AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
Dated as of August 18, 1997
By And Among
XXXXXX SUPPLY, INC.
AND
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Agent,
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
NATIONSBANK, N.A.,
FIRST UNION NATIONAL BANK
XXXXXXX BANK, N.A., and
PNC BANK, KENTUCKY, INC.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION 2
Section 1.01. Definitions 2
Section 1.02. Accounting Terms and Determination 18
Section 1.03. Other Definitional Terms 18
Section 1.04. Exhibits and Schedules 18
ARTICLE II REVOLVING LOANS 18
Section 2.01. Commitment; Use of Proceeds 18
Section 2.02. Notes; Repayment of Principal 19
Section 2.03. Voluntary Reduction of Revolving Loan 19
ARTICLE III LINE OF CREDIT LOANS; TERM LOANS 19
Section 3.01. Line of Credit Commitment; Use of Proceeds 19
Section 3.02. Notes; Repayment Principal 21
Section 3.03. Voluntary Reduction of Loan Commitments 21
Section 3.04. Term Loans 21
Section 3.05. Repayment of Principal of Term Loans 22
ARTICLE IV GENERAL LOAN TERMS 22
Section 4.01. Funding Notices 22
Section 4.02. Disbursement of Funds 24
Section 4.03. Interest 25
Section 4.04. Interest Periods 27
Section 4.05. Fees 27
Section 4.06. Voluntary Prepayments of Borrowings 28
Section 4.07. Payments, etc. 29
Section 4.08. Interest Rate Not Ascertainable, etc. 30
Section 4.09. Illegality 31
Section 4.10. Increased Costs 31
Section 4.11. Lending Offices 33
Section 4.12. Funding Losses 33
Section 4.13. Assumptions Concerning Funding of Eurodollar
Advances 33
Section 4.14. Apportionment of Payments 34
Section 4.15. Sharing of Payments, Etc. 34
Section 4.16. Capital Adequacy 34
Section 4.17. Benefits to Guarantors 35
Section 4.18. Limitation on Certain Payment Obligations 35
ARTICLE V CONDITIONS TO BORROWINGS 35
Section 5.01. Conditions Precedent to Initial Loans 36
Section 5.02. Conditions to All Loans 38
ARTICLE VI REPRESENTATIONS AND WARRANTIES 39
Section 6.01. Organization and Qualification 39
Section 6.02. Corporate Authority 39
Section 6.03. Financial Statements 39
Section 6.04. Tax Returns 40
Section 6.05. Actions Pending 40
Section 6.06. Representations; No Defaults 40
Section 6.07. Title to Properties 40
Section 6.08. Enforceability of Agreement 41
Section 6.09. Consent 41
Section 6.10. Use of Proceeds; Federal Reserve Regulations 41
Section 6.11. ERISA 41
Section 6.12. Subsidiaries 42
Section 6.13. Outstanding Indebtedness 42
Section 6.14. Conflicting Agreements 42
Section 6.15. Pollution and Other Regulations 43
Section 6.16. Possession of Franchises, Licenses, Etc. 44
Section 6.17. Patents, Etc. 44
Section 6.18. Governmental Consent 44
Section 6.19. Disclosure 44
Section 6.20. Insurance Coverage 45
Section 6.21. Labor Matters 45
Section 6.22. Intercompany Loans; Dividends 45
Section 6.23. Burdensome Restrictions 45
ARTICLE VII AFFIRMATIVE COVENANTS 45
Section 7.01. Corporate Existence, Etc. 46
Section 7.02. Compliance with Laws, Etc. 46
Section 7.03. Payment of Taxes and Claims, Etc. 46
Section 7.04. Keeping of Books 46
Section 7.05. Visitation, Inspection, Etc. 46
Section 7.06. Insurance; Maintenance of Properties 46
Section 7.07. Reporting Covenants 47
Section 7.08. Financial Covenants 50
Section 7.09. Notices Under Certain Other Indebtedness 51
Section 7.10. Additional Guarantors 51
Section 7.11. Financial Statements; Fiscal Year 51
Section 7.12. Ownership of Guarantors 51
ARTICLE VIII NEGATIVE COVENANTS 52
Section 8.01. Indebtedness 52
Section 8.02. Liens 53
Section 8.03. Mergers, Acquisitions, Sales, Etc. 53
Section 8.04. Investments, Loans, Etc. 54
Section 8.05. Sale and Leaseback Transactions 55
Section 8.06. Transactions with Affiliates 55
Section 8.07. Optional Prepayments 55
Section 8.08. Changes in Business 56
Section 8.09. ERISA 56
Section 8.10. Additional Negative Pledges 56
Section 8.11. Limitation on Payment Restrictions
Affecting Consolidated Companies 56
Section 8.12. Actions Under Certain Documents 56
ARTICLE IX EVENTS OF DEFAULT 57
Section 9.01. Payments 57
Section 9.02. Covenants Without Notice 57
Section 9.03. Other Covenants 57
Section 9.04. Representations 57
Section 9.05. Non-Payments of Other Indebtedness 57
Section 9.06. Defaults Under Other Agreements 57
Section 9.07. Bankruptcy 58
Section 9.08. ERISA 58
Section 9.09. Money Judgment 59
Section 9.10. Ownership of Credit Parties and Pledged Entities 59
Section 9.11. Change in Control of Borrower 59
Section 9.12. Default Under Other Credit Documents 59
Section 9.13. Attachments 59
ARTICLE X THE AGENT 60
Section 10.01. Appointment of Agent 60
Section 10.02. Nature of Duties of Agent 60
Section 10.03. Lack of Reliance on the Agent 61
Section 10.04. Certain Rights of the Agent 61
Section 10.05. Reliance by Agent 61
Section 10.06. Indemnification of Agent 61
Section 10.07. The Agent in its Individual Capacity 62
Section 10.08. Holders of Notes 62
Section 10.09. Successor Agent 62
ARTICLE XI MISCELLANEOUS 63
Section 11.01. Notices 63
Section 11.02. Amendments, Etc. 63
Section 11.03. No Waiver; Remedies Cumulative 64
Section 11.04. Payment of Expenