bids at a particular Competitive Bid Rate pursuant to subsection
(iv) hereof, the amounts shall be rounded to integral multiples of
$1,000,000 in a manner which shall be in the discretion of the Borrower. A
notice of acceptance of a Competitive Bid given by the Borrower in
accordance with the provisions hereof shall be irrevocable. The Agent
shall, not later than 12:00 Noon (Charlotte, North Carolina time) on the
date of receipt by the Agent of a notification from the Borrower of its
acceptance and/or refusal of Competitive Bids, notify each affected Bank
of its receipt and the contents thereof. Upon its receipt from the Agent
of notification of the Borrower's acceptance of its Competitive Bid in
accordance with the terms of this subsection (e), each successful bidding
Bank will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Loan in respect of which its
bid has been accepted.
(f) Funding of Competitive Loans. Each Bank which is to make a
Competitive Loan shall make its Competitive Loan borrowing available to
the Agent for the account of the Borrower at the office of the Agent
specified in Schedule 2.1(a), or at such other office as the Agent may
designate in writing, by 1:00 P.M. (Charlotte, North Carolina time) on the
date specified in the Competitive Bid Request in Dollars and in funds
immediately available to the Agent. Such borrowing will then be made
available to the Borrower by crediting the account of the Borrower on the
books of such office with the aggregate of the amount made available to
the Agent by the applicable Competitive Loan Banks and in like funds as
received by the Agent.
(g) Maturity of Competitive Loans. Each Competitive Loan shall
mature and be due and payable in full on the last day of the Interest
Period applicable thereto, unless accelerated sooner pursuant to Section
9.2. Unless the Borrower shall give notice to the Agent otherwise, the
Borrower shall be deemed to have requested a Revolving Loan borrowing in
the amount of the maturing Competitive Loan, the proceeds of which will be
used to repay such Competitive Loan.
(h) Interest on Competitive Loans. Subject to the provisions of
Section 3.1, Competitive Loans shall bear interest in each case at the
Competitive Bid Rate applicable thereto. Interest on Competitive Loans
shall be payable in arrears on each Interest Payment Date.
(i) Competitive Loan Notes. The Competitive Loans made by each Bank
shall be evidenced by the Revolving Note of the Borrower to such Bank
substantially in the form of Exhibit 2.1(e).
2.3 Foreign Currency Loan Subfacility.
(a) Foreign Currency Commitment. Subject to the terms and conditions
hereof, each Bank severally agrees to make foreign currency revolving loans in
Available Foreign Currencies (the "Foreign Currency Loans") to the Borrower and
each Foreign Borrower from time to time in the amount of such Bank's Revolving
Commitment Percentage of such Foreign Currency Loans from time to time for the
purposes hereinafter set forth; provided, that (i) the Dollar Amount
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(determined as of the most recent Determination Date) of the sum of all Foreign
Currency Loans shall not exceed FIFTY MILLION DOLLARS ($50,000,000) at any time
(the "Foreign Currency Committed Amount"), (ii) the aggregate principal amount
of outstanding Revolving Loans plus the aggregate principal amount of
outstanding Competitive Loans plus the aggregate principal amount of outstanding
Swingline Loans plus the Dollar Amount (determined as of the most recent
Determination Date) of the aggregate outstanding principal amount Foreign
Currency Loans plus the Dollar Amount of LOC Obligations shall not exceed the
Revolving Committed Amount. Foreign Currency Loans shall consist solely of
Eurocurrency Loans and may be repaid and reborrowed in accordance with the
provisions hereof.
(b) Foreign Currency Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Foreign
Currency Loan borrowing on its own behalf or on behalf of a Foreign
Borrower by written notice (or telephone notice promptly confirmed in
writing) to the Agent not later than 12:00 noon (Charlotte, North Carolina
time) on the third Business Day prior to the date of the requested
borrowing. Each such request for borrowing shall be irrevocable and shall
specify (A) that a Foreign Currency Loan is requested, (B) the applicable
Borrower or Foreign Borrower of such Loan, (C) the requested Available
Foreign Currency, (D) the date of the requested borrowing (which shall be
a Business Day), (E) the aggregate principal amount to be borrowed and (F)
the Interest Period(s) therefor. If the Borrower shall fail to specify in
any such Notice of Borrowing an applicable Interest Period, then such
notice shall be deemed to be a request for an Interest Period of one
month. The Agent shall give notice to each Bank promptly upon receipt of
each Notice of Borrowing, the contents thereof and each such Bank's share
of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Foreign Currency Loan shall be in a
minimum aggregate principal amount equal to the applicable Foreign
Currency Equivalent of approximately $1,500,000 and integral multiples of
the applicable Foreign Currency Equivalent of approximately $750,000 in
excess thereof (or the remaining amount of the Foreign Currency
Commitment, if less).
(iii) Advances. Each Bank will make its Revolving Commitment
Percentage of each Foreign Currency Loan borrowing available to the Agent
by 1:00 P.M., local time in the place and account specified by the Agent,
on the date specified in the applicable Notice of Borrowing by deposit
with the Agent, of same day funds in the applicable Available Foreign
Currency. Such deposit will be made to such accounts in the primary market
for such Available Foreign Currencies as the Agent shall specify from time
to time by notice to the Banks. To the extent funds are received from the
Banks, the Agent shall promptly make such funds available by wire transfer
to such accounts as the Borrower shall have specified to the Agent.
(c) Repayment. The principal amount of all Foreign Currency Loans shall be
due and payable in full in the applicable Available Foreign Currency on the
Maturity Date, unless accelerated sooner pursuant to Section 9.2.
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(d) Interest. Subject to the provisions of Section 3.1, Foreign Currency
Loans shall bear interest at a per annum rate equal to the Adjusted Eurocurrency
Rate. Interest on Foreign Currency Loans shall be payable (in the applicable
Available Foreign Currency) in arrears on each applicable Interest Payment Date
(or at such other times as may be specified herein).
(e) Notes. The Foreign Currency Loans to the Borrower shall be evidenced
by the Revolving Note of the Borrower substantially in the form of Exhibit
2.1(e). The Foreign Currency Loans to the Foreign Borrowers shall be evidenced
by Foreign Currency Notes of each such Foreign Borrower substantially in the
form of Exhibit 2.3(e).
(f) Maximum Number of Loans. The maximum number of Loans outstanding at
any one time under this Section 2.3 shall be limited to five (5).
2.4 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the
LOC Documents, if any, and any other terms and conditions which the
Issuing Lender may reasonably require and in reliance upon the
representations and warranties set forth herein, the Issuing Lender agrees
to issue, and each Bank severally agrees to participate in the issuance by
the Issuing Lender of, standby and trade Letters of Credit in Dollars and
in Available Foreign Currencies from time to time from the Closing Date
until the date five (5) Business Days prior to the Maturity Date as the
Borrower may request, in a form acceptable to the Issuing Lender;
provided, however, that (i) the aggregate Dollar Amount of LOC Obligations
outstanding shall not at any time exceed FIFTY MILLION DOLLARS
($50,000,000) (the "LOC Committed Amount") and (ii) the sum of the
aggregate principal amount of outstanding Revolving Loans plus the
aggregate principal amount of outstanding Competitive Loans plus the
aggregate principal amount of outstanding Swingline Loans plus the Dollar
Amount of the aggregate outstanding principal amount of Foreign Currency
Loans plus the Dollar Amount of LOC Obligations outstanding shall not at
any time exceed the Revolving Committed Amount. No Letter of Credit shall
(x) have an original expiry date more than one year from the date of
issuance or (y) as originally issued or as extended, have an expiry date
extending beyond the Maturity Date. Each Letter of Credit shall comply
with the related LOC Documents. The issuance and expiry dates of each
Letter of Credit shall be a Business Day.
(b) Notice and Reports. The request for the issuance of a Letter of
Credit shall be submitted by the Borrower to the Issuing Lender at least
five (5) Business Days prior to the requested date of issuance. The
Issuing Lender will, at least monthly and more frequently upon request,
disseminate to each of the Banks a detailed report specifying the Letters
of Credit which are then issued and outstanding and any activity with
respect thereto which may have occurred since the date of the prior
report, and including therein, among other things, the beneficiary, the
face amount and the expiry date, as well as any payment or expirations
which may have occurred.
(c) Participation. Each Bank, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a Participation
Interest from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any collateral relating
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thereto, in each case in an amount equal to its pro rata share of the
obligations under such Letter of Credit (based on the respective Revolving
Commitment Percentages of the Banks) and shall absolutely, unconditionally
and irrevocably assume and be obligated to pay to the Issuing Lender and
discharge when due, its pro rata share of the obligations arising under
such Letter of Credit. Without limiting the scope and nature of each
Bank's Participation Interest in any Letter of Credit, to the extent that
the Issuing Lender has not been reimbursed as required hereunder or under
any such Letter of Credit, each such Bank shall pay to the Issuing Lender
its pro rata share of such unreimbursed drawing in same day funds on the
day of notification by the Issuing Lender of an unreimbursed drawing
pursuant to the provisions of subsection (d) below. The obligation of each
Bank to so reimburse the Issuing Lender shall be absolute and
unconditional and shall not be affected by the occurrence of a Default, an
Event of Default or any other occurrence or event. Any such reimbursement
shall not relieve or otherwise impair the obligation of the Borrower to
reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the Borrower. Unless the
Borrower shall immediately notify the Issuing Lender that the Borrower
intends to otherwise reimburse the Issuing Lender for such drawing, the
Borrower shall be deemed to have requested that the Banks make a Revolving
Loan in the Dollar Amount of the drawing as provided in subsection (e)
below on the related Letter of Credit, the proceeds of which will be used
to satisfy the related reimbursement obligations. The Borrower promises to
reimburse the Issuing Lender on the day of drawing under any Letter of
Credit (either with the proceeds of a Revolving Loan obtained hereunder or
otherwise) in same day funds. If the Borrower shall fail to reimburse the
Issuing Lender as provided hereinabove, the unreimbursed Dollar Amount of
such drawing shall bear interest at a per annum rate equal to the Base
Rate plus 2%. The Borrower's reimbursement obligations hereunder shall be
absolute and unconditional under all circumstances irrespective of any
rights of setoff, counterclaim or defense to payment the Borrower may
claim or have against the Issuing Lender, the Agent, the Banks, the
beneficiary of the Letter of Credit drawn upon or any other Person,
including without limitation any defense based on any failure of the
Borrower or any other Credit Party to receive consideration or the
legality, validity, regularity or unenforceability of the Letter of
Credit. The Issuing Lender will promptly notify the other Banks of the
amount of any unreimbursed drawing and each Bank shall promptly pay to the
Agent for the account of the Issuing Lender in Dollars, and in immediately
available funds, the amount of such Bank's pro rata share of such
unreimbursed drawing. Such payment shall be made on the day such notice is
received by such Bank from the Issuing Lender if such notice is received
at or before 2:00 P.M. (Charlotte, North Carolina time) otherwise such
payment shall be made at or before 12:00 Noon (Charlotte, North Carolina
time) on the Business Day next succeeding the day such notice is received.
If such Bank does not pay such amount to the Issuing Lender in full upon
such request, such Bank shall, on demand, pay to the Agent for the account
of the Issuing Lender interest on the unpaid Dollar Amount during the
period from the date of such drawing until such Bank pays such amount to
the Issuing Lender in full at a rate per annum equal to, if paid within
two (2) Business Days of the date that such Bank is required to make
payments of such amount pursuant to the preceding sentence, the Federal
Funds Rate and thereafter at a rate equal to the Base Rate. Each Bank's
obligation to make
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such payment to the Issuing Lender, and the right of the Issuing Lender to
receive the same, shall be absolute and unconditional, shall not be
affected by any circumstance whatsoever and without regard to the
termination of this Credit Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any
offset, abatement, withholding or reduction whatsoever. Simultaneously
with the making of each such payment by a Bank to the Issuing Lender, such
Bank shall, automatically and without any further action on the part of
the Issuing Lender or such Bank, acquire a Participation Interest in an
amount equal to such payment (excluding the portion of such payment
constituting interest owing to the Issuing Lender) in the related
unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim against
the Borrower with respect thereto.
(e) Repayment with Revolving Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Revolving Loan
advance to reimburse a drawing under a Letter of Credit, the Agent shall
give notice to the Banks that a Revolving Loan has been requested or
deemed requested by the Borrower to be made in connection with a drawing
under a Letter of Credit, in which case a Revolving Loan advance comprised
of Base Rate Loans (or Eurocurrency Loans to the extent the Borrower has
complied with the procedures of Section 2.1(b)(i) with respect thereto)
shall be immediately made to the Borrower by all Banks (notwithstanding
any termination of the Commitments pursuant to Section 9.2) pro rata based
on the respective Revolving Commitment Percentages of the Banks
(determined before giving effect to any termination of the Commitments
pursuant to Section 9.2) and the proceeds thereof shall be paid directly
to the Issuing Lender for application to the respective LOC Obligations.
Each such Bank hereby irrevocably agrees to make its pro rata share of
each such Revolving Loan immediately upon any such request or deemed
request in the amount, in the manner and on the date specified in the
preceding sentence notwithstanding (i) the amount of such borrowing may
not comply with the minimum amount for advances of Revolving Loans
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure for any such request or deemed request
for Revolving Loan to be made by the time otherwise required hereunder,
(v) whether the date of such borrowing is a date on which Revolving Loans
are otherwise permitted to be made hereunder or (vi) any termination of
the Commitments relating thereto immediately prior to or contemporaneously
with such borrowing. In the event that any Revolving Loan cannot for any
reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to the Borrower or any other Credit Party),
then each such Bank hereby agrees that it shall forthwith purchase (as of
the date such borrowing would otherwise have occurred, but adjusted for
any payments received from the Borrower on or after such date and prior to
such purchase) from the Issuing Lender such Participation Interests in the
outstanding LOC Obligations as shall be necessary to cause each such Bank
to share in such LOC Obligations ratably (based upon the respective
Revolving Commitment Percentages of the Banks (determined before giving
effect to any termination of the Commitments pursuant to Section 9.2)),
provided that at the time any purchase of Participation Interests pursuant
to this sentence is actually made, the purchasing Bank shall be required
to pay to the Issuing
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Lender, to the extent not paid to the Issuing Lender by the Borrower in
accordance with the terms of subsection (d) above, interest on the Dollar
Amount of Participation Interests purchased for each day from and
including the day upon which such borrowing would otherwise have occurred
to but excluding the date of payment for such Participation Interests, at
the rate equal to, if paid within two (2) Business Days of the date of the
Revolving Loan advance, the Federal Funds Rate, and thereafter at a rate
equal to the Base Rate.
(f) Designation of Consolidated Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.4(a), a Letter of Credit
issued hereunder may contain a statement to the effect that such Letter of
Credit is issued for the account of a Consolidated Party other than the
Borrower, provided that notwithstanding such statement, the Borrower shall
be the actual account party for all purposes of this Credit Agreement for
such Letter of Credit and such statement shall not affect the Borrower's
reimbursement obligations hereunder with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as
the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP"), in which case the UCP may
be incorporated therein and deemed in all respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section 2.4, the
Borrower hereby agrees to pay, and protect, indemnify and save each Bank
harmless from and against, any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) that such Bank may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of any Letter of
Credit or (B) the failure of the Issuing Lender to honor a drawing under a
Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between the Borrower and the Banks (including the Issuing
Lender), the Borrower shall assume all risks of the acts, omissions or
misuse of any Letter of Credit by the beneficiary thereof. No Bank
(including the Issuing Lender) shall be responsible: (A) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign any Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid
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or ineffective for any reason; (C) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (D) for
any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (E) for any consequences arising from causes beyond
the control of such Bank, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the vesting of
the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
any Bank (including the Issuing Lender), under or in connection with any
Letter of Credit or the related certificates, if taken or omitted in good
faith, shall not put such Bank under any resulting liability to the
Borrower or any other Credit Party. It is the intention of the parties
that this Credit Agreement shall be construed and applied to protect and
indemnify each Bank (including the Issuing Lender) against any and all
risks involved in the issuance of the Letters of Credit, all of which
risks are hereby assumed by the Borrower (on behalf of itself and each of
the other Credit Parties), including, without limitation, any and all
Government Acts. No Bank (including the Issuing Lender) shall, in any way,
be liable for any failure by such Bank or anyone else to pay any drawing
under any Letter of Credit as a result of any Government Acts or any other
cause beyond the control of such Bank.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection (d)
above. The obligations of the Borrower under this subsection (i) shall
survive the termination of this Credit Agreement. No act or omission of
any current or prior beneficiary of a Letter of Credit shall in any way
affect or impair the rights of the Banks (including the Issuing Lender) to
enforce any right, power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
subsection (i), the Borrower shall have no obligation to indemnify any
Bank (including the Issuing Lender) in respect of any liability incurred
by such Bank (A) arising solely out of the gross negligence or willful
misconduct of such Bank, as determined by a court of competent
jurisdiction, or (B) caused by such Bank's failure to pay under any Letter
of Credit after presentation to it of a request strictly complying with
the terms and conditions of such Letter of Credit, as determined by a
court of competent jurisdiction, unless such payment is prohibited by any
law, regulation, court order or decree.
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the Banks
are only those expressly set forth in this Credit Agreement and that the
Issuing Lender shall be entitled to assume that the conditions precedent
set forth in Section 5.2 have been satisfied unless it shall have acquired
actual knowledge that any such condition precedent has not been satisfied;
provided, however, that nothing set forth in this Section 2.4 shall be
deemed to prejudice the right of any Bank to recover from the Issuing
Lender any amounts made available by such Bank to the Issuing Lender
pursuant to this Section 2.4 in the event that it is determined by a court
of competent jurisdiction that the payment with respect to a Letter of
Credit constituted gross negligence or willful misconduct on the part of
the Issuing Lender.
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(k) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any letter
of credit application), this Credit Agreement shall control.
2.5 Swingline Loan Subfacility.
(a) Swingline Commitment. Subject to the terms and conditions hereof and
in reliance upon the representations and warranties set forth herein, the
Swingline Lender, in its individual capacity, agrees to make certain revolving
credit loans requested by the Borrower in Dollars to the Borrower (each a
"Swingline Loan" and, collectively, the "Swingline Loans") from time to time
from the Closing Date until the Maturity Date for the purposes hereinafter set
forth; provided, however, (i) the aggregate principal amount of Swingline Loans
outstanding at any time shall not exceed TWENTY-FIVE MILLION DOLLARS
($25,000,000) (the "Swingline Committed Amount"), and (ii) the aggregate
principal amount of outstanding Revolving Loans plus the aggregate principal
amount of outstanding Competitive Loans plus the Dollar Amount of the aggregate
outstanding principal amount of Foreign Currency Loans plus the aggregate
principal amount of outstanding Swingline Loans plus the Dollar Amount of LOC
Obligations outstanding shall not exceed the Revolving Committed Amount.
Swingline Loans hereunder shall be made as Base Rate Loans, and may be repaid
and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a Swingline
Loan advance hereunder it shall give written notice (or telephonic notice
promptly confirmed in writing) to the Swingline Lender not later than
12:00 noon (Charlotte, North Carolina time) on the Business Day of the
requested Swingline Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swingline Loan advance is requested, (B) the
date of the requested Swingline Loan advance (which shall be a Business
Day) and (C) the principal amount of the Swingline Loan advance requested.
Each Swingline Loan shall be made as a Base Rate Loan and shall have as a
maturity date the earlier of (x) the second Business Day after demand by
the Swingline Lender for repayment thereof, and (y) the Maturity Date. The
Swingline Lender shall initiate the transfer of funds representing the
Swingline Loan advance to the Borrower by 4:00 P.M. (Charlotte, North
Carolina time) on the Business Day of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a
minimum principal amount of $500,000 and in integral multiples of $500,000
in excess thereof (or the remaining amount of the Swingline Committed
Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the second
Business Day after demand by the Swingline Lender for repayment thereof,
and (B) the Maturity Date. The Swingline Lender may, at any time, in its
sole discretion, by written notice to the Borrower and the Banks, demand
repayment of its Swingline Loans by way of a Revolving Loan advance, in
which case the Borrower shall be deemed to have requested a Revolving Loan
advance comprised solely of Base Rate Loans in the amount of such
Swingline Loans; provided,
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however, that any such demand shall be deemed to have been given one
Business Day prior to the Maturity Date and on the date of the occurrence
of any Event of Default described in Section 9.1 and upon acceleration of
the indebtedness hereunder and the exercise of remedies in accordance with
the provisions of Section 9.2. Each Bank hereby irrevocably agrees to make
its pro rata share of each such Revolving Loan in the amount, in the
manner and on the date specified in the preceding sentence notwithstanding
(I) the amount of such borrowing may not comply with the minimum amount
for advances of Revolving Loans otherwise required hereunder, (II) whether
any conditions specified in Section 5.2 are then satisfied, (III) whether
a Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such borrowing is a
date on which Revolving Loans are otherwise permitted to be made hereunder
or (VI) any termination of the Commitments relating thereto immediately
prior to or contemporaneously with such borrowing. In the event that any
Revolving Loan cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower or any other Credit Party), then each Bank hereby agrees that it
shall forthwith purchase (as of the date such borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on
or after such date and prior to such purchase) from the Swingline Lender
such Participations Interest in the outstanding Swingline Loans as shall
be necessary to cause each such Bank to share in such Swingline Loans
ratably based upon its Commitment Percentage of the Revolving Committed
Amount (determined before giving effect to any termination of the
Commitments pursuant to Section 3.4), provided that (A) all interest
payable on the Swingline Loans shall be for the account of the Swingline
Lender until the date as of which the respective Participation Interest is
purchased and (B) at the time any purchase of Participation Interests
pursuant to this sentence is actually made, the purchasing Bank shall be
required to pay to the Swingline Lender, to the extent not paid to the
Swingline Lender by the Borrower in accordance with the terms of
subsection (c)(ii) below, interest on the principal amount of
Participation Interests purchased for each day from and including the day
upon which such borrowing would otherwise have occurred to but excluding
the date of payment for such Participation Interests, at the rate equal to
the Federal Funds Rate.
(c) Interest on Swingline Loans. Subject to the provisions of Section 3.1,
each Swingline Loan shall bear interest at a per annum rate (computed on the
basis of the actual number of days elapsed over a year of 365 days) equal to the
Base Rate. Interest on Swingline Loans shall be payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified
herein), unless accelerated sooner pursuant to Section 9.2.
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in an original
principal amount equal to the Swingline Committed Amount substantially in the
form of Exhibit 2.5(d).
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SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1 Default Rate.
Upon the occurrence, and during the continuance, of an Event of Default
the principal of and, to the extent permitted by law, interest on the Loans and
any other amounts owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate 2% greater than the rate which
would otherwise be applicable (or if no rate is applicable, whether in respect
of interest, fees or other amounts, then the Base Rate plus 2%).
3.2 Extension and Conversion.
Subject to the terms of Section 5.2, the Borrower and each Foreign
Borrower shall have the option, on any Business Day, to extend existing Loans
into a subsequent permissible Interest Period or to convert Loans into Loans of
another interest rate type; provided, however, that (i) except as provided in
Section 3.8, Eurocurrency Loans may be converted into Base Rate Loans only on
the last day of the Interest Period applicable thereto, (ii) Eurocurrency Loans
may be extended, and Base Rate Loans may be converted into Eurocurrency Loans,
only if no Default or Event of Default is in existence on the date of extension
or conversion, (iii) Loans extended as, or converted into, Eurocurrency Loans
shall be subject to the terms of the definition of "Interest Period" set forth
in Section 1.1 and shall be in such minimum amounts as provided in Section
2.1(b)(ii) or 2.3(b)(ii) as applicable, (iv) no more than eight Eurocurrency
Loans shall be outstanding under Section 2.1 at any time and no more than five
Foreign Currency Loans shall be outstanding at any time (it being understood
that, for purposes hereof, Loans with different Interest Periods shall be
considered as separate Loans, even if they begin on the same date, although
borrowings, extensions and conversions may, in accordance with the provisions
hereof, be combined at the end of existing Interest Periods to constitute a new
Loan with a single Interest Period), (v) any request for extension or conversion
of a Eurocurrency Loan which shall fail to specify an Interest Period shall be
deemed to be a request for an Interest Period of one month and (vi) Competitive
Loans and Swingline Loans may not be extended or converted pursuant to this
Section 3.2. Each such extension or conversion shall be effected by the Borrower
(on its own behalf or on behalf of a Foreign Borrower, as applicable) by giving
a Notice of Extension/Conversion (or telephonic notice promptly confirmed in
writing) to the office of the Agent specified in specified in Schedule 2.1(a),
or at such other office as the Agent may designate in writing, prior to 12:00
noon (Charlotte, North Carolina time) on the Business Day of, in the case of the
conversion of a Eurocurrency Loan into a Base Rate Loan, and on the third
Business Day prior to, in the case of the extension of a Eurocurrency Loan as,
or conversion of a Base Rate Loan into, a Eurocurrency Loan, the date of the
proposed extension or conversion, specifying the date of the proposed extension
or conversion, the Loans to be so extended or converted, the types of Loans into
which such Loans are to be converted and, if appropriate, the applicable
Interest Periods and Available Foreign Currency with respect thereto. In the
event the Borrower fails to request extension or conversion of any Eurocurrency
Loan in accordance with this Section, or any such conversion or extension is not
permitted or required by this Section, then (i) in the case of any Eurocurrency
Loan which is not a Foreign Currency Loan, such Eurocurrency Loan shall be
automatically converted into a Base Rate Loan at the end of the Interest Period
applicable thereto, and (ii) in the case of any Foreign
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Currency Loan, such Eurocurrency Loan shall be automatically continued as a
Eurocurrency Loan in the same Available Foreign Currency for an Interest Period
of one month. The Agent shall give each Bank notice as promptly as practicable
of any such proposed extension or conversion affecting any Loan.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower (and as applicable each Foreign
Borrower) shall have the right to prepay Loans in whole or in part from time to
time; provided, however, that each partial prepayment of Loans shall be (i) in
the case of Revolving Loans and Foreign Currency Loans, in a minimum principal
Dollar Amount of $3,000,000 and integral multiples of $1,000,000, and (ii) in
the case of Swingline Loans, in a minimum principal amount of $500,000 and
integral multiples of $500,000. Subject to the foregoing terms, amounts prepaid
under this Section 3.3(a) shall be applied as the Borrower may elect; provided
that if the Borrower fails to specify a voluntary prepayment then such
prepayment shall be applied to Revolving Loans first to Base Rate Loans, then to
Eurocurrency Loans denominated in Dollars in direct order of Interest Period
maturities, and then to Eurocurrency Loans denominated in Available Foreign
Currencies in direct order of Interest Period maturities. All prepayments under
this Section 3.3(a) shall be subject to Section 3.12, but otherwise without
premium or penalty, and be accompanied by interest on the principal amount
prepaid through the date of prepayment.
(b) Mandatory Prepayments.
(i) In Excess of Committed Amounts. If at any time, (A) the sum of
the aggregate principal amount of outstanding Revolving Loans plus the
aggregate principal amount of outstanding Competitive Loans, plus the
Dollar Amount of the aggregate principal amount of outstanding Foreign
Currency Loans plus the aggregate principal amount of outstanding
Swingline Loans, plus the Dollar Amount of LOC Obligations outstanding
shall exceed the Revolving Committed Amount, or (B) the aggregate
principal amount of outstanding Competitive Loans shall exceed the
Competitive Loan Maximum Amount, or (C) the aggregate principal amount of
outstanding Swingline Loans shall exceed the Swingline Committed Amount,
or (D) the Dollar Amount of the aggregate principal amount of outstanding
Foreign Currency Loans shall exceed the Foreign Currency Commitment, then
the Borrower immediately shall prepay the Revolving Loans (or, after all
Revolving Loans have been repaid, cash collateralize the LOC Obligations),
Competitive Loans, Foreign Currency Loans and/or the Swingline Loans (as
the case may be) in an amount sufficient to eliminate such excess.
(ii) Asset Dispositions. Immediately upon the occurrence of any
Asset Disposition (other than an Excluded Asset Disposition), the Borrower
shall prepay the Loans in an aggregate amount equal to the Net Cash
Proceeds of the related Asset Disposition.
(iii) Application of Mandatory Prepayments. All amounts required to
be paid pursuant to this Section 3.3(b) shall be applied (i) first to the
payment of Base Rate Loans and second to the payment of Eurocurrency Rate
Loans (and after all Revolving Loans have been repaid to a cash collateral
account in respect of LOC Obligations); and (ii) within
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Eurocurrency Rate Loans, first to Eurocurrency Loans denominated in
Dollars in direct order of Interest Period maturities, and then to
Eurocurrency Loans denominated in Available Foreign Currencies in direct
order of Interest Period maturities, provided that all prepayments of
Eurocurrency Rate Loans are subject to the provisions of Section 3.12. and
shall be accompanied by interest on the principal amount prepaid through
the date of prepayment.
3.4 Termination and Reduction of Revolving Committed Amount.
(a) Voluntary Reductions. The Borrower may from time to time permanently
reduce or terminate the Revolving Committed Amount in whole or in part (in
minimum aggregate amounts of $5,000,000 or in integral multiples of $1,000,000
in excess thereof (or, if less, the full remaining amount of the then applicable
Revolving Committed Amount)) upon five Business Days' prior written notice to
the Agent; provided, however, no such termination or reduction shall be made
which would cause the aggregate principal amount of outstanding Revolving Loans
plus the aggregate principal amount of outstanding Competitive Loans, plus the
Dollar Amount of the aggregate principal amount of outstanding Foreign Currency
Loans, plus the Dollar Amount of LOC Obligations outstanding, plus the aggregate
principal amount of the outstanding Swingline Loans, to exceed the Revolving
Committed Amount, unless, concurrently with such termination or reduction, the
Revolving Loans are repaid to the extent necessary to eliminate such excess. The
Agent shall promptly notify each Bank of receipt by the Agent of any notice from
the Borrower pursuant to this Section 3.4(a).
(b) Mandatory Reductions. On any date that the Loans are required to be
prepaid pursuant to the terms of Section 3.3(b)(ii), the Revolving Committed
Amount automatically shall be permanently reduced by the amount of such required
prepayment and/or reduction.
(c) Maturity Date. The Revolving Commitments of the Banks, the Foreign
Currency Commitment of the Banks, the Swingline Commitment of the Swingline
Lender and the LOC Commitment of the Issuing Lender shall automatically
terminate on the Maturity Date.
(d) General. The Borrower shall pay to the Agent for the account of the
Banks in accordance with the terms of Section 3.5(b), on the date of each
termination or reduction of the Revolving Committed Amount, the Facility Fee
accrued through the date of such termination or reduction on the amount of the
Revolving Committed Amount so terminated or reduced.
3.5 Fees.
(a) Administrative Fees. The Borrower agrees to pay to the Agent,
for its own account and NationsBanc Xxxxxxxxxx Securities LLC, as
applicable, the fees referred to in the Agent's Fee Letter (collectively,
the "Agent's Fees").
(b) Facility Fee. In consideration of the Revolving Commitments of
the Banks hereunder, the Borrower agrees to pay to the Agent for the
account of each Bank a fee (the "Facility Fee") on the Revolving Committed
Amount computed at a per annum rate of 0.25%. The Facility Fee shall
commence to accrue on the Closing Date and shall be due and payable in
arrears on the last Business Day of each March, June, September and
December
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(and any date that the Revolving Committed Amount is reduced as provided
in Section 3.4(a) or (b)) and the Maturity Date for the immediately
preceding quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.
(c) Letter of Credit Fees.
(i) Standby Letter of Credit Issuance Fee. In consideration of
the issuance of standby Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Bank a fee (the
"Standby Letter of Credit Fee") on such Bank's Revolving Commitment
Percentage of the average daily maximum amount available to be drawn
under each such standby Letter of Credit computed at a per annum
rate for each day from the date of issuance to the date of
expiration equal to the Applicable Percentage. The Standby Letter of
Credit Fee will be payable quarterly in arrears on the last Business
Day of each March, June, September and December for the immediately
preceding quarter (or a portion thereof).
(ii) Trade Letter of Credit Drawing Fee. In consideration of
the issuance of trade Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Bank a fee (the
"Trade Letter of Credit Fee") on such Bank's Revolving Commitment
Percentage of the average daily maximum amount available to be drawn
under each such trade Letter of Credit computed at a per annum rate
for each day from the date of issuance to the date of expiration
equal to the Applicable Percentage. The Trade Letter of Credit Fee
will be payable quarterly in arrears on the last Business Day of
each March, June, September and December for the immediately
preceding quarter (or portion thereof).
(iii) Issuing Lender Fees. In addition to the Standby Letter
of Credit Fee payable pursuant to clause (i) above and the Trade
Letter of Credit Fee payable pursuant to clause (ii) above, the
Borrower promises to pay to the Issuing Lender for its own account
without sharing by the other Banks the letter of credit fronting fee
of 0.125% of the face amount of each Letter of Credit, together with
standard negotiation fees and other customary charges from time to
time of the Issuing Lender with respect to the issuance, amendment,
transfer, administration, cancellation and conversion of, and
drawings under, such Letters of Credit (collectively, the "Issuing
Lender Fees").
(d) Competitive Bid Request Fee. The Borrower shall make payment to
the Agent for each Competitive Bid Request of a Competitive Bid
administration fee (the "Competitive Bid Request Fee" of $2,500.00
concurrently with delivery of any Competitive Bid Request (whether or not
any Competitive Bid is offered by a Bank or accepted by the Borrower and
whether or nor any Competitive Loan is extended by any Bank in connection
with such Competitive Bid Request).
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3.6 Capital Adequacy.
If any Bank has determined that the adoption or the becoming effective of,
or any change in, or any change by any Governmental Authority, central Bank or
comparable agency charged with the interpretation or administration thereof in
the interpretation or administration of, any applicable law, rule or regulation
regarding capital adequacy, in each case after the Closing Date, or compliance
by such Bank with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central Bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, effectiveness, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy), then, upon
notice from such Bank to the Borrower, the Borrower shall be obligated to pay to
such Bank such additional amount or amounts as will compensate such Bank for
such reduction. Each determination by any such Bank of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto.
3.7 Unavailability.
In the event, and on each occasion, that on the day two (2) Business Days
prior to the commencement of any Interest Period for a Eurocurrency Loan of any
amount, Interest Period or Available Foreign Currency, the Agent shall have
determined or shall have been notified by the Required Banks (a) that deposits
in the relevant amount in the relevant Available Foreign Currency and for the
relevant Interest Period are not available in the relevant market to the
Required Banks, or that reasonable means do not exist for ascertaining the
Eurocurrency Rate for any such Loan, or that Loans cannot be made in a
particular Available Foreign Currency, or (b) that the rates at which such
deposits are being offered will not adequately and fairly reflect the cost to
the Required Banks of making or maintaining its Eurocurrency Loan during such
Interest Period, the Agent shall promptly give written or telecopy notice of
such determination to the Borrower and the Banks. In the event of any such
determination, until the Agent shall have advised the Borrower and the Banks
that the circumstances giving rise to such notice no longer exist, any request
by the Borrower for a Eurocurrency Loan of the affected amount, Interest Period
or Available Foreign Currency, or a conversion to or continuation of a
Eurocurrency Loan of the affected amount, Interest Period or Available Foreign
Currency, shall be deemed rescinded. Each determination by the Agent hereunder
shall be conclusive absent manifest error.
3.8 Illegality.
Notwithstanding any other provision of this Credit Agreement, in the event
that it becomes unlawful for any Bank or its Applicable Lending Office to make,
maintain, or fund any Eurocurrency Loans hereunder, then such Bank shall
promptly notify the Borrower thereof and such Bank's obligation to make or
Continue Eurocurrency Loans (or Foreign Currency Loans in any affected Available
Foreign Currency, as applicable) and to Convert Base Rate Loans into
Eurocurrency Loans shall be suspended until such time as such Bank may again
make, maintain, and fund Eurocurrency Loans (or Foreign Currency Loans in the
affected Available Foreign Currency, as applicable), in which case the
provisions of Section 3.10 shall be applicable.
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3.9 Requirements of Law.
If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central Bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central Bank, or comparable agency:
(i) shall subject such Bank (or its Applicable Lending Office) to
any tax, duty, or other charge with respect to any Eurocurrency Loans,
Foreign Currency Loans, its Notes, or its obligation to make Eurocurrency
Loans or Foreign Currency Loans, or change the basis of taxation of any
amounts payable to such Bank (or its Applicable Lending Office) under this
Credit Agreement or its Notes in respect of any Eurocurrency Loans or
Foreign Currency Loans (other than taxes imposed on the overall net income
of such Bank by the jurisdiction in which such Bank has its principal
office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Eurocurrency
Reserve Requirement utilized in the determination of the Adjusted
Eurocurrency Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such Bank
(or its Applicable Lending Office), including the Commitment of such Bank
hereunder; or
(iii) shall impose on such Bank (or its Applicable Lending Office)
or the London interbank market any other condition affecting this Credit
Agreement or its Notes or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurocurrency Loans or making, continuing or maintaining any
Foreign Currency Loans, or to reduce any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Credit Agreement or its Notes with
respect to any Eurocurrency Loans or Foreign Currency Loans, then the Borrower
shall pay to such Bank on demand such amount or amounts as will compensate such
Bank for such increased cost or reduction. If any Bank requests compensation by
the Borrower under this Section 3.9, the Borrower may, by notice to such Bank
(with a copy to the Agent), suspend the obligation of such Bank to make or
Continue Eurocurrency Loans, or to Convert Base Rate Loans into Eurocurrency
Loans or to make or continue Foreign Currency Loans, until the event or
condition giving rise to such request ceases to be in effect (in which case the
provisions of Section 3.10 shall be applicable); provided that such suspension
shall not affect the right of such Bank to receive the compensation so
requested. Each Bank shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section 3.9 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to it. Any Bank claiming
compensation under this Section 3.9 shall furnish to the Borrower and the Agent
a statement setting
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forth the additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
3.10 Treatment of Affected Loans.
(a) If the obligation of any Bank to make or continue any Foreign Currency
Loans shall be suspended pursuant to Section 3.8 or 3.9 hereof, such Bank's
Foreign Currency Loans in the affected Available Foreign Currency shall be
automatically converted into Eurocurrency Loans denominated in Dollars on the
last day(s) of the then current Interest Period(s) for such Foreign Currency
Loans (or, in the case of a conversion required by Section 3.8 hereof, on such
earlier date as such Bank may specify to the Borrower with a copy to the Agent),
and unless and until such Bank gives notice to the Borrower that the
circumstances specified in Section 3.8 or 3.9 no longer exist, all Foreign
Currency Loans in the affected Available Foreign Currency that would otherwise
be made or continued by such Bank shall be made as Eurocurrency Loans
denominated in Dollars, and all requests for a Foreign Currency Loan in the
affected Available Foreign Currency from such Bank shall be deemed to be a
request for a Eurocurrency Loan denominated in Dollars.
(b) Except as provided in preceding subsection (a), if the obligation of
any Bank to make any Eurocurrency Loan or to Continue, or to Convert Base Rate
Loans into, Eurocurrency Loans shall be suspended pursuant to Section 3.8 or 3.9
hereof, such Bank's Eurocurrency Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current Interest Period(s) for
such Eurocurrency Loans (or, in the case of a Conversion required by Section 3.8
hereof, on such earlier date as such Bank may specify to the Borrower with a
copy to the Agent) and, unless and until such Bank gives notice as provided
below that the circumstances specified in Section 3.8 or 3.9 hereof that gave
rise to such Conversion no longer exist:
(a) to the extent that such Bank's Eurocurrency Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Bank's Eurocurrency Loans shall be applied instead to
its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Bank
as Eurocurrency Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Bank that would otherwise be
Converted into Eurocurrency Loans shall remain as Base Rate Loans.
If such Bank gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.8 or 3.9 hereof that gave rise to the
conversion of such Bank's Loans pursuant to this Section 3.10 no longer exist
(which such Bank agrees to do promptly upon such circumstances ceasing to exist)
at a time when Foreign Currency Loans of the affected Available Foreign Currency
or Eurocurrency Loans (as applicable) made by other Banks are outstanding, such
Bank's affected Loans shall be automatically re-converted, on the first day(s)
of the next succeeding Interest Period(s) for such outstanding Foreign Currency
Loans or Eurocurrency Loans (as applicable), to the extent necessary so that,
after giving effect thereto, all Loans held by the Banks are held pro rata (as
to principal amounts, interest rate basis, Available Foreign Currencies and
Interest Periods) in accordance with their respective Commitments.
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3.11 Taxes.
(a) Any and all payments by any Credit Party to or for the account of any
Bank or the Agent hereunder or under any other Credit Document shall be made
free and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If any Credit Party shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Credit Agreement or any other
Credit Document to any Bank or the Agent, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.11) such Bank or the
Agent receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Credit Party shall make such deductions, (iii)
such Credit Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, and (iv) such
Credit Party shall furnish to the Agent, at its address referred to in Section
11.1, the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Credit Agreement or
any other Credit Document or from the execution or delivery of, or otherwise
with respect to, this Credit Agreement or any other Credit Document (hereinafter
referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Bank and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 3.11) paid by such Bank or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Bank that is not a United States person under Section 7701(a)(30)
of the Code, on or prior to the date of its execution and delivery of this
Credit Agreement in the case of each Bank listed on the signature pages hereof
and on or prior to the date on which it becomes a Bank in the case of each other
Bank, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Bank remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Bank is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Credit Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal Revenue
Service Form W-8 or W-9, as appropriate, or any successor form prescribed by the
Internal Revenue Service, and (iii) any other form or certificate required by
any taxing authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Bank is entitled to
an exemption from or a reduced rate of tax on payments pursuant to this Credit
Agreement or any of the other Credit
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Documents. Without limiting the generality of the foregoing, each Bank (other
than any Qualifying Bank) shall, as soon as is reasonably practicable after the
Closing Date, file a form FD 13 with the United States Internal Revenue Service
in relation to payments made or to be made by the Foreign Borrowers under this
Credit Agreement and any Foreign Currency Notes. If the United States Internal
Revenue Service determines that the form FD 13 filed by such Bank does not
establish that the Bank is entitled to receive payments made by the Borrowers
under this Credit Agreement and the Foreign Currency Notes as at the date of
delivery thereof without deduction or withholding of United Kingdom withholding
taxes, such Bank shall, within forty-five (45) days after a written request from
the Foreign Borrowers, offer such reasonable assistance as the Foreign Borrowers
may request in order to establish such Bank's entitlement (if any) to receive
payments made by the Foreign Borrowers under this Credit Agreement and any
Foreign Currency Notes without deduction or withholding of United Kingdom
withholding taxes. No Foreign Borrower shall be required to pay any amounts to
any Bank in respect of any deduction or withholding of United Kingdom
withholding taxes otherwise payable under this Section 3.11 (and a Foreign
Borrower, if required by law to do so, shall be entitled to withhold such
amounts and pay such amounts to the government of the United Kingdom) if the
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank to provide the Foreign Borrowers with the requested forms
or other reasonable assistance. Each Person that shall become a Bank or a
participant of a Bank pursuant to Section 11.3(b) shall, upon the effectiveness
of the related transfer, be required to provide all of the forms,
certifications, and statements required pursuant to this section, provided that
in the case of a participant of a Bank the obligations of such participant
pursuant to this subsection (d) shall be determined as if the participant were a
Bank, except that such participant shall furnish all such required forms,
certifications and statements to the Bank from which the related participation
shall have been purchased.
(e) For any period with respect to which a Bank has failed to provide the
Borrower and the Agent with the appropriate form pursuant to Section 3.11(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 3.11(a) or
3.11(b) with respect to Taxes imposed by the United States.
(f) If any Credit Party is required to pay additional amounts to or for
the account of any Bank pursuant to this Section 3.11, then such Bank will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
(g) Within thirty (30) days after the date of any payment of Taxes, the
applicable Credit Party shall furnish to the Agent the original or a certified
copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the Credit
Parties hereunder, the agreements and obligations of the Credit Parties
contained in this Section 3.11 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
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3.12 Compensation.
Upon the request of any Bank, the Borrower shall pay to such Bank such
amount or amounts as shall be sufficient (in the reasonable opinion of such
Bank) to compensate it for any loss, cost, or expense incurred by it as a result
of:
(a) any payment, prepayment, or Conversion of a Eurocurrency Loan or
a Competitive Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 9.2) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Section 5
to be satisfied) to borrow, Convert, Continue, or prepay a Eurocurrency
Loan on the date for such borrowing, Conversion, Continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
Continuation, or Conversion under this Credit Agreement.
With respect to Eurocurrency Loans, such indemnification may include an amount
equal to the excess, if any, of (a) the amount of interest which would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the applicable Interest Period (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurocurrency Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (b) the amount
of interest (as reasonably determined by such Bank) which would have accrued to
such Bank on such amount by placing such amount on deposit for a comparable
period with leading Banks in the interbank Eurocurrency market. The covenants of
the Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and the
termination of the Commitments hereunder.
3.13 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan, each payment or (subject to the terms of Section
3.3) prepayment of principal of any Loan or reimbursement obligations arising
from drawings under Letters of Credit, each payment of interest on the Loans or
reimbursement obligations arising from drawings under Letters of Credit, each
payment of Facility Fees, each payment of the Standby Letter of Credit Fee, each
payment of the Trade Letter of Credit Fee, each reduction of the Revolving
Committed Amount and each conversion or extension of any Loan, shall be
allocated pro rata among the Banks in accordance with the respective principal
amounts of their outstanding Loans and Participation Interests.
(b) Advances. No Bank shall be responsible for the failure or delay by any
other Bank in its obligation to make its ratable share of a borrowing hereunder;
provided, however, that the failure of any Bank to fulfill its obligations
hereunder shall not relieve any other Bank of its obligations hereunder. Unless
the Agent shall have been notified by any Bank prior to the date of
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any requested borrowing that such Bank does not intend to make available to the
Agent its ratable share of such borrowing to be made on such date, the Agent may
assume that such Bank has made such amount available to the Agent on the date of
such borrowing, and the Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Agent, the Agent shall be able to recover such corresponding amount from
such Bank. If such Bank does not pay such corresponding amount forthwith upon
the Agent's demand therefor, the Agent will promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the Agent. The
Agent shall also be entitled to recover from the Bank or the Borrower, as the
case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Agent to the
Borrower to the date such corresponding amount is recovered by the Agent at a
per annum rate equal to (i) from the Borrower at the applicable rate for the
applicable borrowing pursuant to the Notice of Borrowing and (ii) from a Bank at
the Federal Funds Rate (or, in the case of a Foreign Currency Loan, interest on
the daily Dollar Equivalent thereof).
3.14 Sharing of Payments.
The Banks agree among themselves that, in the event that any Bank shall
obtain payment in respect of any Loan, LOC Obligations or any other obligation
owing to such Bank under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Bank under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, in excess of its pro rata share of such payment as provided for in
this Credit Agreement, such Bank shall promptly purchase from the other Banks a
Participation Interest in such Loans, LOC Obligations and other obligations in
such amounts, and make such other adjustments from time to time, as shall be
equitable to the end that all Banks share such payment in accordance with their
respective ratable shares as provided for in this Credit Agreement. The Banks
further agree among themselves that if payment to a Bank obtained by such Bank
through the exercise of a right of setoff, banker's lien, counterclaim or other
event as aforesaid shall be rescinded or must otherwise be restored, each Bank
which shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Bank whose payment shall have been rescinded or otherwise restored. The
Borrower agrees that any Bank so purchasing such a Participation Interest may,
to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker's lien or counterclaim, with respect to such
Participation Interest as fully as if such Bank were a holder of such Loan, LOC
Obligations or other obligation in the amount of such Participation Interest.
Except as otherwise expressly provided in this Credit Agreement, if any Bank or
the Agent shall fail to remit to the Agent or any other Bank an amount payable
by such Bank or the Agent to the Agent or such other Bank pursuant to this
Credit Agreement on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to the Agent or such other Bank at a rate
per annum equal to the Federal Funds Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Bank receives a secured claim in lieu of a
setoff to which this Section 3.14 applies, such Bank shall, to the extent
practicable, exercise its rights in respect of such secured
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claim in a manner consistent with the rights of the Banks under this Section
3.14 to share in the benefits of any recovery on such secured claim.
3.15 Payments, Computations, Etc.
(a) Currency of Payments. Each payment on account of an amount due from
any Credit Party hereunder or under any other Credit Document shall be made by
such Credit Party to the Agent for the pro rata account of the Banks entitled to
receive such payment as provided herein in the currency in which such amount is
denominated and in such funds as are customary at the place and time of payment
for the settlement of international payments in such currency. Without limiting
the terms of the preceding sentence, accrued interest on any Loans denominated
in an Available Foreign Currency shall be payable in the same Available Foreign
Currency as such Loan. Upon request, the Agent will give the Credit Parties a
statement showing the computation used in calculating such amount, which
statement shall be conclusive in the absence of manifest error. The obligation
of each Credit Party to make each payment on account of such amount in the
currency in which such amount is denominated shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment, which is
expressed in or converted into any other currency, except to the extent such
tender or recovery shall result in the actual receipt by the Agent of the full
amount in the appropriate currency payable hereunder. Each Credit Party agrees
that its obligation to make each payment on account of such amount in the
currency in which such amount is denominated shall be enforceable as an
additional or alternative claim for recovery in such currency of the amount (if
any) by which such actual receipt shall fall short of the full amount of such
currency payable hereunder, and shall not be affected by judgment being obtained
for such amount.
(b) Procedure for Payments. All payments hereunder shall be made to the
Agent (or as applicable, the Swingline Lender) in immediately available funds,
without setoff, deduction, counterclaim or withholding of any kind, at (i) in
the case of payments in Dollars, the Agent's office specified in Schedule 2.1(a)
not later than 1:00 P.M. (Charlotte, North Carolina time) on the date when due,
and (ii) in the case of payments in Available Foreign Currencies, at such place
or places as may be designated by the Agent from time to time not later than
12:00 noon local time in the place where such payment is required. Payments
received after such time shall be deemed to have been received on the next
succeeding Business Day. The Agent may (but shall not be obligated to) debit the
amount of any such payment which is not made by such time to any ordinary
deposit account of the Borrower or any other Credit Party maintained with the
Agent (with notice to the Borrower or such other Credit Party); provided,
however, that the Agent shall apply the proceeds of any deposit account of a
Foreign Borrower only to Credit Party Obligations of such Foreign Borrower. The
Borrower (or as applicable, each Foreign Borrower) shall, at the time it makes
any payment under this Credit Agreement, specify to the Agent the Loans, LOC
Obligations, Fees, interest or other amounts payable hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or if
such application would be inconsistent with the terms hereof, the Agent shall
distribute such payment to the Banks in such manner as the Agent may determine
to be appropriate in respect of obligations owing by the Credit Parties
hereunder, subject to the terms of Section 3.13(a)). The Agent will promptly
distribute in same day funds to each Bank such Bank's share, if any, of payments
received by the Agent for the account of such Bank. Whenever any payment
hereunder shall be stated to be due on a day which is not a Business Day, the
due date thereof shall be extended to the next succeeding Business Day (subject
to accrual
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of interest and Fees for the period of such extension), except that in the case
of Eurocurrency Loans, if the extension would cause the payment to be made in
the next following calendar month, then such payment shall instead be made on
the next preceding Business Day. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of actual
number of days elapsed over a year of 365 or 366 days, as appropriate, except
with respect to computation of interest on Eurocurrency Loans which shall be
calculated based on a year of 360 days (unless in the case of any Foreign
Currency Loans interest may be calculated with respect to the applicable
Available Foreign Currency on the basis of the actual number of days elapsed
over a year of 365 or 366 days, as applicable). Interest shall accrue from and
include the date of borrowing, but exclude the date of payment.
(c) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Agent or any Bank on account of the Credit Party Obligations or
any other amounts outstanding under any of the Credit Documents or in respect of
the Collateral shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Agent and/or the Trustee in connection with enforcing the rights of the
Banks under the Credit Documents and any protective advances made by the
Trustee with respect to the Collateral under or pursuant to the terms of
the Collateral Documents;
SECOND, to payment of any fees owed to the Agent or the Trustee;
THIRD, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation, reasonable attorneys' fees) of
each of the Banks in connection with enforcing its rights under the Credit
Documents or otherwise with respect to the Credit Party Obligations owing
to such Bank;
FOURTH, to the payment of all of the Credit Party Obligations
consisting of accrued fees and interest;
FIFTH, to the payment of the outstanding principal amount of the
Credit Party Obligations (including the payment or cash collateralization
of the outstanding LOC Obligations);
SIXTH, to all other Credit Party Obligations (including all
obligations arising under Hedging Agreements) and other obligations which
shall have become due and payable under the Credit Documents or otherwise
and not repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the
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Banks shall receive an amount equal to its pro rata share (based on the
proportion that the then outstanding Loans and LOC Obligations held by such Bank
bears to the aggregate then outstanding Loans and LOC Obligations) of amounts
available to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and
"SIXTH" above; and (iii) to the extent that any amounts available for
distribution pursuant to clause "FIFTH" above are attributable to the issued but
undrawn amount of outstanding Letters of Credit, such amounts shall be held by
the Agent in a cash collateral account and applied (A) first, to reimburse the
Issuing Lender from time to time for any drawings under such Letters of Credit
and (B) then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses "FIFTH" and "SIXTH" above in the
manner provided in this Section 3.15(b).
3.16 Evidence of Debt.
(a) Each Bank shall maintain an account or accounts evidencing each Loan
made by such Bank to the Borrower and the Foreign Borrowers from time to time,
including the amounts of principal and interest payable and paid to such Bank
from time to time under this Credit Agreement. Each Bank will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section 11.3(c), and
a subaccount for each Bank, in which Register and subaccounts (taken together)
shall be recorded (i) the amount, type and Interest Period of each such Loan
hereunder, (ii) the amount of any principal or interest due and payable or to
become due and payable to each Bank hereunder from the Borrower and each Foreign
Borrower and (iii) the amount of any sum received by the Agent hereunder from or
for the account of any Credit Party and each Bank's share thereof. The Agent
will make reasonable efforts to maintain the accuracy of the subaccounts
referred to in the preceding sentence and to promptly update such subaccounts
from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to subsection (b) of this Section 3.16 (and, if consistent with the
entries of the Agent, subsection (a)) shall be prima facie evidence of the
existence and amounts of the obligations of the Credit Parties therein recorded;
provided, however, that the failure of any Bank or the Agent to maintain any
such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Credit Parties to
repay the Credit Party obligations owing to such Bank.
3.17 Additional Foreign Borrowers.
(a) The Borrower may request designation of any of its Foreign
Subsidiaries (an "Applicant Borrower") as a Foreign Borrower hereunder by
delivery of such a request to the Agent together with an executed copy of a
joinder agreement in form and content satisfactory to the Agent. Inclusion of
any such Foreign Subsidiary as a Foreign Borrower is subject to the prior
consent of the Required Banks in their reasonable discretion. The Agent will
promptly notify the Banks of any such request and provide an executed copy of
such Applicant Borrower's joinder agreement and the Borrower's request for
consent to such joinder. The joinder of each Applicant Borrower as a Foreign
Borrower will be subject to delivery of executed promissory notes, if any,
required in connection therewith, and supporting resolutions, articles of
incorporation, bylaws,
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incumbency certificates, opinions of counsel and such other items as the
Required Banks may reasonably request. Any such addition of a new Foreign
Borrower shall be effective ten Business Days after consent by the Required
Banks and receipt by the Agent of the items required by the Required Banks in
connection therewith. Such Applicant Borrower shall thereupon become a party
hereto and a Foreign Borrower hereunder.
(b) The Borrower may request that any of its Foreign Subsidiaries which is
a Foreign Borrower hereunder cease to be a Foreign Borrower by delivering to the
Agent (which shall promptly deliver copies thereof to each Bank) a written
notice to such effect. Such Foreign Subsidiary shall cease to be a Foreign
Borrower hereunder on the later to occur of (i) the date the Agent receives such
request and (ii) the date such Foreign Subsidiary has paid all of its Foreign
Currency Loans and all accrued and unpaid interest, fees and other obligations
hereunder or in connection herewith.
3.18 Several Liability of Foreign Borrowers.
The obligations of the Foreign Borrowers as borrowers hereunder are
several, and not joint, obligations. Each Foreign Borrower shall be liable only
with respect to Foreign Currency Loans which it has borrowed under the terms
hereof, together with all accrued interest, fees and other charges arising in
connection with such specific Foreign Currency Loans.
3.19 European Common Currency.
(a) If, as result of the implementation of the European economic and
monetary union ("EMU"), (i) any Available Foreign Currency ceases to be lawful
currency of the nation issuing the same and is replaced by a European common
currency (the "Euro") or (ii) any Available Foreign Currency and the Euro are at
the same time recognized by any governmental authority of the nation issuing
such Available Foreign Currency as lawful currency of such nation, then any
amount payable hereunder by the Borrower or any Foreign Borrower in such
Available Foreign Currency shall instead be payable in the Euro and the amount
so payable shall be determined by translating the amount so payable in such
other Available Foreign Currency to the Euro at the exchange rate recognized by
the European central bank (or such other governmental or regulatory authority
designated by the EMU for establishing such exchange rate) for the purpose of
implementing the EMU. Prior to the occurrence of the event or events described
in clause (i) or (ii) of the preceding sentence, each amount payable hereunder
in any Available Foreign Currency will, except as otherwise provided herein,
continue to be payable only in that Available Foreign Currency.
(b) The terms and provisions of this Agreement will be subject to such
reasonable changes of construction as determined by the Agent (acting reasonably
and in consultation with the Borrower and the Banks) to reflect such
implementation of the Euro and to put the Banks and the Borrower in the same
position, so far as possible, that they would have been if such implementation
had not occurred. Except as provided in the foregoing provisions of this
Section, no such implementation nor any economic consequences resulting
therefrom shall give rise to any right to terminate, contest, cancel, modify or
renegotiate the provisions of this Agreement.
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SECTION 4
GUARANTY OF FOREIGN BORROWER OBLIGATIONS
4.1 Guaranty.
The Borrower hereby guarantees to each Bank and the Agent as hereinafter
provided the prompt payment of each Foreign Currency Loan made to the Foreign
Borrowers (hereinafter, the "Foreign Borrower Obligations") in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as a
mandatory cash collateralization or otherwise) strictly in accordance with the
terms hereof. The Borrower hereby further agrees that if any of the Foreign
Borrower Obligations are not paid in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise), the Borrower will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Foreign Borrower Obligations, the
same will be promptly paid in full when due (whether at extended maturity, as a
mandatory prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.
4.2 Obligations Unconditional.
The obligations of the Borrower under this Section are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Foreign Borrower
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section that the obligations of the Borrower
hereunder shall be absolute and unconditional under any and all circumstances.
The Borrower agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against any Foreign Borrower of the Foreign
Borrower Obligations for amounts paid under this Section until such time as the
Banks have been paid in full, all Commitments under this Credit Agreement have
been terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Banks in connection with
monies received under the Credit Documents. Without limiting the generality of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of the Borrower hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the
Borrower, the time for any performance of or compliance with any of the
Foreign Borrower Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) the maturity of any of the Foreign Borrower Obligations shall
be accelerated, or any of the Foreign Borrower Obligations shall be
modified, supplemented or amended in any respect, or any right under any
of the Credit Documents or any other agreement or instrument referred to
therein shall be waived or any other guarantee of any
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of the Foreign Borrower Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt
with; or
(iii) any of the Foreign Borrower Obligations shall be determined to
be void or voidable (including, without limitation, for the benefit of any
creditor of the Foreign Borrowers) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of the Foreign
Borrowers).
With respect to its obligations hereunder this Section, the Borrower hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Agent or any Bank exhaust any
right, power or remedy or proceed against any Person under any of the Credit
Documents or any other agreement or instrument referred to therein, or against
any other Person under any other guarantee of, or security for, any of the
Foreign Borrower Obligations.
4.3 Reinstatement.
The obligations of the Borrower under this Section shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Foreign Borrower Obligations is rescinded or
must be otherwise restored by any holder of any of the Foreign Borrower
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and the Borrower agrees that it will indemnify the
Agent and each Bank on demand for all reasonable costs and expenses (including,
without limitation, fees and expenses of counsel) incurred by the Agent or such
Bank in connection with such rescission or restoration, including any such costs
and expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
4.4 Remedies.
The Borrower agrees that, to the fullest extent permitted by law, as
between the Borrower, on the one hand, and the Agent and the Banks, on the other
hand, the Foreign Borrower Obligations may be declared to be forthwith due and
payable for purposes of this Section notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing the Foreign
Borrower Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or the Foreign Borrower
Obligations being deemed to have become automatically due and payable), the
Foreign Borrower Obligations (whether or not due and payable by any other
Person) shall forthwith become due and payable by the Borrower for purposes of
this Section.
4.5 Continuing Guarantee.
The guarantee in this Section is a continuing guarantee, and shall apply
to all Foreign Borrower Obligations whenever arising.
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SECTION 5
CONDITIONS
5.1 Closing Conditions.
The obligation of the Banks to enter into this Credit Agreement and to
make the initial Loans or the Issuing Lender to issue the initial Letter of
Credit hereunder, whichever shall occur first, shall be subject to satisfaction
of the following conditions (in form and substance acceptable to the Banks):
(a) Executed Credit Documents. Receipt by the Agent of duly executed
copies of: (i) this Credit Agreement, (ii) the Notes, (iii) the Collateral
Documents and (iv) all other Credit Documents, each in form and substance
acceptable to the Agent in its sole discretion.
(b) Corporate Documents. Receipt by the Agent of the following:
(i) Charter Documents. Copies of the articles or certificates
of incorporation or other charter documents of each Credit Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state or other
jurisdiction of its incorporation and certified by a secretary or
assistant secretary of such Credit Party to be true and correct as
of the Closing Date.
(ii) Bylaws. A copy of the bylaws of each Credit Party
certified by a secretary or assistant secretary of such Credit Party
to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board of
Directors of each Credit Party approving and adopting the Credit
Documents to which it is a party, the transactions contemplated
therein and authorizing execution and delivery thereof, certified by
a secretary or assistant secretary of such Credit Party to be true
and correct and in force and effect as of the Closing Date.
(iv) Good Standing. Copies of (A) certificates of good
standing, existence or its equivalent with respect to each Credit
Party certified as of a recent date by the appropriate Governmental
Authorities of the state or other jurisdiction of incorporation and
each other jurisdiction in which the failure to so qualify and be in
good standing could have a Material Adverse Effect and (B) to the
extent available, a certificate indicating payment of all corporate
franchise taxes certified as of a recent date by the appropriate
governmental taxing authorities.
(v) Incumbency. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary to be true and
correct as of the Closing Date.
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(c) Financial Statements. Receipt by the Agent and the Banks of (i)
the consolidated financial statements of the Borrower and its
Subsidiaries, including balance sheets and income and cash flow statements
for the fiscal quarter ended March 31, 1998, and (ii) such other
information relating to the Borrower and its Subsidiaries as the Agent may
reasonably require in connection with the structuring and syndication of
credit facilities of the type described herein.
(d) Opinions of Counsel. The Agent shall have received, in each case
dated as of the Closing Date:
(i) a legal opinion of Weil, Gotshal & Xxxxxx LLP, special
counsel for the Credit Parties, substantially in the form of
Schedule 5.1(d)(i);
(ii) a legal opinion of special local counsel for the Credit
Parties for each State in which any Mortgaged Properties are
located, substantially in the form of Schedule 5.1(d)(ii); and
(iii) a legal opinion of special foreign counsel for the
Foreign Borrowers satisfactory in form and content to the Agent.
(e) Personal Property Collateral. The Agent shall have received:
(i) searches of Uniform Commercial Code filings in the
jurisdiction of the chief executive office of each Credit Party and
each jurisdiction where any Collateral is located or where a filing
would need to be made in order to perfect the Trustee's security
interest in the Collateral, copies of the financing statements on
file in such jurisdictions and evidence that no Liens exist other
than Permitted Liens;
(ii) duly executed UCC financing statements for each
appropriate jurisdiction as is necessary, in the Trustee's sole
discretion, to perfect the Trustee's security interest in the
Collateral;
(iii) searches of ownership of intellectual property in the
appropriate governmental offices and such patent/trademark/copyright
filings as requested by the Trustee in order to perfect the
Trustee's security interest in the Collateral;
(iv) all stock certificates evidencing the Capital Stock
pledged to the Trustee pursuant to the Pledge Agreements, together
with duly executed undated stock powers attached thereto (unless,
with respect to the pledged Capital Stock of any Foreign Subsidiary,
such stock powers are deemed unnecessary by the Trustee in its
reasonable discretion under the law of the jurisdiction of
incorporation of such Person);
(v) such patent/trademark/copyright filings as requested by
the Trustee in order to perfect the Trustee's security interest in
the Collateral;
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(vi) all instruments and chattel paper in the possession of
any of the Credit Parties, together with allonges or assignments as
may be necessary or appropriate to perfect the Trustee's security
interest in the Collateral;
(vii) duly executed consents as are necessary, in the
Trustee's sole discretion, to perfect the Trustee's security
interest in the Collateral; and
(viii) in the case of any personal property Collateral located
at a premises leased by a Credit Party, such estoppel letters,
consents and waivers from the landlords on such real property as may
be required by the Agent.
(f) Real Property Collateral. The Trustee shall have received, in
form and substance reasonably satisfactory to the Trustee:
(i) fully executed and notarized mortgages, deeds of trust or
deeds to secure debt, or, as applicable, modifications and
amendments of existing mortgages, deeds of trust or deeds to secure
debt (each, as the same may be amended, modified, restated or
supplemented from time to time, a "Mortgage Instrument" and
collectively the "Mortgage Instruments") encumbering the fee
interest and/or leasehold interest of any Credit Party in each real
property asset designated in Schedule 6.20(a) (each a "Mortgaged
Property" and collectively the "Mortgaged Properties");
(ii) ALTA mortgagee title insurance policies (or endorsements
and update of existing policies in favor of the Trustee) issued by
title companies applicable to the Trustee (the "Mortgage Policies"),
in amounts not less than the respective amounts designated in
Schedule 6.20(a) with respect to any particular Mortgaged Property,
assuring the Trustee that each of the Mortgage Instruments creates a
valid and enforceable first priority mortgage lien on the applicable
Mortgaged Property, free and clear of all defects and encumbrances
except Permitted Liens, which Mortgage Policies shall be in form and
substance reasonably satisfactory to the Trustee and shall provide
for affirmative insurance and such reinsurance as the Trustee may
reasonably request, all of the foregoing in form and substance
reasonably satisfactory to the Trustee;
(g) Priority of Liens. The Trustee shall have received satisfactory
evidence that (i) the Trustee, on behalf of the Banks, holds a perfected,
first priority Lien on all Collateral and (ii) none of the Collateral is
subject to any other Liens other than Permitted Liens.
(h) Availability. After giving effect to the initial Loans made and
Letters of Credit outstanding hereunder on the Closing Date, there shall
be at least $100,000,000 of availability existing under the Revolving
Committed Amount.
(i) Evidence of Insurance. Receipt by the Trustee of copies of
insurance policies or certificates of insurance of the Consolidated
Parties evidencing liability and
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casualty insurance meeting the requirements set forth in the Credit
Documents, including, but not limited to, naming the Trustee as loss payee
on behalf of the Banks.
(j) Senior Debt. (i) The Borrower shall have entered into the Senior
Note Indentures, (ii) the Borrower shall have executed the Senior Notes,
(iii) the Agent shall have received a copy, certified by an officer of the
Borrower as true and complete, of the Senior Note Indentures as originally
executed and delivered, and no amendment or modification thereof shall
have been entered into on or prior to the Closing Date which shall not
have been approved by each of the Banks and (iv) the Borrower shall have
received Net Offering Proceeds from the sale of Senior Notes in an
aggregate principal amount of at least $950,000,000.
(k) Material Adverse Effect. No material adverse change shall have
occurred since December 31, 1997 in the condition (financial or
otherwise), business, operations, or assets of the Consolidated Parties
taken as a whole.
(l) Litigation. There shall not exist any pending or threatened
action, suit, investigation or proceeding against a Consolidated Party
that could reasonably be expected to have a Material Adverse Effect.
(m) Other Indebtedness. Receipt by the Agent of evidence that upon
the issuance of the Senior Notes, the Consolidated Parties shall have no
Funded Indebtedness other than (i) the Indebtedness under the Credit
Documents, (ii) the Senior Note Indentures and the Senior Notes, and (iii)
Indebtedness permitted by Section 8.1 hereof.
(n) Change in Market. The absence, since the date of the commitment
letter executed by and between the Agent and the Borrower with respect to
the Loans, of any material disruption of, or a material adverse change in,
financial, banking or capital market conditions.
(o) Officer's Certificates. The Agent shall have received a
certificate or certificates executed by an Executive Officer of the
Borrower as of the Closing Date stating that (A) each Credit Party is in
compliance with all existing financial obligations, (B) all governmental
and third party consents and approvals, if any, with respect to the Credit
Documents and the transactions contemplated thereby have been obtained,
(C) no action, suit, investigation or proceeding is pending or threatened
in any court or before any arbitrator or governmental instrumentality that
purports to affect any Credit Party or any transaction contemplated by the
Credit Documents, if such action, suit, investigation or proceeding could
reasonably be expected to have a Material Adverse Effect, (D) the
transactions contemplated by the Senior Note Indentures have been
consummated in accordance with the terms thereof and (E) immediately after
giving effect to this Credit Agreement, the other Credit Documents and all
the transactions contemplated therein to occur on such date, (1) each of
the Credit Parties is Solvent, (2) no Default or Event of Default exists,
(3) all representations and warranties contained herein and in the other
Credit Documents are true and correct in all material respects, and (4)
the Credit Parties are in compliance with each of the financial covenants
set forth in Section 7.11.
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(p) Fees and Expenses. Payment by the Credit Parties of all fees and
expenses owed by them to the Banks and the Agent, including, without
limitation, payment to the Agent of the fees set forth in the Fee Letter.
(q) Other. Receipt by the Banks of such other documents,
instruments, agreements or information as reasonably requested by any
Bank, including, but not limited to, information regarding litigation,
tax, accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, material contracts, debt agreements,
property ownership and contingent liabilities of the Consolidated Parties.
5.2 Conditions to all Extensions of Credit.
The obligations of each Bank to make, convert or extend any Loan and of
the Issuing Lender to issue or extend any Letter of Credit (including the
initial Loans and the initial Letter of Credit) are subject to satisfaction of
the following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 5.1:
(a) The Borrower shall have delivered (i) in the case of any Loan,
an appropriate Notice of Borrowing or Notice of Extension/Conversion, or
(ii) in the case of any Letter of Credit, the Issuing Lender shall have
received an appropriate request for issuance in accordance with the
provisions of Section 2.4(b);
(b) The representations and warranties set forth in Section 6 shall,
subject to the limitations set forth therein, be true and correct in all
material respects as of such date (except for those which expressly relate
to an earlier date);
(c) There shall not have been commenced against any Consolidated
Party an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or any case, proceeding or
other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or
for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case,
proceeding or other action shall remain undismissed, undischarged or
unbonded;
(d) No Default or Event of Default shall exist and be continuing
either prior to or after giving effect thereto;
(e) No development or event which has had or could have a Material
Adverse Effect shall have occurred since December 31, 1997; and
(f) Immediately after giving effect to the making of such Loan (and
the application of the proceeds thereof) or to the issuance of such Letter
of Credit, as the case may be, (i) the sum of the aggregate principal
amount of outstanding Revolving Loans plus the aggregate principal amount
of outstanding Competitive Loans plus the Dollar Amount of the aggregate
principal amount of Foreign Loans plus the aggregate principal amount of
Swingline Loans plus the Dollar Amount of LOC Obligations outstanding
shall not exceed
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the Revolving Committed Amount, and (ii) the Dollar Amount of LOC
Obligations shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing, each Notice of Extension/Conversion
and each request for a Letter of Credit pursuant to Section 2.4(b) shall
constitute a representation and warranty by the Credit Parties of the
correctness of the matters specified in subsections (b), (c), (d), (e) and (f)
above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents to the Agent and each Bank that:
6.1 Financial Condition.
The audited consolidated balance sheet and income statement of the
Consolidated Parties for the fiscal year ended December 31, 1997 have heretofore
been furnished to the Banks. Such financial statements (including the notes
thereto) (i) have been audited by Ernst & Young LLP, (ii) have been prepared in
accordance with GAAP consistently (except for departures from GAAP described in
section 1.3 hereof), applied throughout the periods covered thereby and (iii)
present fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated financial condition, results of operations and cash
flows of the Consolidated Parties as of such date and for such period. During
the period from December 31, 1997 to and including the Closing Date, there has
been no sale, transfer or other disposition by any Consolidated Party of any
material part of the business or property of the Consolidated Parties, taken as
a whole, and no purchase or other acquisition by any of them of any business or
property (including any capital stock of any other person) material in relation
to the consolidated financial condition of the Consolidated Parties, taken as a
whole, in each case, which, is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Banks on or prior to the Closing Date.
6.2 No Material Change.
Since December 31, 1997, (a) there has been no development or event
relating to or affecting a Consolidated Party which has had or could reasonably
be expected to have a Material Adverse Effect and (b) except as otherwise
permitted under this Credit Agreement, no dividends or other distributions have
been declared, paid or made upon the Capital Stock in a Consolidated Party nor
has any of the Capital Stock in a Consolidated Party been redeemed, retired,
purchased or otherwise acquired for value.
6.3 Organization and Good Standing.
Each of the Consolidated Parties (a) is duly organized, validly existing
and is in good standing under the laws of the jurisdiction of its incorporation
or organization, (b) has the corporate or other necessary power and authority,
and the legal right, to own and operate its property, to lease
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the property it operates as lessee and to conduct the business in which it is
currently engaged and (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, other than in such jurisdictions where the failure to be so
qualified and in good standing could reasonably be expected to have a Material
Adverse Effect.
6.4 Power; Authorization; Enforceable Obligations.
Each of the Credit Parties has the corporate or other necessary power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party, and in the case of the Borrower, to obtain
extensions of credit hereunder, and has taken all necessary corporate action to
authorize the borrowings and other extensions of credit on the terms and
conditions of this Credit Agreement and to authorize the execution, delivery and
performance of the Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained or
made by or on behalf of any Credit Party in connection with the borrowings or
other extensions of credit hereunder or with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which such
Credit Party is a party, except for (i) consents, authorizations, notices and
filings described in Schedule 6.4, all of which have been obtained or made or
have the status described in such Schedule 6.4 and (ii) filings to perfect the
Liens created by the Collateral Documents. This Credit Agreement has been, and
each other Credit Document to which any Credit Party is a party will be, duly
executed and delivered on behalf of the Credit Parties. This Credit Agreement
constitutes, and each other Credit Document to which any Credit Party is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of such Credit Party enforceable against such party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
6.5 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by any Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation or bylaws or other organizational or governing documents of such
Person, (b) violate, contravene or materially conflict with any Requirement of
Law or any other law, regulation (including, without limitation, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit applicable to
it, (c) violate, contravene or conflict with contractual provisions of, or cause
an event of default under, any indenture, loan agreement, mortgage, deed of
trust, contract or other agreement or instrument to which it is a party or by
which it may be bound, the violation of which could reasonably be expected to
have a Material Adverse Effect, or (d) result in or require the creation of any
Lien (other than those contemplated in or created in connection with the Credit
Documents) upon or with respect to its properties.
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6.6 No Default.
No Consolidated Party is in default in any respect under any contract,
lease, loan agreement, indenture, mortgage, security agreement or other
agreement or obligation to which it is a party or by which any of its properties
is bound which default could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred or exists except as
previously disclosed in writing to the Banks.
6.7 Ownership.
Each Consolidated Party is the owner of, and has good and marketable title
to, all of its respective assets and none of such assets is subject to any Lien
other than Permitted Liens.
6.8 Indebtedness.
Except as otherwise permitted under Section 8.1, the Consolidated Parties
have no Indebtedness.
6.9 Litigation.
Except as disclosed in Schedule 6.9, there are no actions, suits or legal,
equitable, arbitration or administrative proceedings, pending or, to the
knowledge of any Credit Party, threatened against any Consolidated Party which
could reasonably be expected to have a Material Adverse Effect.
6.10 Tax Returns, Payments and Examinations.
Each Consolidated Party has filed or caused to be filed all federal tax
returns and all material state and local tax returns which are required to be
filed, and has paid all material taxes shown to be due and payable on said
returns or on any assessments made against it or any of its respective
properties and all material taxes, fees and other charges imposed on it or any
of its respective properties by any governmental authority (other than those the
amount or validity of which is contested in good faith by appropriate
proceedings and with respect to which reserves in accordance with GAAP have been
provided on the books of such Consolidated Party); and no tax Liens have been
filed and no claims are being asserted with respect to any such taxes, fees or
other charges (other than such Liens or claims, the amount or validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which reserves in accordance with GAAP have been provided). Except as
set forth on Schedule 6.10 hereto, the federal income tax returns of each
Consolidated Party have been examined by the Internal Revenue Service (or closed
by applicable statues) for all tax periods, and there are no other federal
income tax examinations in progress. All deficiencies which have been asserted
against any Consolidated Party as a result of such examinations have been fully
paid or finally settled or are being contested in good faith, and no issue has
been raised in any such examinations which, by application or similar
principles, reasonably can be expected to result in assertion of a deficiency
for any other year not so examined that has not been accrued on such
Consolidated Party's audited financial statements for its most recently ended
fiscal year that would be required to be so accrued in accordance with GAAP. The
Borrower has no knowledge of any material federal income tax liability for any
Consolidated Party with respect to open taxable years in
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excess of amounts accrued on its consolidated financial statements for its most
recently ended fiscal year that would be required to be so accrued in accordance
with GAAP, nor does the Borrower anticipate any further material tax liability
with respect to such open taxable years taken as a whole in excess of such
accrued amounts.
6.11 Compliance with Law.
Each Consolidated Party is in compliance with all Requirements of Law and
all other laws, rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its properties, unless
such failure to comply could not reasonably be expected to have a Material
Adverse Effect. No Requirement of Law could reasonably be expected to cause a
Material Adverse Effect.
6.12 ERISA.
Except as disclosed and described in Schedule 6.12 attached hereto:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no ERISA Event has occurred, and, to
the best knowledge of the Credit Parties, no event or condition has occurred or
exists as a result of which any ERISA Event could reasonably be expected to
occur, with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each Plan
has been maintained, operated, and funded in material compliance with its own
terms and in material compliance with the provisions of ERISA, the Code, and any
other applicable federal or state laws; and (iv) no lien in favor of the PBGC or
a Plan has arisen or is reasonably likely to arise on account of any Plan.
(b) The accumulated benefit obligation (within the meaning of Financing
Accounting Standards Board Statement 87 ("FASB87") under each Single Employer
Plan utilizing the actuarial and other assumptions employed in calculating the
FASB87 disclosure in the Borrower's most recent annual financial statement did
not exceed the fair market value of the assets of such Plan as of the date of
such financial statement.
(c) Neither any Consolidated Party nor any ERISA Affiliate has incurred,
or, to the best knowledge of the Credit Parties, could be reasonably expected to
incur, any withdrawal liability under ERISA to any Multiemployer Plan or
Multiple Employer Plan. Neither any Consolidated Party nor any ERISA Affiliate
would become subject to any withdrawal liability under ERISA if any Consolidated
Party or any ERISA Affiliate were to withdraw completely from all Multiemployer
Plans and Multiple Employer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. Neither
any Consolidated Party nor any ERISA Affiliate has received any notification
that any Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or
has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of the Credit Parties, reasonably
expected to be in reorganization, insolvent, or terminated.
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(d) No prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility has occurred
with respect to a Plan which has subjected any Consolidated Party or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA
or Section 4975 of the Code, or under any agreement or other instrument pursuant
to which any Consolidated Party or any ERISA Affiliate has agreed or is required
to indemnify any Person against any such liability.
(e) Other than as reflected fairly in the Borrower's most recent
consolidated annual financial statements, neither any Consolidated Party nor any
ERISA Affiliates has any material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the Financial
Accounting Standards Board Statement 106. Each Plan which is a welfare plan (as
defined in Section 3(1) of ERISA) to which Sections 601-609 of ERISA and Section
4980B of the Code apply has been administered in compliance in all material
respects of such sections.
(f) Neither the execution and delivery of this Credit Agreement nor the
consummation of the financing transactions contemplated thereunder will involve
any transaction which is subject to the prohibitions of Sections 404, 406 or 407
of ERISA or in connection with which a tax could be imposed pursuant to Section
4975 of the Code. The representation by the Credit Parties in the preceding
sentence is made in reliance upon and subject to the accuracy of the Banks'
representation in Section 11.16 with respect to their source of funds and is
subject, in the event that the source of the funds used by the Banks in
connection with this transaction is an insurance company's general asset
account, to the application of Prohibited Transaction Class Exemption 95-60, 60
Fed. Reg. 35,925 (1995), compliance with the regulations issued under Section
401(c)(1)(A) of ERISA, or the issuance of any other prohibited transaction
exemption or similar relief, to the effect that assets in an insurance company's
general asset account do not constitute assets of an "employee benefit plan"
within the meaning of Section 3(3) of ERISA of a "plan" within the meaning of
Section 4975(e)(1) of the Code.
6.13 Subsidiaries.
Set forth on Schedule 6.13 is a complete and accurate list of all
Subsidiaries of each Consolidated Party. Information on Schedule 6.13 includes
jurisdiction of incorporation, the number of shares of each class of Capital
Stock outstanding, the number and percentage of outstanding shares of each class
owned (directly or indirectly) by such Consolidated Party; and the number and
effect, if exercised, of all outstanding options, warrants, rights of conversion
or purchase and all other similar rights with respect thereto. The outstanding
Capital Stock of all such Subsidiaries is validly issued, fully paid and
non-assessable and is owned by each such Consolidated Party, directly or
indirectly, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). Other than as set forth
in Schedule 6.13, no Consolidated Party has outstanding any securities
convertible into or exchangeable for its Capital Stock nor does any such Person
have outstanding any rights to subscribe for or to purchase or any options for
the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating to
its Capital Stock.
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6.14 Governmental Regulations, Etc.
(a) No part of the Letters of Credit or proceeds of the Loans will
be used, directly or indirectly, for the purpose of purchasing or carrying
any "margin stock" within the meaning of Regulation U, or for the purpose
of purchasing or carrying or trading in any securities. If requested by
any Bank or the Agent, the Borrower will furnish to the Agent and each
Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. No indebtedness
being reduced or retired out of the proceeds of the Loans was or will be
incurred for the purpose of purchasing or carrying any margin stock within
the meaning of Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Consolidated Parties. None of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of the
Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or regulations issued pursuant thereto, or Regulation T,
U or X.
(b) No Consolidated Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940, each as amended. In addition, no
Consolidated Party is (i) an "investment company" registered or required
to be registered under the Investment Company Act of 1940, as amended, and
is not controlled by such a company, or (ii) a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of any
Consolidated Party is a director, executive officer or principal
shareholder of any Bank. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used with reference
to any Bank) have the respective meanings assigned thereto in Regulation O
issued by the Board of Governors of the Federal Reserve System.
(d) Each Consolidated Party has obtained and holds in full force and
effect, all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, easements, rights of way and other rights,
consents and approvals which are necessary for the ownership of its
respective Property and to the conduct of its respective businesses as
presently conducted.
(e) No Consolidated Party is in violation of any applicable statute,
regulation or ordinance of the United States of America, or of any state,
city, town, municipality, county or any other jurisdiction, or of any
agency thereof (including without limitation, environmental laws and
regulations), which violation could reasonably be expected to have a
Material Adverse Effect.
(f) Each Consolidated Party is current with all material reports and
documents, if any, required to be filed with any state or federal
securities commission or similar agency
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and is in full compliance in all material respects with all applicable
rules and regulations of such commissions.
6.15 Purpose of Loans.
The proceeds of the Loans and the Letters of Credit shall be used solely
by the Borrower (and as applicable each Foreign Borrower) for general corporate
purposes.
6.16 Environmental Matters.
Except as disclosed and described in Schedule 6.16 attached hereto and
except as to matters which do not and could not reasonably be expected to have a
Material Adverse Effect:
(a) Each of the facilities and properties owned, leased or operated by the
Consolidated Parties (the "Properties") and all operations at the Properties are
in compliance with all applicable Environmental Laws, and there is no violation
of any Environmental Law with respect to the Properties or the businesses
operated by the Consolidated Parties (the "Businesses"), and there are no
conditions relating to the Businesses or Properties that could give rise to
liability under any applicable Environmental Laws.
(b) None of the Properties contains, or has previously contained, any
Materials of Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute or constituted a violation of, or could give rise
to liability under, Environmental Laws.
(c) No Consolidated Party has received any written or verbal notice of, or
inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Properties or the Businesses, nor does any Consolidated Party have
knowledge or reason to believe that any such notice will be received or is being
threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties, or generated, treated, stored or disposed of
at, on or under any of the Properties or any other location, in each case by or
on behalf of any Consolidated Party in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the best knowledge of the Borrower, threatened, under any
Environmental Law to which any Consolidated Party is or will be named as a
party, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Consolidated Parties, the Properties or the Businesses.
(f) There has been no release, or threat of release, of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations (including, without limitation, disposal) of any Consolidated
Party in connection with the Properties or otherwise in connection with the
Businesses, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
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6.17 Intellectual Property.
Each Consolidated Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, technology, know-how and processes (the
"Intellectual Property") necessary for each of them to conduct its business as
currently conducted except for those the failure to own or have such legal right
to use could not reasonably be expected to have a Material Adverse Effect. Set
forth on Schedule 6.17 is a list of all Intellectual Property owned by each
Consolidated Party or that any Consolidated Party has the right to use,
excluding only (i) such Intellectual Property owned by any Consolidated Party
that has been abandoned by such Consolidated Party and is no longer used or
valuable to such Consolidated Party's current business operations, and (ii) any
foreign patents, trademarks or related Intellectual Property. Except as provided
on Schedule 6.17, no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does any Credit
Party know of any such claim, and to the Credit Parties' knowledge the use of
such Intellectual Property by any Consolidated Party does not infringe on the
rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
6.18 Solvency.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement and the Senior Note Indentures, will be
Solvent.
6.19 Investments.
All Investments of each Consolidated Party are Permitted Investments.
6.20 Location of Collateral.
Set forth on Schedule 6.20(a) is a list of all Mortgaged Properties with
street address, county and state where located. Set forth on Schedule 6.20(b) is
a list of all locations where any tangible personal property of a Consolidated
Party is located, including county and state where located. Set forth on
Schedule 6.20(c) is the chief executive office and principal place of business
of each Consolidated Party.
6.21 Disclosure.
Neither this Credit Agreement nor any financial statements delivered to
the Banks nor any other document, certificate or statement furnished to the
Banks by or on behalf of any Consolidated Party in connection with the
transactions contemplated hereby contains on the date of delivery thereof any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein or herein not misleading.
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6.22 No Burdensome Restrictions.
No Consolidated Party is a party to any agreement or instrument or subject
to any other obligation or any charter or corporate restriction or any provision
of any applicable law, rule or regulation which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
6.23 Brokers' Fees.
No Consolidated Party has any obligation to any Person in respect of any
finder's, broker's, investment banking or other similar fee in connection with
any of the transactions contemplated under the Credit Documents.
6.24 Labor Matters.
Except as disclosed on Schedule 6.24, there are no collective bargaining
agreements or Multiemployer Plans covering the employees of a Consolidated Party
as of the Closing Date. There are no strikes, work stoppages or controversies
pending between any Credit Party and any of its employees, other than employee
grievances arising in the ordinary course of business, which in the aggregate do
not and are not reasonably expected to have a Material Adverse Effect.
6.25 Year 2000 Compliance.
The Borrower has conducted a review and assessment of its and the
Subsidiaries computer applications and made inquiry of its key suppliers,
vendors and customers with respect to the "year 2000 problem" (that is, the risk
that computer applications may not be able to properly perform date-sensitive
functions after December 31, 1999) and, based on that review and inquiry, the
Borrower believes that the year 2000 problem will not result in a Material
Adverse Effect.
SECTION 7
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that, so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
7.1 Information Covenants.
The Borrower will furnish, or cause to be furnished, to the Agent and each
of the Banks:
(a) Annual Financial Statements. As soon as available, and in any
event within 95 days after the close of each fiscal year of the
Consolidated Parties, a consolidated balance sheet and income statement of
the Consolidated Parties, as of the end of such fiscal year, together with
related consolidated statements of operations and retained earnings and
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of cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and
audited by independent certified public accountants of recognized national
standing reasonably acceptable to the Agent and whose opinion shall be to
the effect that such financial statements have been prepared in accordance
with GAAP (except for changes with which such accountants concur or are
otherwise permitted by Section 1.3) and shall not be limited as to the
scope of the audit or qualified as to the status of the Consolidated
Parties as a going concern.
(b) Quarterly Financial Statements. As soon as available, and in any
event within 50 days after the close of each of the first three fiscal
quarters of each fiscal year of the Consolidated Parties a consolidated
balance sheet and income statement of the Consolidated Parties, as of the
end of such fiscal quarter, together with related consolidated statements
of operations and retained earnings and of cash flows for such fiscal
quarter, in each case setting forth in comparative form consolidated
figures for the corresponding period of the preceding fiscal year, all
such financial information described above to be in reasonable form and
detail and reasonably acceptable to the Agent, and accompanied by a
certificate of an Executive Officer of the Borrower to the effect that
such quarterly financial statements fairly present in all material
respects the financial condition of the Consolidated Parties and have been
prepared in accordance with GAAP, subject to changes resulting from audit
and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of an Executive Officer of the Borrower substantially in the form of
Exhibit 7.1(c), (i) demonstrating compliance with the financial covenants
contained in Section 7.11 by calculation thereof as of the end of each
such fiscal period and (ii) stating that no Default or Event of Default
exists, or if any Default or Event of Default does exist, specifying the
nature and extent thereof and what action the Credit Parties propose to
take with respect thereto.
(d) Annual Business Plan and Budgets. At least 60 days after the end
of each fiscal year of the Borrower, beginning with the fiscal year ending
closest to December 31, 1998, an annual business forecast of the
Consolidated Parties containing, among other things, financial statements
for the next fiscal year and such other financial information reasonably
satisfactory to the Agent; together with appropriate supporting details as
requested by any Bank; and as soon as possible, but in no event later than
fifty (50) days after the close of each of the first three fiscal quarters
and ninety-five (95) days after the close of each fiscal year, a statement
in which the actual results of such fiscal quarter are compared with the
most recent forecasts for such fiscal quarter.
(e) Compliance With Certain Provisions of the Credit Agreement.
Within 95 days after the end of each fiscal year of the Credit Parties, or
more frequently if requested by the Agent, a certificate containing
information regarding (i) the amount of all Asset Dispositions, and (ii)
other matters reasonably requested by the Required Banks.
(f) Accountant's Certificate. As soon as available, but in any event
within 105 days after the close of each fiscal year of the Consolidated
Parties, a certificate of the
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accountants conducting the annual audit stating that they have reviewed
this Credit Agreement and stating further whether, in the course of their
audit, they have become aware of any Default or Event of Default and, if
any such Default or Event of Default exists, specifying the nature and
extent thereof.
(g) Auditor's Reports. Promptly upon receipt thereof, a copy of any
other report or "management letter" submitted by independent accountants
to any Consolidated Party in connection with any annual, interim or
special audit of the books of such Person.
(h) Reports. Promptly upon transmission or receipt thereof, (i)
copies of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies of
all financial statements, proxy statements, notices and reports as any
Consolidated Party shall send to its shareholders or to a holder of any
Indebtedness owed by any Consolidated Party in its capacity as such a
holder and (ii) upon the reasonable request of the Agent, all reports and
written information to and from the United States Environmental Protection
Agency, or any state or local agency responsible for environmental
matters, the United States Occupational Health and Safety Administration,
or any state or local agency responsible for health and safety matters, or
any successor agencies or authorities concerning environmental, health or
safety matters.
(i) Notices. Upon obtaining knowledge thereof, the Borrower will
give written notice to the Agent immediately of (i) the occurrence of an
event or condition consisting of a Default or Event of Default, specifying
the nature and existence thereof and what action the Credit Parties
propose to take with respect thereto, and (ii) the occurrence of any of
the following with respect to any Consolidated Party (A) the pendency or
commencement of any litigation, arbitral or governmental proceeding
against such Person which if adversely determined is reasonably expected
to have a Material Adverse Effect, (B) the institution of any proceedings
against such Person with respect to, or the receipt of notice by such
Person of potential liability or responsibility for violation, or alleged
violation of any federal, state or local law, rule or regulation,
including but not limited to, Environmental Laws, which if adversely
determined could reasonably be expected to have a Material Adverse Effect,
or (C) any notice or determination concerning the imposition of any
withdrawal liability by a Multiemployer Plan against such Person or any
ERISA Affiliate, the determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of Title IV of ERISA
or the termination of any Plan.
(j) ERISA. Upon obtaining knowledge thereof, the Borrower will give
written notice to the Agent promptly (and in any event within five
Business Days) of: (i) of any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or might reasonably
lead to, an ERISA Event; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Credit Parties or any ERISA Affiliates, or
of a determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which any Consolidated Party or any
ERISA Affiliate is required to contribute to each Plan pursuant to its
terms and as required to meet the
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minimum funding standard set forth in ERISA and the Code with respect
thereto; or (iv) any change in the funding status of any Plan that could
reasonably be expected to have a Material Adverse Effect, together with a
description of any such event or condition or a copy of any such notice
and a statement by the chief financial officer of the Borrower briefly
setting forth the details regarding such event, condition, or notice, and
the action, if any, which has been or is being taken or is proposed to be
taken by the Credit Parties with respect thereto. Promptly upon request,
the Credit Parties shall furnish the Agent and the Banks with such
additional information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return (Form
5500 series), as well as all schedules and attachments thereto required to
be filed with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each "plan year" (within
the meaning of Section 3(39) of ERISA).
(k) Notice of Environmental Claims. Except as previously disclosed
to the Agent, notify the Agent in writing, promptly, and in any event
within twenty (20) days after learning thereof, of any: (A) notice or
claim to the effect that it or any of its Subsidiaries is or may be liable
to any Person as a result of the Release or threatened Release of any
Material of Environmental Concern into the environment; (B) notice that it
or any of its Subsidiaries is subject to investigation by any governmental
authority evaluating whether any action is needed to respond to the
Release or threatened Release of any Material of Environmental Concern
into the environment; (C) notice that any property of it or its
Subsidiaries is subject to a Lien imposed under the Environmental Laws;
(D) notice of violation to it or any of its Subsidiaries or awareness by
it or any of its Subsidiaries of a condition which might reasonably result
in a notice of violation of any environmental, health or safety
requirement under federal, state or local laws, which could reasonably be
expected to have a Material Adverse Effect; (E) commencement or threat of
any judicial or administrative proceeding alleging a violation of any
environmental, health or safety requirement under federal, state or local
laws which could reasonably be expected to have a Material Adverse Effect;
or (F) new or proposed changes to any existing environmental, health or
safety requirement under federal, state or local laws that could
reasonably be expected to have a Material Adverse Effect on the condition
(financial or otherwise) properties, business or results of operations of
the Borrower and its Subsidiaries. With respect to clauses (A) through (F)
above, such notice shall be required only if the liability or potential
liability which is the subject matter of the notice is reasonably likely
to exceed $1,000,000, or if such liability or potential liability when
added to other liabilities of the Borrower and its Subsidiaries of the
kind referred to in any of such clauses (A) through (F) above is
reasonably likely to exceed $5,000,000.
(l) Additional Patents and Trademarks. At the time of delivery of
the financial statements and reports provided for in Section 7.1(a), a
report signed by an Executive Officer of the Borrower setting forth (i) a
list of registration numbers for all patents, trademarks, service marks,
tradenames and copyrights awarded to any Consolidated Party since the last
day of the immediately preceding fiscal year and (ii) a list of all patent
applications, trademark applications, service xxxx applications, trade
name applications and copyright applications submitted by any Consolidated
Party since the last day of the
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immediately preceding fiscal year and the status of each such application,
all in such form as shall be reasonably satisfactory to the Agent.
(m) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or
financial condition of any Consolidated Party as the Agent or the Required
Banks may reasonably request.
7.2 Preservation of Existence and Franchises.
Except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted under Section 8.4 or Section 8.5, the
Borrower will, and will cause each of its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority.
7.3 Books and Records.
The Borrower will, and will cause each of its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP, except for departures from GAAP
(i) which are not material, (y) which will not cause the financial statements to
fail to meet the requirements of the Securities and Exchange Commission for
financial information to be contained or incorporated by reference in
registration statements, and (iii) which do not cause the financial statements
to fail to reflect accurately in all respects the financial condition of the
Borrower.
7.4 Compliance with Law.
The Borrower will, and will cause each of its Subsidiaries to, comply with
all laws, rules, regulations and orders, and all applicable restrictions imposed
by all Governmental Authorities, applicable to it and its Property if
noncompliance with any such law, rule, regulation, order or restriction could
reasonably be expected to have a Material Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness.
The Borrower will, and will cause each of its Subsidiaries to, pay and
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, and (b) all lawful claims (including claims for
labor, materials and supplies) which, if unpaid, might give rise to a Lien upon
any of its properties; provided, however, that no Consolidated Party shall be
required to pay any such tax, assessment, charge, levy, or claim which is being
contested in good faith by appropriate proceedings and as to which adequate
reserves therefor have been established in accordance with GAAP, unless the
failure to make any such payment (i) could give rise to an immediate right to
foreclose on a Lien securing such amounts or (ii) could reasonably be expected
to have a Material Adverse Effect.
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7.6 Insurance.
(a) The Borrower will, and will cause each of its Subsidiaries to, at all
times maintain in full force and effect insurance (including worker's
compensation insurance, liability insurance, property insurance and business
interruption insurance) in such amounts, covering such risks and liabilities and
with such deductibles or self-insurance retentions as are in accordance with
reasonable business practices. The Trustee shall be named as loss payee or
mortgagee, as its interest may appear, with respect to any such insurance
providing coverage in respect of any Collateral, and each provider of any such
insurance shall agree, by endorsement upon the policy or policies issued by it
or by independent instruments furnished to the Trustee, that it will give the
Trustee thirty (30) days prior written notice before the coverage of any such
policy or policies shall be materially altered or canceled, and that no act or
default of any Consolidated Party or any other Person shall affect the rights of
the Trustee or the Banks under such policy or policies. Such policies may
provide that, prior to written notification from the Agent of the incurrence of
an Event of Default, the insurer may make settlement payments in respect of such
policies directly to the Borrower notwithstanding the Trustee's status as a loss
payee, for payments aggregating less than $5 million for any single casualty,
loss or damage incurred by any of the Credit Parties and not exceeding an
aggregate of $10 million for all such payments made during any twelve month
period by such insurer or its Affiliates. The present insurance coverage of the
Consolidated Parties is outlined as to carrier, policy number, expiration date,
type and amount on Schedule 7.6.
(b) In case of any material loss, damage to or destruction of the
Collateral of any Credit Party or any part thereof, such Credit Party shall
promptly give written notice thereof to the Agent generally describing the
nature and extent of such damage or destruction. In case of any loss, damage to
or destruction of the Collateral of any Credit Party or any part thereof, such
Credit Party, whether or not the insurance proceeds, if any, received on account
of such damage or destruction shall be sufficient for that purpose, at such
Credit Party's cost and expense, will promptly repair or replace the Collateral
of such Credit Party so lost, damaged or destroyed; provided, however, that such
Credit Party need not repair or replace the Collateral of such Credit Party so
lost, damaged or destroyed to the extent the failure to make such repair or
replacement (i) is desirable to the proper conduct of the business of such
Credit Party in the ordinary course and otherwise in the best interest of such
Credit Party; and (ii) would not materially impair the rights and benefits of
the Agent or the Banks under the Collateral Documents, any other Credit Document
or any Hedging Agreement. Notwithstanding any provision to the contrary
contained in this Credit Agreement, none of the Credit Parties shall undertake
replacement or restoration of any lost, damaged or destroyed Collateral of such
Credit Party with insurance proceeds in respect thereof unless the Agent has
received evidence reasonably satisfactory to it that the Collateral lost,
damaged or destroyed has been or will be replaced or restored to its condition
immediately prior to the loss, destruction or other event giving rise to the
payment of such insurance proceeds.
7.7 Maintenance of Property.
The Borrower will, and will cause each of its Subsidiaries to, maintain
and preserve its properties and equipment material to the conduct of its
business in good repair, working order and condition, normal wear and tear and
casualty and condemnation excepted, and will make, or cause to be made, in such
properties and equipment from time to time all repairs, renewals, replacements,
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extensions, additions, betterments and improvements thereto as may be needed or
proper, to the extent and in the manner customary for companies in similar
businesses.
7.8 Performance of Obligations.
The Borrower will, and will cause each of its Subsidiaries to, perform in
all respects all of its obligations under the terms of all agreements,
indentures, mortgages, security agreements or other debt instruments to which it
is a party or by which it is bound, except in any instance where the failure to
perform such obligations does not have and could not reasonably be expected to
have a Material Adverse Effect.
7.9 Use of Proceeds.
The Borrower will use the proceeds of the Loans solely for the purposes
set forth in Section 6.15.
7.10 Audits/Inspections.
Upon reasonable notice and during normal business hours, the Borrower
will, and will cause each of its Subsidiaries to, permit each Bank and
representatives appointed by the Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit each Bank and the Agent or its
representatives to investigate and verify the accuracy of information provided
to the Banks and to discuss all such matters with the officers, employees and
representatives of such Person. The Borrower agrees that the Agent, and its
representatives, may conduct an annual audit of the Collateral, at the expense
of the Credit Parties.
7.11 Financial Covenants. The Borrower shall:
(a) Minimum Consolidated Net Worth. Have a Consolidated Net Worth as of
the last day of each fiscal quarter of not less than $255,000,000, increased on
a cumulative basis as of the end of each fiscal quarter of the Consolidated
Parties, commencing with the fiscal quarter ending June 30, 1998, by an amount
equal to forty percent (40%) of Consolidated Net Income (to the extent positive)
for the fiscal quarter then ended.
(b) Minimum Current Ratio. Have at all times a Current Ratio of not less
than 1.4 to 1.
(c) Interest Coverage Ratio. Have at the end of each fiscal quarter an
Interest Coverage Ratio which is not less than 1.75 to 1.0.
7.12 Additional Credit Parties.
As soon as practicable and in any event within 30 days after any Person
becomes a Subsidiary of any Credit Party, the Borrower shall provide the Trustee
with written notice thereof
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setting forth information in reasonable detail describing all of the assets of
such Person and shall (a) if such Person is a Domestic Subsidiary of a Credit
Party, cause such Person to execute a Joinder Agreement in substantially the
same form as Exhibit 7.12 and a guaranty agreement substantially in the form of
Exhibit A to the Collateral Trust Agreement, (b) cause 100% (if such Person is a
Domestic Subsidiary of a Credit Party) or 65% (if such Person is a direct
Foreign Subsidiary of a Credit Party) of the Capital Stock of such Person to be
delivered to the Trustee together with undated stock powers signed in blank
(unless, with respect to a Foreign Subsidiary, such stock powers are deemed
unnecessary by the Trustee in its reasonable discretion under the law of the
jurisdiction of incorporation of such Person) and pledged to the Trustee
pursuant to an appropriate pledge agreement(s) in substantially the form of the
Pledge Agreement and otherwise in form acceptable to the Trustee and (c) cause
such Person to (i) if such Person owns or leases any real property located in
the United States of America, deliver to the Trustee with respect to such real
property documents, instruments and other items of the types required to be
delivered pursuant to Section 5.1(f) all in form, content and scope reasonably
satisfactory to the Trustee and (ii) deliver such other documentation as the
Trustee may reasonably request in connection with the foregoing, including,
without limitation, appropriate UCC-1 financing statements, real estate title
insurance policies, environmental reports, landlord's waivers, certified
resolutions and other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to above and the perfection of the Trustee's liens
thereunder) and other items of the types required to be delivered pursuant to
Section 5.1(b), (d), (e), (f) and (g), all in form, content and scope reasonably
satisfactory to the Trustee.
7.13 Real Estate Appraisals.
To the extent required by law (including pursuant to regulations
promulgated under the Financial Institutions Reform, Recovery and Enforcement
Act of 1989, as amended), and at the written request of the Agent, the Borrower
will obtain appraisals of the Mortgaged Properties, at the Borrower's own
expense from reputable appraisers acceptable to the Agent, and provide copies of
such appraisals to the Banks.
7.14 Environmental Assessments.
To the extent required by law or upon the reasonable written request by
the Agent or the Trustee, the Borrower will, and cause each of its Subsidiaries
to, furnish or cause to be furnished to the Agent, at the Borrower's expense, a
report of an environmental assessment of reasonable scope, form and depth,
(including, where appropriate, invasive soil or groundwater sampling) by a
consultant reasonably acceptable to the Agent as to the nature and extent of the
presence of any Materials of Environmental Concern on any Mortgaged Properties
and as to the compliance by any Consolidated Party with Environmental Laws at
such Properties. If the Credit Parties fail to deliver such an environmental
report within seventy-five (75) days after receipt of such written request then
the Agent may arrange for same, and the Consolidated Parties hereby grant to the
Agent and their representatives access to the Mortgaged Properties to reasonably
undertake such an assessment (including, where appropriate, invasive soil or
groundwater sampling). The reasonable cost of any assessment arranged for by the
Agent pursuant to this provision will be payable by the Credit Parties on demand
and added to the obligations secured by the Collateral Documents.
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7.15 Repayment of Xxxxxxx Indenture Obligations.
The Borrower will cause all of the Xxxxxxx Indenture Obligations (as
defined in the Collateral Trust Agreement) to be fully paid and satisfied, and
the Xxxxxxx Debentures (as defined in the Collateral Trust Agreement) to be
redeemed in their entirety on or before the sixtieth (60th) day after the
Closing Date.
SECTION 8
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that, so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:
8.1 Indebtedness.
The Borrower will not, and will not permit any Consolidated Party to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other
Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries set forth in
Schedule 8.1 (and renewals, refinancings and extensions thereof on terms
and conditions no less favorable to such Person than such existing
Indebtedness and no such Indebtedness shall be refinanced for a principal
amount in excess of the principal balance outstanding thereon at the time
of such refinancing);
(c) purchase money Indebtedness (including obligations in respect of
Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or
any of its Subsidiaries to finance the purchase of fixed assets provided
that (i) the total of all such Indebtedness for all such Persons taken
together (including any such Indebtedness referred to in subsection (b)
above) shall not exceed an aggregate principal amount of $20,000,000 at
any one time outstanding; (ii) such Indebtedness when incurred shall not
exceed the purchase price of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;
(d) obligations of the Borrower or any of its Subsidiaries in
respect of Hedging Agreements entered into in order to manage existing or
anticipated interest rate or exchange rate risks and not for speculative
purposes; provided that the total of such Indebtedness for all such
Persons taken together shall not exceed $10,000,000 at any time calculated
on a marked-to-market basis;
(e) intercompany Indebtedness arising out of loans and advances
permitted under Section 8.6;
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(f) obligations of the Borrower or any of its Subsidiaries in
connection with any Permitted Receivables Financing, to the extent such
obligations constitute Indebtedness;
(g) Indebtedness arising under the Senior Note Indentures and the
Senior Notes;
(h) in addition to the Indebtedness otherwise permitted by this
Section 8.1, other unsecured Indebtedness hereafter incurred by the
Borrower or any of its Subsidiaries provided that the aggregate principal
amount of such Indebtedness plus the aggregate outstanding principal
amount of Indebtedness permitted pursuant to clauses (b) and (c) above
shall not exceed $100,000,000 at any time;
(i) other unsecured Indebtedness of the Borrower or its
Subsidiaries, if at the time of and after giving pro forma effect to the
incurrence of such Indebtedness (including the application of the proceeds
thereof) and any Acquisitions and any Asset Dispositions that occurred
during the period beginning four full fiscal quarters immediately prior to
such incurrence as though such events occurred on the first day of such
period, the Interest Coverage Ratio for such four fiscal quarter period of
the Borrower is equal to or greater than 1.75 to 1.0; and
(j) Guaranty Obligations of any Credit Party with respect to any
Indebtedness of another Credit Party permitted under this Section 8.1.
8.2 Liens.
The Borrower will not, and will not permit any Consolidated Party to,
contract, create, incur, assume or permit to exist any Lien with respect to any
of its Property, whether now owned or after acquired, except for Permitted
Liens.
8.3 Nature of Business.
The Borrower will not, and will not permit any Consolidated Party to,
substantially alter the character or conduct of the business conducted by such
Person as of the Closing Date.
8.4 Consolidation, Merger, Dissolution, etc.
The Borrower will not, and will not permit any Consolidated Party to,
enter into any transaction of merger or consolidation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution); provided that,
notwithstanding the foregoing provisions of this Section 8.4:
(a) the Borrower may merge or consolidate with any of its
Subsidiaries provided that (i) the Borrower shall be the continuing or
surviving corporation, and (ii) the Credit Parties shall cause to be
executed and delivered such documents, instruments and certificates as the
Trustee may request so as to cause the Credit Parties to be in compliance
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with the terms of Sections 2.2 and 2.3 of the Collateral Trust Agreement
after giving effect to such transaction;
(b) any Credit Party other than the Borrower may merge or
consolidate with any other Credit Party other than the Borrower provided
that the Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Trustee may request so as
to cause the Credit Parties to be in compliance with the terms of Sections
2.2 and 2.3 of the Collateral Trust Agreement after giving effect to such
transaction;
(c) any Consolidated Party which is not a Credit Party may be merged
or consolidated with or into any Credit Party provided that (i) such
Credit Party shall be the continuing or surviving corporation and (ii) the
Credit Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Agent may request so as to cause the
Credit Parties to be in compliance with the terms of Sections 2.2 and 2.3
of the Collateral Trust Agreement after giving effect to such transaction;
(d) any Consolidated Party which is not a Credit Party may be merged
or consolidated with or into any other Consolidated Party which is not a
Credit Party;
(e) the Borrower or any Subsidiary of the Borrower may merge with
any Person other than a Consolidated Party in connection with an
Acquisition permitted by Section 8.6(b) if (i) the Borrower or such
Subsidiary shall be the continuing or surviving corporation, (ii) the
Credit Parties shall cause to be executed and delivered such documents,
instruments and certificates as the Trustee may request so as to cause the
Credit Parties to be in compliance with the terms of Sections 2.2 and 2.3
of the Collateral Trust Agreement after giving effect to such transaction
and (iii) the Borrower shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect on a pro
forma basis to such transaction, no Default or Event of Default would
exist; and
(f) any Wholly-Owned Subsidiary of the Borrower may dissolve,
liquidate or wind up its affairs at any time.
8.5 Asset Dispositions.
The Borrower will not, and will not permit any Consolidated Party to, make
any Asset Disposition (including, without limitation, any Sale and Leaseback
Transaction) other than Excluded Asset Dispositions unless (a) if such
transaction is a Sale and Leaseback Transaction, such transaction is permitted
by the terms of Section 8.12, (b) such transaction does not involve the sale or
other disposition of a minority equity interest in any Consolidated Party, (c)
the Borrower shall have delivered to the Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect on a pro forma basis to such
transaction, no Default or Event of Default would exist hereunder, and (d) no
later than 10 Business Days prior to such Asset Disposition, the Agent and the
Banks shall have received a certificate of an officer of the Borrower specifying
the anticipated or actual date of such Asset Disposition, briefly describing the
assets to be sold or otherwise disposed of and setting forth the net book value
of such assets, the aggregate consideration and the Net Cash Proceeds to be
received for such assets in connection with such Asset Disposition, and
thereafter the Borrower shall (or cause its Subsidiaries to), within the period
of 10 Business Days
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following the consummation of such Asset Disposition, apply (or cause to be
applied) an amount equal to the Net Cash Proceeds of such Asset Disposition to
prepay the Loans (or cash collateralize outstanding LOC Obligations) in
accordance with the terms of Section 3.3(b)(ii).
8.6 Investments and Acquisitions.
(a) Investments and Loans. The Borrower will not, and will not permit any
Consolidated Party to, have or make any loan or advance to or investment in any
Subsidiary or other Affiliate or any other Persons except (i) Subsidiaries of
the Borrower may make any loans and/or advances to the Borrower, (ii) for
Permitted Investments, (iii) for investments that are Capital Expenditures;
provided however, that neither the Borrower nor any of its Subsidiaries shall
make such an investment in a Subsidiary other than a Credit Party except as
permitted by Section 8.6 (a)(viii) hereof, (iv) the Borrower may maintain its
Investments in, and have loans and/or advances to, its Subsidiaries existing on
the date hereof and thereafter may make loans and/or advances to the other
Credit Parties in the ordinary course of business consistent with past
practices, (v) each Subsidiary of the Borrower may maintain its Investments in,
and have loans and/or advances to, its Subsidiaries existing on the date hereof
and thereafter may make loans and/or advances to such Subsidiaries that are
Credit Parties in the ordinary course of business consistent with past
practices, (vi) the Borrower may make loans and/or advances (A) to employees of
the Borrower and its Subsidiaries, provided such loans do not exceed $500,000 to
any one such employee and $1,500,000 in the aggregate and (B) to employees of
the Borrower and its Subsidiaries to cover reasonable travel expenses incurred
in the ordinary course of business within the scope of such employee's
employment, (vii) the Borrower and its Subsidiaries may make investments (x)
permitted by Section 8.6(b) and (y) in Xxxxx as set forth in the Permitted
Receivables Financing; provided, that any such Investments in Xxxxx to be made
in cash shall not exceed an aggregate outstanding amount of $10,000,000 at any
one time, and, without duplication, (viii) loans, advances and Investments to
and in Foreign Subsidiaries and joint ventures of the Borrower and its
Subsidiaries in the cumulative amount of $50,000,000 from and after the Closing
Date (in addition to the Borrower's Investments in WestPoint Xxxxxxx (Europe)
Limited and WestPoint Xxxxxxx (UK) Limited existing as of the Closing Date), and
(viii) advances and royalty payments to customers and licensors in the ordinary
course of business.
(b) Acquisitions. The Borrower will not permit any Consolidated Party to
acquire any assets of another Person (including Capital Stock), except (A) each
of the Borrower and its Subsidiaries may acquire (i) inventory and other assets
in the ordinary course of business and (ii) the assets or Capital Stock of its
Subsidiaries, and (B) the Borrower and its Subsidiaries may acquire other assets
(including Capital Stock of Persons that become Subsidiaries after the Closing
Date) provided that (i) the Acquisition Consideration paid therefor is not
greater than the fair market value of the Property or Capital Stock acquired,
(ii) the aggregate Acquisition Consideration for all such acquisitions from and
after the Closing Date does not exceed $100,000,000, (iii) the Agent shall have
received all items in respect of the Capital Stock or Property acquired in such
Acquisition required to be delivered by the terms of the Collateral Trust
Agreement, (iv) the Borrower shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
Acquisition on a pro forma basis, the Credit Parties shall be in compliance with
all of the covenants set forth in Section 7.11, (v) after giving effect to such
Acquisition, the Revolving Committed Amount shall exceed by at least the Minimum
Available
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Amount the sum of the aggregate principal amount of the Revolving Loans
outstanding plus the aggregate principal amount of the Competitive Loans
outstanding plus the Dollar Amount of the aggregate principal amount of Foreign
Currency Loans outstanding plus the aggregate principal amount of Swingline
Loans outstanding plus the Dollar Amount of LOC Obligations outstanding, (vi) if
any Indebtedness is to be assumed or incurred by any Consolidated Party in
connection with such Acquisition, such Indebtedness is permitted to be incurred
pursuant to Section 8.1 hereof, and (vii) such Acquisition is of a business
engaged in, or of assets used in, the same or a similar business to that
currently conducted by the Borrower and its Subsidiaries.
8.7 Restricted Payments.
The Borrower will not permit any Consolidated Party to make directly or
indirectly any Restricted Payment that would cause the aggregate of all
Restricted Payments made by the Borrower during the term of this Agreement to
exceed the Maximum Restricted Payment Amount. The permitted Restricted Payments
described in this Section 8.7 may be made by the Borrower or its Subsidiaries
only if (i) no Default or Event of Default shall have occurred and be continuing
at the date of the proposed Restricted Payment (or, in the case of a dividend,
the declaration thereof) and after giving effect to such Restricted Payment, and
(ii) at the time or, or after giving effect to, such Restricted Payment, the
Borrower has an Interest Coverage Ratio that is equal to or greater than 1.75 to
1.0.
8.8 Transactions with Affiliates.
The Borrower will not permit any Consolidated Party to enter into any
transaction or any agreement with an Affiliate, including, without limitation,
the purchase, sale or exchange of property or the rendering of any service to or
by an Affiliate; provided that for purposes of the foregoing restriction, the
Borrower and its Subsidiaries and Xxxxx shall not be considered to be Affiliates
of each other, and except that the Borrower and its Subsidiaries may enter into
transactions with Affiliates in the ordinary course of business, provided that
the terms of such transactions are no less favorable to the Borrower or the
relevant Subsidiary than those which would have obtained in a comparable
transaction with an unaffiliated third party.
8.9 Fiscal Year; Organizational Documents.
The Borrower will not (a) permit any other Consolidated Party to change
its fiscal year or amend, modify or change its articles of incorporation (or
corporate charter or other similar organizational document) or bylaws (or other
similar document) in a manner which could have an adverse effect on the Banks as
lenders hereunder, and (b) change its fiscal year or amend modify or change its
articles of incorporation or corporate charter except (i) to provide
indemnification for officers and directors upon customary terms as permitted by
applicable law, and (ii) to make additional amendments to the charter and bylaws
of the Borrower which could not have an adverse effect on the Banks as lenders
hereunder and which do not (A) change the authorized Capital Stock of the
Borrower, except as described in Schedule 8.9, (B) change the name of the
Borrower, or (C) add provisions concerning matters not presently addressed in
such articles of incorporation or bylaws.
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8.10 Limitation on Restricted Actions.
The Borrower will not permit any Consolidated Party to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party, or (e) act as a
Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) the documents executed in
connection with any Permitted Receivables Financing (but only to the extent that
the related encumbrance or restriction pertains to the applicable Transferred
Assets actually sold, contributed, financed or otherwise conveyed or pledged
pursuant to such Permitted Receivables Financing), (iii) applicable law, (iv)
any document or instrument governing Indebtedness incurred pursuant to Section
8.1(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith. The Borrower
will not enter into any amendment or modification of the Senior Notes or the
Senior Indentures which (i) changes the maturity date of such Senior Notes to
occur prior to the Maturity Date or (ii) makes any affirmative or negative
covenants in such Senior Indentures to be more restrictive on the Borrower than
comparable covenants in this Agreement.
8.11 Ownership of Subsidiaries.
Notwithstanding any other provisions of this Credit Agreement to the
contrary, the Borrower will not permit any Consolidated Party to (i) permit any
Person (other than the Borrower or any Wholly-Owned Subsidiary of the Borrower)
to own any Capital Stock of any Domestic Subsidiary of the Borrower, (ii) permit
any Subsidiary of the Borrower to issue Capital Stock (except to the Borrower or
to a Wholly-Owned Subsidiary of the Borrower), (iii) permit, create, incur,
assume or suffer to exist any Lien thereon, in each case except (A) to qualify
directors where required by applicable law or to satisfy other requirements of
applicable law with respect to the ownership of Capital Stock of Foreign
Subsidiaries, (B) as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted under Section 8.4 or Section 8.5 or (C)
for Permitted Liens and (iv) notwithstanding anything to the contrary contained
in clause (ii) above, permit any Subsidiary of the Borrower to issue any shares
of preferred Capital Stock.
8.12 Sale Leasebacks.
Except as permitted by Section 8.1(c) with regard to Synthetic Leases or
Capital Leases, the Borrower will not permit any Consolidated Party to, directly
or indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether a Synthetic Lease or a Capital Lease, of any
Property (whether real, personal or mixed), whether now owned or hereafter
acquired, (a) which such Consolidated Party has sold or transferred or is to
sell or transfer to a Person which is not a Consolidated Party or (b) which such
Consolidated Party intends to use for substantially the same purpose as any
other Property which has been sold or is to be sold or
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transferred by such Consolidated Party to another Person which is not a
Consolidated Party in connection with such lease.
8.13 No Negative Pledges.
The Borrower will not permit any Consolidated Party to enter into, assume
or become subject to any agreement prohibiting or otherwise restricting the
creation or assumption of any Lien upon its properties or assets, whether now
owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation, except (a) pursuant
to this Credit Agreement and the other Credit Documents, (b) pursuant to the
documents executed in connection with any Permitted Receivables Financing (but
only to the extent that the related prohibitions against other encumbrances
pertain to the applicable Transferred Assets actually sold, contributed,
financed or otherwise conveyed or pledged pursuant to such Permitted Receivables
Financing), (c) pursuant to any document or instrument governing Indebtedness
incurred pursuant to Section 8.1(c), provided that any such restriction
contained therein relates only to the asset or assets constructed or acquired in
connection therewith, and (d) pursuant to any document or instrument executed
only by one or more Foreign Subsidiaries of the Borrower in connection with
their obtaining financing in foreign jurisdictions in which they conduct
business (to the extent such financing is otherwise permitted by Section 8.1
hereof), provided that any such restriction relates only to the assets owned by
such Foreign Subsidiaries and does not restrict any pledge of Capital Stock by a
direct Foreign Subsidiary of any Credit Party in favor of the Trustee for the
benefit of the Banks.
8.14 Operating Lease Obligations.
The Borrower will not permit any Consolidated Party to enter into, assume
or permit to exist any Operating Leases, except that the Borrower and its
Subsidiaries may suffer to exist (and enter into renewals of) leases to which
any of them is a party on the Closing Date and may enter into or assume new
Operating Leases in the ordinary course of its business.
8.15 Dividends and Other Distributions.
The Borrower will not permit any Consolidated Party to declare or pay any
dividend on, or purchase or redeem any shares of, any class of Capital Stock of
any Subsidiary of the Borrower (except pursuant to a merger permitted by Section
8.4), or make any other payment or distribution on or in respect of any class of
Capital Stock of any Subsidiary of the Borrower or set aside any amounts for any
such purpose, except:
(i) any wholly-owned Subsidiary of the Borrower may declare and pay
dividends to the Borrower or a wholly-owned Subsidiary of the Borrower; and
(ii) any Subsidiary of the Borrower may distribute shares of its common
stock to holders of the same or another class of its common stock as a stock
dividend or in connection with a stock split.
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8.16 Environmental Liabilities.
The Borrower will not permit any Consolidated Party to become subject to
any liabilities, obligations or costs which the Agent reasonably deems have or
are likely to have a Material Adverse Effect on the condition (financial or
otherwise), properties, business or results of operations of the Borrower and
its Subsidiaries taken as a whole arising out of or relating to (i) the Release
or threatened Release at any location of any Material of Environmental Concern
into the environment, or any remedial action in response thereto, or (ii) any
violation of any environmental, health or safety requirement under federal,
state or local laws; provided, however, that prior to the date that the Borrower
or any Subsidiary of the Borrower is required to pay such liability this
covenant shall not be violated so long as (A) the Borrower shall have notified
the Agent of the assertion of such liability or required expenditures promptly
upon obtaining knowledge of such assertion, (B) the Borrower shall have
continued to furnish the Agent with such information concerning such asserted
liability or required expenditure as the Agent shall have reasonably requested,
or as otherwise provided herein and (C) the Borrower or such Subsidiary shall,
to the extent deemed appropriate in its business judgment, be diligently
pursuing indemnification for such liability or required expenditures from any
Person which has an obligation to provide such indemnification.
8.17 Futures Contracts.
The Borrower will not permit any Consolidated Party to purchase, sell or
otherwise deal with contracts for the future delivery of goods, commodities or
services, or in commodities options, including, without limitation, cotton
futures, except for hedge transactions or hedging positions in a contract for
future delivery of goods, commodities, or services, where such transactions or
positions represent a substitute for transactions to be made or positions to be
taken at a later time and where such transactions or positions are economically
appropriate to the reduction of risks in the conduct and management of the
Consolidated Parties' respective businesses; provided, however, that Hedging
Agreements, as defined in Section 1.1 hereof, are not limited by this provision.
8.18 Inactive Subsidiaries.
The Borrower will not permit any Consolidated Party to transfer any asset
or assets (including Capital Stock) with an aggregate value in excess of $10,000
to any Inactive Subsidiary or permit any Inactive Subsidiary to engage in any
business activity unless such Inactive Subsidiary is then a Guarantor and
Grantor under the Collateral Trust Agreement.
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SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any of
the Loans or of any reimbursement obligations arising from drawings
under Letters of Credit, or
(ii) default, and such default shall continue for two (2) or
more Business Days, in the payment when due of any interest on the
Loans or on any reimbursement obligations arising from drawings
under Letters of Credit, or of any Fees or other amounts owing
hereunder, under any of the other Credit Documents or in connection
herewith or therewith; or
(b) Representations. Any representation, warranty or statement made
or deemed to be made by any Credit Party herein, in any of the other
Credit Documents, or in any statement or certificate delivered or required
to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was deemed to have been made;
or
(c) Covenants. Any Credit Party shall
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.9, 7.11, or 7.12;
(ii) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.1(a), (b) (c) or (d)
and such default shall continue unremedied for a period of at least
5 days;
(iii) default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsections (a), (b), (c)(i) or (c)(ii) of this Section 9.1)
contained in this Credit Agreement and such default shall continue
unremedied for a period of at least 20 days after the earlier of a
responsible officer of a Credit Party becoming aware of (or should
have been aware of) such default or written or telephonic notice
(confirmed in writing) thereof by the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any term, covenant or agreement in
any of the other Credit
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Documents (subject to applicable grace or cure periods, if any), or (ii)
except as a result of or in connection with a dissolution, merger or
disposition of a Subsidiary permitted under Section 8.4 or Section 8.5,
any Credit Document shall fail to be in full force and effect or to give
the Agent, the Trustee and/or the Banks the Liens, rights, powers and
privileges purported to be created thereby, or any Credit Party shall so
state in writing; or
(e) Guaranties. Except as the result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted under Section
8.4 or Section 8.5, the guaranty given by any Guarantor hereunder
(including any Additional Credit Party) or any provision thereof shall
cease to be in full force and effect, or any Guarantor (including any
Additional Credit Party) hereunder or any Person acting by or on behalf of
such Guarantor shall deny or disaffirm such Guarantor's obligations under
such guaranty, or any Guarantor shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed
or observed pursuant to any guaranty; or
(f) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
to any Consolidated Party; or
(g) Defaults under Other Agreements. With respect to any
Indebtedness (other than Indebtedness outstanding under this Credit
Agreement) in excess of $10,000,000 in the aggregate for the Consolidated
Parties taken as a whole, (A) any Consolidated Party shall (1) default in
any payment (beyond the applicable grace period with respect thereto, if
any) with respect to any such Indebtedness, or (2) the occurrence and
continuance of an event of default (and after any applicable grace period)
in the observance or performance relating to such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event or condition shall occur or exist, the effect
of which event or condition is to cause, or permit, the holder or holders
of such Indebtedness (or trustee or agent on behalf of such holders) to
cause any such Indebtedness to become due prior to its stated maturity; or
(B) any such Indebtedness shall be declared due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof; or
(h) Judgments. One or more judgments or decrees shall be entered
against one or more of the Consolidated Parties involving a liability of
$10,000,000 or more in the aggregate (to the extent not paid or fully
covered by insurance provided by a carrier who has acknowledged coverage
and has the ability to perform) and any such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal
within 30 days from the entry thereof; or
(i) ERISA. Any of the following events or conditions, if such event
or condition could reasonably be expected to have a Material Adverse
Effect: (i) any "accumulated funding deficiency," as such term is defined
in Section 302 of ERISA and Section 412 of the Code, whether or not
waived, shall exist with respect to any Plan, or any lien shall arise on
the assets of any Consolidated Party or any ERISA Affiliate in favor of
the PBGC or a Plan; (ii) an ERISA Event shall occur with respect to a
Single Employer Plan, which is, in the reasonable opinion of the Agent,
likely to result in the termination of such Plan for purposes of Title IV
of ERISA; (iii) an ERISA Event shall occur with respect
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to a Multiemployer Plan or Multiple Employer Plan, which is, in the
reasonable opinion of the Agent, likely to result in (A) the termination
of such Plan for purposes of Title IV of ERISA, or (B) any Consolidated
Party or any ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of Section 4241 of
ERISA), or insolvency or (within the meaning of Section 4245 of ERISA)
such Plan; or (iv) any prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Consolidated Party or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which any Consolidated Party or any ERISA
Affiliate has agreed or is required to indemnify any person against any
such liability; or
(j) Senior Note Indentures. There shall occur and be continuing any
Event of Default under and as defined in the Senior Note Indentures; or
(k) Ownership. There shall occur a Change of Control; or
(l) Uninsured Loss. There occurs any material uninsured damage to,
or loss, theft or destruction of, or material environmental impairment to,
any material portion of the Collateral.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the requisite Banks
(pursuant to the voting requirements of Section 11.6) or cured to the
satisfaction of the requisite Banks (pursuant to the voting procedures in
Section 11.6), the Agent shall, upon the request and direction of the Required
Banks, by written notice to the Credit Parties take any of the following
actions:
(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by the Credit Parties to the
Agent and/or any of the Banks hereunder to be due whereupon the same shall
be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Credit
Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the
Credit Parties agree that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Agent additional cash, to be held by the Agent,
for the benefit of the Banks, in a cash collateral account as additional
security for the LOC Obligations in respect of subsequent drawings under
all then outstanding Letters of Credit in an amount equal to the maximum
aggregate amount which may be drawn under all Letters of Credits then
outstanding.
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(d) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents including, without
limitation, all rights and remedies existing under the Collateral
Documents, all rights and remedies against a Guarantor and all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur with respect to the Borrower, then the Commitments shall
automatically terminate and all Loans, all reimbursement obligations arising
from drawings under Letters of Credit, all accrued interest in respect thereof,
all accrued and unpaid Fees and other indebtedness or obligations owing to the
Agent and/or any of the Banks hereunder automatically shall immediately become
due and payable without the giving of any notice or other action by the Agent or
the Banks.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment, Powers and Immunities.
Each Bank hereby irrevocably appoints and authorizes the Agent to act as
its agent under this Credit Agreement and the other Credit Documents with such
powers and discretion as are specifically delegated to the Agent by the terms of
this Credit Agreement and the other Credit Documents, together with such other
powers as are reasonably incidental thereto. The Agent (which term as used in
this sentence and in Section 10.5 and the first sentence of Section 10.6 hereof
shall include its Affiliates and its own and its Affiliates' officers,
directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Credit Agreement and
shall not be a trustee or fiduciary for any Bank; (b) shall not be responsible
to the Banks for any recital, statement, representation, or warranty (whether
written or oral) made in or in connection with any Credit Document or any
certificate or other document referred to or provided for in, or received by any
of them under, any Credit Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Credit Document, or any other
document referred to or provided for therein or for any failure by any Credit
Party or any other Person to perform any of its obligations thereunder; (c)
shall not be responsible for or have any duty to ascertain, inquire into, or
verify the performance or observance of any covenants or agreements by any
Credit Party or the satisfaction of any condition or to inspect the property
(including the books and records) of any Credit Party or any of its Subsidiaries
or Affiliates; (d) shall not be required to initiate or conduct any litigation
or collection proceedings under any Credit Document; and (e) shall not be
responsible for any action taken or omitted to be taken by it under or in
connection with any Credit Document, except for its own gross negligence or
willful misconduct. The Agent may employ agents and attorneys-in-fact and shall
not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
10.2 Reliance by Agent.
The Agent shall be entitled to rely upon any certification, notice,
instrument, writing, or other communication (including, without limitation, any
thereof by telephone or telecopy)
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believed by it to be genuine and correct and to have been signed, sent or made
by or on behalf of the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel for any Credit Party), independent
accountants, and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the holder thereof for all purposes hereof unless
and until the Agent receives and accepts an Assignment and Acceptance executed
in accordance with Section 11.3(b) hereof. As to any matters not expressly
provided for by this Credit Agreement, the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Banks, and such instructions
shall be binding on all of the Banks; provided, however, that the Agent shall
not be required to take any action that exposes the Agent to personal liability
or that is contrary to any Credit Document or applicable law or unless it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking any such
action.
10.3 Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received
written notice from a Bank or the a Credit Party specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Banks. The
Agent shall (subject to Section 10.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Banks, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Banks, except to
the extent that other provisions of this Agreement expressly require that any
such action be taken only with the consent, direction or authorization of the
Banks or the Required Banks, as applicable.
10.4 Rights as a Bank.
With respect to its Commitment and the Loans made by it, NationsBank (and
any successor acting as Agent) in its capacity as a Bank hereunder shall have
the same rights and powers hereunder as any other Bank and may exercise the same
as though it were not acting as the Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Agent in its individual
capacity. NationsBank (and any successor acting as Agent) and its Affiliates may
(without having to account therefor to any Bank) accept deposits from, lend
money to, make investments in, provide services to, and generally engage in any
kind of lending, trust, or other business with any Credit Party or any of its
Subsidiaries or Affiliates as if it were not acting as Agent, and NationsBank
(and any successor acting as Agent) and its Affiliates may accept fees and other
consideration from any Credit Party or any of its Subsidiaries or Affiliates for
services in connection with this Credit Agreement or otherwise without having to
account for the same to the Banks.
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10.5 Indemnification.
The Banks agree to indemnify the Agent (to the extent not reimbursed under
Section 11.5 hereof, but without limiting the obligations of the Credit Parties
under such Section) ratably in accordance with their respective Commitments, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees), or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Agent (including by any Bank) in any way relating to or
arising out of any Credit Document or the transactions contemplated thereby or
any action taken or omitted by the Agent under any Credit Document; provided
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its ratable share of any costs or expenses payable by
the Credit Parties under Section 11.5, to the extent that the Agent is not
promptly reimbursed for such costs and expenses by the Credit Parties. The
agreements in this Section 10.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
10.6 Non-Reliance on Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Credit Parties and their
Subsidiaries and decision to enter into this Credit Agreement and that it will,
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under the Credit Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or any of its Subsidiaries or
Affiliates that may come into the possession of the Agent or any of its
Affiliates.
10.7 Successor Agent.
The Agent may resign at any time by giving notice thereof to the Banks and
the Credit Parties. Upon any such resignation, the Required Banks shall have the
right to appoint a successor Agent reasonably satisfactory to the Borrower. If
no successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent which shall be a commercial Bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 10 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
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10.8 Co-Agents.
The Co-Agents, in their capacity as Co-Agents, shall have no duties or
responsibilities, express or implied, under this Agreement or any other Credit
Document.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid to a reputable national overnight air courier
service, or (d) the third Business Day following the day on which the same is
sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address, in the case of the Credit Parties and the
Agent, set forth below, and, in the case of the Banks, set forth on Schedule
2.1(a), or at such other address as such party may specify by written notice to
the other parties hereto:
if to any Credit Party:
WestPoint Xxxxxxx Inc.
000 X. 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Agent:
NationsBank, N. A.
Independence Center, 15th Floor
NC1-001-15-04
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
NationsBank, N. A.
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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Attn: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
11.2 Right of Set-Off; Adjustments.
Upon the occurrence and during the continuance of any Event of Default,
each Bank (and each of its Affiliates) is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Bank (or any of
its Affiliates) to or for the credit or the account of any Credit Party against
any and all of the obligations of such Person now or hereafter existing under
this Credit Agreement, under the Notes, under any other Credit Document or
otherwise, irrespective of whether such Bank shall have made any demand under
hereunder or thereunder and although such obligations may be unmatured. Each
Bank agrees promptly to notify any affected Credit Party after any such set-off
and application made by such Bank; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Bank under this Section 11.2 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such Bank
may have.
11.3 Benefit of Agreement.
(a) This Credit Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the parties
hereto; provided that none of the Credit Parties may assign or transfer any of
its interests and obligations without prior written consent of the Banks;
provided further that the rights of each Bank to transfer, assign or grant
participations in its rights and/or obligations hereunder shall be limited as
set forth in this Section 11.3.
(b) Each Bank may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Credit Agreement (including,
without limitation, all or a portion of its Loans, its Notes, and its
Commitment); provided, however, that
(i) except in the case of an assignment to another Bank or an
assignment of all of a Bank's rights and obligations under this Credit
Agreement, any such partial assignment shall be in an amount at least
equal to $10,000,000 (or, if less, the remaining amount of the Commitment
being assigned by such Bank) or an integral multiple of $1,000,000 in
excess thereof;
(ii) after such assignment, such Bank and its Affiliates continue to
hold in the aggregate at least 51% of their aggregate initial Commitment
set forth on Schedule 2.1(a);
(iii) each such assignment by a Bank shall be of a constant, and not
varying, percentage of all of its rights and obligations under this Credit
Agreement and the Notes; and
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(iv) the parties to such assignment shall execute and deliver to the
Agent for its acceptance an Assignment and Acceptance in the form of
Exhibit 11.3(b) hereto, together with any Note subject to such assignment
and a processing fee of $2,500 (or if the Assignee is a Bank, $1,500).
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Bank hereunder and
the assigning Bank shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Credit Agreement. Upon
the consummation of any assignment pursuant to this Section 11.3(b), the
assignor, the Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the assignee. If the
assignee is not a United States person under Section 7701(a)(30) of the Code, it
shall deliver to the Borrower and the Agent certification as to exemption from
deduction or withholding of Taxes in accordance with Section 3.11.
(c) The Agent shall maintain at its address referred to in Section 11.1 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Banks and the
Commitment of, and principal amount of the Loans owing to, each Bank from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Credit Parties, the
Agent and the Banks may treat each Person whose name is recorded in the Register
as a Bank hereunder for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Credit Parties or any Bank at any
reasonable time and from time to time upon reasonable prior notice. No
assignment shall be effective unless it has been recorded on the Register as
provided herein.
(d) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit 11.3(b) hereto,
within five (5) Business Days of its receipt thereof (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the parties thereto.
(e) Each Bank may sell participations to one or more Persons in all or a
portion of its rights, obligations or rights and obligations under this Credit
Agreement (including all or a portion of its Commitment or its Loans); provided,
however, that (i) such Bank's obligations under this Credit Agreement shall
remain unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection provisions contained in
Sections 3.7 through 3.12, inclusive, and the right of set-off contained in
Section 11.2, and (iv) the Credit Parties shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Credit Agreement, and such Bank shall retain the sole right to
enforce the obligations of the Credit Parties relating to the Credit Party
Obligations owing to such Bank and to approve any amendment, modification, or
waiver of any provision of this Credit Agreement (other than amendments,
modifications, or waivers decreasing the amount of principal of or the rate at
which interest is payable on such Loans or Notes, extending any
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scheduled principal payment date or date fixed for the payment of interest on
such Loans or Notes reducing the principal amount of any Credit Party
Obligations or any fees owed to the Banks hereunder, or extending its
Commitment).
(f) Notwithstanding any other provision set forth in this Credit
Agreement, any Bank may at any time assign and pledge all or any portion of its
Loans and its Notes to any Federal Reserve Bank as collateral security pursuant
to Regulation A and any Operating Circular issued by such Federal Reserve Bank.
No such assignment shall release the assigning Bank from its obligations
hereunder.
(g) Any Bank may furnish any information concerning the Consolidated
Parties in the possession of such Bank from time to time to assignees and
participants (including prospective assignees and participants), subject,
however, to the provisions of Section 11.15 hereof.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent or any Bank in exercising any
right, power or privilege hereunder or under any other Credit Document and no
course of dealing between the Agent or any Bank and any of the Credit Parties
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Agent or any Bank would otherwise have. No notice to or demand on any Credit
Party in any case shall entitle the Credit Parties to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Agent or the Banks to any other or further action in any
circumstances without notice or demand.
11.5 Expenses; Indemnification.
(a) The Borrower agrees to pay on demand all costs and expenses of the
Agent in connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Credit Agreement, the other
Credit Documents, and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and expenses of counsel for the Agent
(including the cost of internal counsel) with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under the Credit
Documents. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Banks, if any (including, without limitation, reasonable
attorneys' fees and expenses and the cost of internal counsel), in connection
with the enforcement (whether through negotiations, legal proceedings, or
otherwise) of the Credit Documents and the other documents to be delivered
hereunder.
(b) The Borrower agrees to indemnify and hold harmless the Agent and each
Bank and each of their Affiliates and their respective officers, directors,
employees, agents, and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees) that may be incurred
by or asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without limitation, in
connection with any
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investigation, litigation, or proceeding or preparation of defense in connection
therewith) the Credit Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans, except to the extent
such claim, damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 11.5 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by any of the Credit
Parties, their respective directors, shareholders or creditors or an Indemnified
Party or any other Person or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated. The
Borrower agrees not to assert any claim against the Agent, any Bank, any of
their Affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Credit Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
(c) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 11.5 shall survive the repayment of the Loans, LOC Obligations and
other obligations under the Credit Documents and the termination of the
Commitments hereunder.
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing entered into by, or approved in writing by, the Required Banks and the
Borrower, provided, however, that:
without the consent of each Bank affected thereby, neither this
Credit Agreement nor any other Credit Document may be amended to
(a) extend the final maturity of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(b) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or Fees hereunder,
(c) reduce or waive the principal amount of any Loan or of any
reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(d) increase the Commitment of a Bank over the amount thereof
in effect (it being understood and agreed that a waiver of any
Default or Event of Default or mandatory reduction in the
Commitments shall not constitute a change in the terms of any
Commitment of any Bank),
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(e) release all or substantially all of the Collateral,
(f) except as the result of or in connection with a
dissolution, merger or disposition of a Consolidated Party permitted
under Section 8.4, release the Borrower or substantially all of the
other Credit Parties from its or their obligations under the Credit
Documents,
(g) amend, modify or waive any provision of this Section 11.6
or 9.1(a), 11.2, 11.5 or 11.9,
(h) reduce any percentage specified in, or otherwise modify,
the definition of Required Banks,
(i) consent to the assignment or transfer by the Borrower or
all or substantially all of the other Credit Parties of any of its
or their rights and obligations under (or in respect of) the Credit
Documents except as permitted thereby,
(j) without the consent of the Agent, no provision of Section
10 may be amended,
(k) without the consent of the Issuing Lender, no provision of
Section 2.4 may be amended, or
(l) without the consent of the Swingline Lender, no provision
of Section 2.5 may be amended.
Notwithstanding the fact that the consent of all the Banks is required in
certain circumstances as set forth above, (x) each Bank is entitled to
vote as such Bank sees fit on any bankruptcy reorganization plan that
affects the Loans, and each Bank acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersede the unanimous consent
provisions set forth herein and (y) the Required Banks may consent to
allow a Credit Party to use cash collateral in the context of a Bankruptcy
or insolvency proceeding.
11.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any of
the parties hereto of an executed counterpart of this Credit Agreement shall be
as effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be delivered.
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11.8 Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Survival.
All indemnities set forth herein shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, the issuance of the Letters
of Credit, the repayment of the Loans, LOC Obligations and other obligations
under the Credit Documents and the termination of the Commitments hereunder, and
all representations and warranties made by the Borrower herein shall survive
delivery of the Notes and the making of the Loans hereunder.
11.10 Governing Law; Submission to Jurisdiction; Venue.
(a) THIS CREDIT AGREEMENT AND, UNLESS OTHERWISE EXPRESSLY PROVIDED
THEREIN, THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any
legal action or proceeding with respect to this Credit Agreement or any
other Credit Document may be brought in the courts of the State of New
York, or of the United States for the Southern District of New York, and,
by execution and delivery of this Credit Agreement, each of the Borrower
and Foreign Borrowers hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each of the Borrower and the Foreign
Borrowers further irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to the Borrower at the address set out for notices pursuant to
Section 11.1, such service to become effective three (3) days after such
mailing. Nothing herein shall affect the right of the Agent or any Bank to
serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
(b) Each of the Borrower and the Foreign Borrowers hereby
irrevocably waives any objection which it may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Credit Agreement or any other Credit
Document brought in the courts referred to in subsection (a) above and
hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE BANKS,
THE ISSUING LENDER, THE SWINGLINE LENDER, THE BORROWER AND EACH FOREIGN
BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
CREDIT
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AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
11.11 Arbitration.
(a) Each Foreign Borrower agrees that at the Required Banks' sole election
any controversy or claim arising out of or relating to this Credit Agreement or
any of the Credit Documents, or to the breach or nonperformance thereof, may be
settled immediately by submitting the same to binding arbitration in New York,
New York (or such other place as the parties may agree) in accordance with the
Commercial Arbitration Rules then in effect of the American Arbitration
Association. Upon the request and submission of any controversy or claim for
arbitration hereunder, the Agent shall give the Borrower not less than 45 days
written notice of the request for arbitration, the nature of the controversy or
claim, and the time and place set for arbitration. Each Foreign Borrower agrees
that such notice is reasonable to enable such Foreign Borrower sufficient time
to prepare and present its case before the arbitration panel. Judgment on the
award rendered by the arbitration panel may be entered in any court in which any
action could have been brought or maintained pursuant to Section 11.10 of this
Credit Agreement, including without limitation any court of the State of New
York or any federal court sitting in New York. The expense of arbitration shall
be paid as provided by the arbitral panel.
(b) The provisions of subsection (a) hereof are intended to comply with
the requirements of the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (the "Convention"). To the extent that any provisions of
subsection (a) hereof are not consistent with or fail to conform to the
requirements set out in the Convention, subsection (a) hereof shall be deemed
amended to conform to the requirements of the Convention.
(c) Each Foreign Borrower hereby specifically consent and submits to the
jurisdiction of the courts of New York and courts of the United States located
in New York for purposes of entry of a judgment or arbitration award entered by
the arbitration panel.
11.12 Severability.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.13 Amended and Restated Agreement; Entirety.
This Agreement is an amendment, restatement and replacement of the
Original Credit Agreement and the 1994 Credit Agreement. The Loans are for the
purpose of refinancing and replacing the Indebtedness evidenced by the 1994
Credit Agreement and, originally, the Original Credit Agreement. To the extent
that the Revolving Committed Amount exceeds the sum of the Primary Revolving
Loan Commitments and the Secondary Revolving Loan Commitments, as such terms are
used in the 1994 Credit Agreement, the Loans hereunder constitute additional
Funded Indebtedness incurred by the Borrower hereunder.
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This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.14 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or after
the Closing Date when it shall have been executed by the Borrower, the Foreign
Borrowers and the Agent, and the Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the signatures of each
Bank, and thereafter this Credit Agreement shall be binding upon and inure to
the benefit of the Borrower, each Credit Party, the Agent and each Bank and
their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC
Obligations or any other amounts payable hereunder or under any of the other
Credit Documents shall remain outstanding, no Letters of Credit shall be
outstanding, all of the Credit Party Obligations have been irrevocably satisfied
in full and all of the Commitments hereunder shall have expired or been
terminated.
11.15 Confidentiality.
The Agent and each Bank (each, a "Lending Party") agrees to keep
confidential any information furnished or made available to it by the Credit
Parties pursuant to this Credit Agreement that is marked confidential; provided
that nothing herein shall prevent any Lending Party from disclosing such
information (a) to any other Lending Party or any Affiliate of any Lending
Party, or any officer, director, employee, agent, or advisor of any Lending
Party or Affiliate of any Lending Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Lending Party other than as a result of a disclosure by
any Lending Party prohibited by this Credit Agreement, (g) in connection with
any litigation to which such Lending Party or any of its Affiliates may be a
party, (h) to the extent necessary in connection with the exercise of any remedy
under this Credit Agreement or any other Credit Document, and (i) subject to
provisions substantially similar to those contained in this Section 11.15, to
any actual or proposed participant or assignee.
11.16 Source of Funds.
Each of the Banks hereby represents and warrants to the Borrower that at
least one of the following statements is an accurate representation as to the
source of funds to be used by such Bank in connection with the financing
hereunder:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Bank in which any employee benefit
plan (or its related trust) has any interest;
102
108
(b) to the extent that any part of such funds constitutes assets
allocated to any separate account maintained by such Bank, such Bank has
disclosed to the Borrower the name of each employee benefit plan whose
assets in such account exceed 10% of the total assets of such account as
of the date of such purchase (and, for purposes of this subsection (b),
all employee benefit plans maintained by the same employer or employee
organization are deemed to be a single plan);
(c) to the extent that any part of such funds constitutes assets of
an insurance company's general account, such insurance company has
complied with all of the requirements of the regulations issued under
Section 401(c)(1)(A) of ERISA; or
(d) such funds constitute assets of one or more specific benefit
plans which such Bank has identified in writing to the Borrower.
As used in this Section 11.16, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section 3
of ERISA.
11.17 Judgment Currency.
(i) The Borrower's and each Foreign Borrower's obligations hereunder to
make payments in Dollars or in any Available Foreign Currency (the "Obligation
Currency") shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency other than
the Obligation Currency, except to the extent that such tender or recovery
results in the effective receipt by the Agent or a Bank of the full amount of
the Obligation Currency expressed to be payable to the Agent or such Bank under
this Credit Agreement. If, for the purpose of obtaining or enforcing judgment
against any Credit Party in any court or in any jurisdiction, it becomes
necessary to convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the conversion shall be
made, at the Dollar Equivalent or the Foreign Currency Equivalent, as
applicable, determined in each case as of the Business Day immediately preceding
the day on which the judgment is given (such Business Day being hereinafter
referred to as the "Judgment Currency Conversion Date").
(ii) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, such amount payable by the Borrower shall be reduced or increased, as
applicable, such that the amount paid in the Judgment Currency, when converted
at the rate of exchange prevailing on the date of payment, will produce the
amount of the Obligation Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial award at the
rate of exchange prevailing on the Judgment Currency Conversion Date.
11.18 Conflict.
To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any other Credit
Document, on the other hand, this Credit Agreement shall control.
103
109
[Signature Pages to Follow]
104
110
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: WESTPOINT XXXXXXX INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------------------
Title: Executive Vice President - Finance and
--------------------------------------------
Chief Financial Officer
FOREIGN BORROWERS: WESTPOINT XXXXXXX (UK) LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------------------
Title: Director, Vice President & Treasurer
--------------------------------------------
WESTPOINT XXXXXXX (EUROPE) LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------------------
Title: Director, Vice President & Treasurer
--------------------------------------------
BANKS: NATIONSBANK, N. A.,
individually in its capacity as a
Bank, as the Issuing Lender, and the Swingline
Lender and in its capacity as Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
111
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: WESTPOINT XXXXXXX INC.
a Delaware corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
FOREIGN BORROWERS: WESTPOINT XXXXXXX (UK) LIMITED
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
WESTPOINT XXXXXXX (EUROPE) LIMITED
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
BANKS: NATIONSBANK, N. A.,
individually in its capacity as a
Bank, as the Issuing Lender, and the Swingline
Lender and in its capacity as Agent
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Name: XXXXX X. XXXXXXX
---------------------------------------------
Title: Vice President
--------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
112
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Credit Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: WESTPOINT XXXXXXX INC.
a Delaware corporation
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
FOREIGN BORROWERS: WESTPOINT XXXXXXX (UK) LIMITED
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
WESTPOINT XXXXXXX (EUROPE) LIMITED
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
BANKS: NATIONSBANK, N. A.,
individually in its capacity as a
Bank, as the Issuing Lender, and the Swingline
Lender and in its capacity as Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxx Coniwell
-----------------------------------------------
Name:
---------------------------------------------
Title: Vice President
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
000
XXX XXXX XX XXX XXXX
By: /s/ X X Xxxxx
-----------------------------------------------
Name: XXXXXX X. XXXXX
---------------------------------------------
Title: Vice President
--------------------------------------------
SCOTIABANC INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
WACHOVIA BANK, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SOCIETE GENERALE
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ABN AMRO BANK, N.V., Atlanta Agency
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SUNTRUST BANK, ATLANTA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
000
XXX XXXX XX XXX XXXX
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
---------------------------------------------
Title: Senior Relationship Manager
--------------------------------------------
WACHOVIA BANK, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SOCIETE GENERALE
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ABN AMRO BANK, N.V., Atlanta Agency
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SUNTRUST BANK, ATLANTA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
000
XXX XXXX XX XXX XXXX
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SCOTIABANC INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
----------------------------------------------
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
---------------------------------------------
Title: Vice President
--------------------------------------------
SOCIETE GENERALE
By: /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
---------------------------------------------
Title: Vice President, Southwest Operations Manager
--------------------------------------------
ABN AMRO BANK, N.V., Atlanta Agency
By: /s/ G. Xxxx Xxxxx, Xx. /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: G. Xxxx Xxxxx, Xx. Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President Vice President
--------------------------------------------
SUNTRUST BANK, ATLANTA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
000
XXX XXXX XX XXX XXXX
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SCOTIABANC INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
WACHOVIA BANK, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SOCIETE GENERALE
By: /s/ Xxxxx Xxxxx
-----------------------------------------------
Name: Xxxxx Xxxxx
---------------------------------------------
Title: Vice President Southwest Operations Manager
--------------------------------------------
ABN AMRO BANK, N.V., Atlanta Agency
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SUNTRUST BANK, ATLANTA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
000
XXX XXXX XX XXX XXXX
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SCOTIABANC INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
WACHOVIA BANK, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SOCIETE GENERALE
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ABN AMRO BANK, N.V.
By: /s/ G. Xxxx Xxxxx Xx. /s/ Xxxxx X. Xxxxx
-----------------------------------------------
Name: G. Xxxx Xxxxx Xx. Xxxxx X. Xxxxx
---------------------------------------------
Title: Vice President Vice President
--------------------------------------------
SUNTRUST BANK, ATLANTA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
000
XXX XXXX XX XXX XXXX
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SCOTIABANC INC.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
WACHOVIA BANK, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SOCIETE GENERALE
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ABN AMRO BANK, N.V., Atlanta Agency
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx Xxxx /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxx Xxxx Xxxxx X. Xxxxxx
---------------------------------------------
Title: SVP Group Vice President
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
119
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxx
-----------------------------------------------
Name: Xxxxx Xxxx
---------------------------------------------
Title: Senior Vice President
--------------------------------------------
FLEET BANK, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
AMSOUTH BANK OF ALABAMA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
120
FIRST UNION NATIONAL BANK
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
FLEET BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------------
Title: Senior Vice President
--------------------------------------------
AMSOUTH BANK OF ALABAMA
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
121
FIRST UNION NATIONAL BANK
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
FLEET BANK, N.A.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
AMSOUTH BANK
By: /s/ Xxxx Xxxx
-----------------------------------------------
Name: Xxxx Xxxx
---------------------------------------------
Title: Vice President
--------------------------------------------
[signatures continued]
Westpoint Xxxxxxx Inc.
Credit Agreement
122
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
"Rabobank Nederland" New York Branch
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------------
Title: Senior Vice President
--------------------------------------------
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------------
Name: XXXX X. XXXXXXXX
---------------------------------------------
Title: Vice President
--------------------------------------------
WestPoint Xxxxxxx Inc.
Credit Agreement
123
Exhibit 2.1(b)(i)
FORM OF NOTICE OF BORROWING
NationsBank, N. A.,
as Agent for the Banks
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, WESTPOINT XXXXXXX INC. (the "Borrower"), refers to the
Second Amended and Restated Credit Agreement dated as of June 9, 1998 (as
amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), among inter alia the Borrower, the Banks and NationsBank, N. A., as
Agent. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives notice pursuant to Section 2.1, [2.3], [2.5] of the Credit Agreement that
it requests a Revolving Loan [Foreign Currency Loan] [Swingline Loan] advance
under the Credit Agreement, and in connection therewith sets forth below the
terms on which such Loan advance is requested to be made:
(A) Date of Borrowing (which is a Business Day) _______________________
(B) Dollar Amount of Principal Amount of Borrowing _______________________
(C) Interest rate basis _______________________**
(D) Interest Period(s) and the last day thereof _______________________
[(E) Applicable Foreign Currency _______________________]*
[(F)] Estimated Foreign Equivalent _______________________]*
[(G)] Applicable Borrower _______________________]*
[*For Foreign Currency Loans]
[**For Swingline Loans, only Base Rate Loans are available.]
1
124
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c), (d), (e) and (f) of such Section, are true and
correct.
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
Title: _______________________
2
125
Exhibit 2.1(e)
FORM OF REVOLVING NOTE
[DATE]
FOR VALUE RECEIVED, WESTPOINT XXXXXXX INC., a Delaware corporation (the
"Borrower"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "Bank"), at the office of NationsBank, N. A., as
Agent (the "Agent"), at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx Center,
NC1-001-15-04, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places
as the holder hereof may designate), at the times set forth in the Second
Amended and Restated Credit Agreement dated as of the date hereof among inter
alia the Borrower, the Banks and the Agent (as it may be as amended, modified,
restated or supplemented from time to time, the "Credit Agreement"; all
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Credit Agreement), but in no event later than the Maturity Date in
immediately available funds as provided in the Credit Agreement, the principal
amount of:
(i) in the case of Revolving Loans, such Bank's Revolving Commitment
Percentage of the Revolving Committed Amount or, if less, the aggregate
unpaid principal amount of all Revolving Loans made by such Bank to the
Borrower;
(ii) in the case of Competitive Loans, the aggregate principal
amount of all Competitive Loans made by such Bank to the Borrower; and
(iii) in the case of Foreign Currency Loans, such Bank's Revolving
Commitment Percentage of the Foreign Currency Committed Amount or, if
less, the aggregate unpaid principal amount of all Foreign Currency Loans
made by such Bank to the Borrower;
together with interest thereon at the rates and as provided in the Credit
Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information or attach such schedule shall not affect
the obligation of the Borrower to pay amounts evidenced hereby and arising under
the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Bank shall become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
3
126
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorneys' fees.
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained by or on
behalf of the Borrower as provided in Section 11.3(c) of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
Title: _______________________
2
127
EXHIBIT 2.2(b)-1
FORM OF COMPETITIVE BID REQUEST
NationsBank, N.A.,
as Agent for the Banks
000 X. Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Ladies and Gentlemen:
Reference is made to that Second Amended and Restated Credit Agreement
dated as of June 9, 1998 (as amended and modified, the "Credit Agreement"),
among inter alia WESTPOINT XXXXXXX INC., a Delaware corporation (the
"Borrower"), the Banks identified therein and NationsBank, N.A., as Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives notice pursuant to Section 2.2(a) of the Credit Agreement it requests
solicitation of Competitive Bids under the Credit Agreement, and in connection
herewith sets forth below the terms on which the related Competitive Loan
borrowing is requested to be made:
(A) Date of Competitive Loan borrowing
(which is a Business Day) __________________
(B) Principal amount of
Competitive Loan borrowing __________________
(C) Duration of Interest Period Requested
and last day thereof __________________
In accordance with the requirements of Section 5.2 of the Credit
Agreement, the Borrower hereby reaffirms the representations and warranties set
forth in the Credit Agreement as provided in subsection (b) of such Section and
confirms that the matters referenced in subsections (c), (d), (e) and (f) of
such Section are true and correct.
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
Title: _______________________
5
128
EXHIBIT 2.2(b)-2
FORM OF NOTICE OF RECEIPT OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention:
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement
dated as of June 9, 1998 (as amended and modified, the "Credit Agreement"),
among inter alia WESTPOINT XXXXXXX INC.., a Delaware corporation (the
"Borrower"), the Banks, and NationsBank, N.A., as Agent. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The Borrower has made a Competitive Bid Request
under the Credit Agreement on _____________, 19__, pursuant to Section 2.2(b) of
the Credit Agreement, and in that connection you are invited to submit a
Competitive Bid by 10:00 A.M. (Charlotte, North Carolina time) ______________,
19__ [date of proposed Competitive Loan borrowing]. Your Competitive Bid must
comply with Section 2.2(c) of the Credit Agreement and the terms set forth below
on which the Competitive Bid Request was made:
(A) Date of Competitive Loan Borrowing __________________
(B) Principal amount of
Competitive Borrowing __________________
(C) Duration of Interest Period Requested
and last day thereof __________________
NATIONSBANK, N.A., as Agent
By: __________________________
Name: ________________________
Title: _______________________
6
129
Exhibit 2.2(c)
FORM OF COMPETITIVE BID
NationsBank, N.A.,
as Agent for the Banks
000 X. Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, [Name of Bank], refers to the Second Amended and Restated
Credit Agreement dated as of [DATE] (as amended, modified, extended or restated
from time to time, the "Credit Agreement"), among inter alia WESTPOINT XXXXXXX
INC. (the "Borrower"), the Banks and NationsBank, N.A., as Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The undersigned hereby makes a
Competitive Bid pursuant to Section 2.2(c) of the Credit Agreement, in response
to the Competitive Bid Request made by the Borrower on ________________, 19__,
and in that connection sets forth below the terms on which such Competitive Bid
is made:
(A) Principal Amount ____________________
(B) Competitive Bid Rate ____________________
(C) Interest Period and last day thereof ____________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.2(e) of
the Credit Agreement.
[NAME OF BANK]
By: __________________________
Name: ________________________
Title: _______________________
7
130
Exhibit 2.2(e)
FORM OF COMPETITIVE BID ACCEPT/REJECT LETTER
NationsBank, N.A.,
as Agent for the Banks
000 X. Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Agency Services
Ladies and Gentlemen:
The undersigned, WESTPOINT XXXXXXX INC. (the "Borrower"), refers to the
Second Amended and Restated Credit Agreement dated as of [DATE] (as amended,
modified, extended or restated from time to time, the "Credit Agreement"), among
inter alia the Borrower, the Banks and NationsBank, N.A., as Agent.
In accordance with Section 2.2(e) of the Credit Agreement, in connection
with our Competitive Bid Request dated ______________ and in accordance with
Section 2.2(e) of the Credit Agreement, we hereby accept the following bids for
maturity on [date]:
Principal Amount Competitive Bid Rate Bank
---------------- -------------------- ----
$ [%]
$ [%]
We hereby reject the following bids:
Principal Amount Competitive Bid Rate Bank
---------------- -------------------- ----
$ [%]
$ [%]
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
131
Exhibit 2.3(e)
FORM OF FOREIGN CURRENCY NOTE
[DATE]
FOR VALUE RECEIVED, WESTPOINT XXXXXXX (UK) LIMITED, a limited liability
company incorporated in England (the "Foreign Borrower"), hereby promises to pay
to the order of __________________________, its successors and assigns (the
"Bank"), at the office of NationsBank, N. A., as Agent (the "Agent"), at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx Center, NC1-001-15-04, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (or at such other place or places as the holder hereof may
designate), at the times set forth in the Second Amended and Restated Credit
Agreement dated as of the date hereof among inter alia WestPoint Xxxxxxx Inc.,
the Foreign Borrower, the Banks and the Agent (as it may be as amended,
modified, restated or supplemented from time to time, the "Credit Agreement";
all capitalized terms not otherwise defined herein shall have the meanings set
forth in the Credit Agreement), but in no event later than the Maturity Date in
immediately available funds as provided in the Credit Agreement, the principal
amount of such Bank's Revolving Commitment Percentage of the Foreign Currency
Committed Amount or, if less, the aggregate unpaid principal amount of all
Foreign Currency Loans made by such Bank to the Foreign Borrower, together with
interest thereon at the rates and as provided in the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information or attach such schedule shall not affect
the obligation of the Foreign Borrower to pay amounts evidenced hereby and
arising under the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Foreign Borrower to the Bank shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Foreign Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Foreign Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorneys' fees.
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained as
provided in Section 11.3(c) of the Credit Agreement.
132
IN WITNESS WHEREOF, the Foreign Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
WESTPOINT XXXXXXX (UK) LIMITED
By: __________________________
Name: ________________________
133
EXHIBIT 2.3(e)
FORM OF FOREIGN CURRENCY NOTE
[DATE]
FOR VALUE RECEIVED, WESTPOINT XXXXXXX (EUROPE) LIMITED, a limited
liability company incorporated in England (the "Foreign Borrower"), hereby
promises to pay to the order of __________________________, its successors and
assigns (the "Bank"), at the office of NationsBank, N. A., as Agent (the
"Agent"), at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx Center, NC1-001-15-04,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places as the holder
hereof may designate), at the times set forth in the Second Amended and Restated
Credit Agreement dated as of the date hereof among inter alia WestPoint Xxxxxxx
Inc., the Foreign Borrower, the Banks and the Agent (as it may be as amended,
modified, restated or supplemented from time to time, the "Credit Agreement";
all capitalized terms not otherwise defined herein shall have the meanings set
forth in the Credit Agreement), but in no event later than the Maturity Date in
immediately available funds as provided in the Credit Agreement, the principal
amount of such Bank's Revolving Commitment Percentage of the Foreign Currency
Committed Amount or, if less, the aggregate unpaid principal amount of all
Foreign Currency Loans made by such Bank to the Foreign Borrower, together with
interest thereon at the rates and as provided in the Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information or attach such schedule shall not affect
the obligation of the Foreign Borrower to pay amounts evidenced hereby and
arising under the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Foreign Borrower to the Bank shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Foreign Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Foreign Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorneys' fees.
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained as
provided in Section 11.3(c) of the Credit Agreement.
134
IN WITNESS WHEREOF, the Foreign Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
WESTPOINT XXXXXXX (EUROPE) LIMITED
By: __________________________
Name: ________________________
Title: _______________________
135
Exhibit 2.5(d)
FORM OF SWINGLINE NOTE
$25,000,000 [DATE]
FOR VALUE RECEIVED, WESTPOINT XXXXXXX INC., a Delaware corporation
(the "Borrower"), hereby promises to pay to the order of NATIONSBANK, N.A., its
successors and assigns (the "Swingline Lender"), at the office of NationsBank,
N.A., as Agent (the "Agent"), at 000 X. Xxxxx Xxxxxx, Xxxxxxxxxxxx Center,
NC1-001-15-04, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places
as the holder hereof may designate), at the times set forth in the Second
Amended and Restated Credit Agreement dated as of the date hereof among inter
alia the Borrower, the Swingline Lender, the Banks and the Agent (as it may be
amended, modified, extended or restated from time to time, the "Credit
Agreement"; all capitalized terms not otherwise defined herein shall have the
meanings set forth in the Credit Agreement), but in no event later than the
Maturity Date, in Dollars and in immediately available funds, the principal
amount of TWENTY FIVE MILLION DOLLARS ($25,000,000) or, if less than such
principal amount, the aggregate unpaid principal amount of all Swingline Loans
made by the Swingline Lender to the Borrower pursuant to the Credit Agreement,
and to pay interest from the date hereof on the unpaid principal amount hereof,
in like money, at said office, on the dates and at the rates selected in
accordance with Section 2.5(c) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default, the
balance outstanding hereunder shall bear interest as provided in Section 3.1 of
the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Swingline Lender shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorneys' fees.
All borrowings evidenced by this Note and all payments and prepayments of
the principal hereof and interest hereon and the respective dates thereof shall
be endorsed by the holder hereof on Schedule A attached hereto and incorporated
herein by reference, or on a continuation thereof which shall be attached hereto
and made a part hereof; provided, however, that any failure to endorse such
information on such schedule or continuation thereof shall not in any manner
affect the obligation of the Borrower to make payments of principal and interest
in accordance with the terms of this Note.
136
This Note and the Loans evidenced hereby may be transferred in whole or in
part only by registration of such transfer on the Register maintained by or on
behalf of the Borrower as provided in Section 11.3(c) of the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
Title: _______________________
137
SCHEDULE A TO THE
SWINGLINE NOTE
OF WESTPOINT XXXXXXX INC. IN FAVOR OF
NATIONSBANK, N.A.
DATED [DATE]
Unpaid Name of
Type Principal Person
of Interest Payments Balance Making
Date Loan Period Principal Interest of Note Notation
---- ---- ------ --------- -------- ------- --------
138
Exhibit 3.2
FORM OF NOTICE OF EXTENSION/CONVERSION
NationsBank, N. A.,
as Agent for the Banks
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, WESTPOINT XXXXXXX INC. (the "Borrower"), refers to the
Second Amended and Restated Credit Agreement dated as of June 9, 1998 (as
amended, modified, restated or supplemented from time to time, the "Credit
Agreement"), among inter alia the Borrower, the Banks and NationsBank, N. A., as
Agent. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives notice pursuant to Section 3.2 of the Credit Agreement that it [a Foreign
Borrower] requests an extension or conversion of a [Revolving Loan][Foreign
Currency Loan] outstanding under the Credit Agreement, and in connection
therewith sets forth below the terms on which such extension or conversion is
requested to be made:
(A) Loan Type _______________________
(B) Date of Extension or Conversion
(which is the last day of the
the applicable Interest Period) _______________________
(C) Principal Amount of Extension or Conversion _______________________
(D) Interest rate basis _______________________
(E) Interest Period and the last day thereof _______________________
[(F) Estimated Foreign Currency Equivalent of
Extension or Conversion _______________________]*
[(G) Applicable Foreign Currency of Extended or
Converted Loan _______________________]*
[*For Foreign Currency Loans]
139
In accordance with the requirements of Section 5.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c), (d), (e) and (f) of such Section, are true and
correct.
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
Title: _______________________
140
Exhibit 7.1(c)
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
For the fiscal quarter ended _________________, 19___.
I, ______________________, [Title] of WESTPOINT XXXXXXX INC. (the
"Borrower") hereby certify that, to the best of my knowledge and belief, with
respect to that certain Second Amended and Restated Credit Agreement dated as of
[DATE] (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"; all of the defined terms in the Credit Agreement are
incorporated herein by reference) among the Borrower, the Banks and NationsBank,
N. A., as Agent:
a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and have
been prepared in accordance with GAAP applied on a consistent basis,
subject to changes resulting from normal year-end audit adjustments.
b. Since ___________ (the date of the last similar certification, or,
if none, the Closing Date) no Default or Event of Default has
occurred under the Credit Agreement; and
Delivered herewith are detailed calculations demonstrating compliance by
the Credit Parties with the financial covenants contained in Section 7.11 of the
Credit Agreement as of the end of the fiscal period referred to above.
This ______ day of ___________, 19__.
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
Title: _______________________
141
Exhibit 7.12
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (the "Agreement"), dated as of this ____ day of
________ by and between [Name of new subsidiary], a corporation organized and
existing under the laws of _______________ (the "Subsidiary"), and NATIONSBANK,
N.A., formerly known as NationsBank of North Carolina, N.A., in its capacity as
trustee (the "Trustee") under that certain Second Amended and Restated
Collateral Trust Agreement (as it may be amended, modified, extended or restated
from time to time, the "Collateral Trust Agreement"), dated as of June 9, 1998,
by and among inter alia WestPoint Xxxxxxx Inc. (the "Borrower"), each of the
subsidiaries of the Borrower listed on the signature pages thereto, the Trustee,
and the Banks. All of the defined terms in the Collateral Trust Agreement are
incorporated herein by reference.
The Subsidiary is an Additional Grantor, and, consequently, the Borrower
is required by Section 2.2 of the Collateral Trust Agreement to cause the
Subsidiary to become a party to the Collateral Trust Agreement as a Grantor, to
guaranty the Secured Debt on terms substantially similar to those set forth in
the Restated Guaranties, and by becoming a party to the Collateral Trust
Agreement as a Grantor, grant to the Trustee for itself and for the benefit of
the Secured Parties a continuing security interest in all Grantor Collateral
which it now owns or hereafter acquires.
Accordingly, the Subsidiary hereby agrees as follows with the Trustee, for
the benefit of the Secured Parties:
1. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Collateral Trust Agreement and a "Grantor" for all purposes of the Collateral
Trust Agreement, and shall have all of the obligations of a Grantor thereunder
as if it had executed the Collateral Trust Agreement. The Subsidiary hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Collateral Trust Agreement, including
without limitation (i) all of the representations and warranties of the Grantors
set forth therein, (ii) all of the affirmative and negative covenants set forth
therein and (iii) all of the other undertakings and waivers by Grantors set
forth therein.
2. Without limiting the generality of the foregoing section 1, as
collateral security for the prompt and complete payment and performance when due
of all of the Secured Debt, the Subsidiary does hereby pledge, assign and
transfer unto the Trustee for itself and for the ratable benefit of the Secured
Parties, and does hereby grant to the Trustee for itself and the ratable benefit
of the Secured Parties, a continuing security interest of first priority, in all
of the right, title and interest of the Subsidiary in the Grantor Collateral,
subject as to priority only to Liens permitted by the Restated Credit Agreement
which, pursuant to applicable law, are prior in right to the Lien granted
hereby. The Subsidiary has executed contemporaneously herewith a Subsidiary
Guaranty in favor of the Trustee for the benefit of the Banks.
142
3. The Subsidiary hereby represents and warrants to the Agent that:
(i) The Subsidiary's chief executive office and chief place of
business are (and for the prior four months have been) located at the
locations set forth on Schedule 1 attached hereto and the Subsidiary keeps
its books and records at such locations.
(ii) The type of Collateral owned by the Subsidiary and the location
of all Collateral owned by the Subsidiary is as shown on Schedule 2
attached hereto.
(iii) The Subsidiary's legal name is as shown in this Agreement and
the Subsidiary has not in the past four months changed its name, been
party to a merger, consolidation or other change in structure or used any
tradename except as set forth in Schedule 3 attached hereto.
(iv) The patents and trademarks listed on Schedule 4 attached hereto
constitute all of the registrations and applications for the patents and
trademarks owned by the Subsidiary.
4. The Subsidiary hereby acknowledges, agrees and confirms that, by its
execution of this Agreement, the Subsidiary will be deemed to be a party to the
Pledge Agreement executed by the Borrower, and shall have all the obligations of
a "Pledgor" thereunder as if it had executed the Pledge Agreement. The
Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by,
all the terms, provisions and conditions contained in the Pledge Agreement.
Without limiting the generality of the foregoing terms of this paragraph 4, the
Subsidiary hereby pledges and assigns to the Agent, for the benefit of the
Banks, and grants to the Agent, for the benefit of the Banks, a continuing
security interest in any and all right, title and interest of the Subsidiary in
and to Pledged Shares (as such term is defined in Section 2 of the Pledge
Agreement) listed on Schedule 5 attached hereto and the other Pledged Collateral
(as such term is defined in Section 2 of the Pledge Agreement).
5. The address of the Subsidiary for purposes of all notices and other
communications is ____________________, ____________________________, Attention
of ______________ (Facsimile No. ____________).
6. The Subsidiary hereby waives acceptance by the Agent and the Banks of
the guaranty by the Subsidiary upon the execution of this Agreement by the
Subsidiary.
7. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract.
8. This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
143
IN WITNESS WHEREOF, the Subsidiary has caused this Joinder Agreement to be
duly executed by its authorized officers, and the Agent, for the benefit of the
Banks, has caused the same to be accepted by its authorized officer, as of the
day and year first above written.
[SUBSIDIARY]
By: __________________________
Name: ________________________
Title: _______________________
Acknowledged and accepted:
NATIONSBANK, N. A., as Agent
By: __________________________
Name: ________________________
Title: _______________________
144
Exhibit 11.3(b)
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Agreement
dated as of [DATE], as amended and modified from time to time thereafter (the
"Credit Agreement") among inter alia WESTPOINT XXXXXXX INC., the Banks party
thereto and NationsBank, N.A., as Agent. Terms defined in the Credit Agreement
are used herein with the same meanings.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse
and without representation or warranty except as expressly set forth herein, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement and the
other Credit Documents as of the date hereof equal to the percentage interest
specified on Schedule 1 of all outstanding rights and obligations under the
Credit Agreement and the other Credit Documents. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of the Loans owing
to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Credit Documents or any other instrument or document furnished
pursuant thereto; and (iv) attaches the Notes held by the Assignor and requests
that the Agent exchange such Notes for new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and to the Assignor in an amount equal to the Commitment retained by the
Assignor, if any, as specified on Schedule 1.
145
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 7.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Bank; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under Section 3.11.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on Schedule 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
146
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date hereof.
____________________, as Assignor
By: __________________________
Name: ________________________
Title: _______________________
_____________________, as Assignee
By: __________________________
Name: ________________________
Title: _______________________
Notice address of Assignee:
[Assignee]
______________________________
______________________________
Attn: ________________________
Telephone: (___) __________
Telecopy: (___) __________
CONSENTED TO:
NATIONSBANK, N.A., *
as Agent
By: __________________________
Name: ________________________
Title: _______________________
WESTPOINT XXXXXXX INC.
By: __________________________
Name: ________________________
Title: _______________________
----------
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee."
147
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
(a) Date of Assignment:
(b) Legal Name of Assignor:
(c) Legal Name of Assignee:
(d) Effective Date of Assignment* :
(e) Revolving Commitment Percentage Assigned
(expressed as a percentage set forth to at least 8 decimals) %
(f) Revolving Commitment Percentage of Assignee after
giving effect to this Assignment and Acceptance as of
the Effective Date (set forth to at least 8 decimals) %
(g) Revolving Commitment Percentage of Assignor after
giving effect to this Assignment and Acceptance as of
the Effective Date (set forth to at least 8 decimals) %
(h) Revolving Committed Amount as of Effective Date $___________
(i) Dollar Amount of Assignor's Revolving Commitment
Percentage as of the Effective Date (the amount set
forth in (h) multiplied by the percentage set forth in (g)) $___________
(j) Dollar Amount of Assignee's Revolving Commitment
Percentage as of the Effective Date (the amount set
forth in (h) multiplied by the percentage set forth in (f)) $___________
----------
* This date should be no earlier than five Business Days after delivery of this
Assignment and Acceptance to the Agent.
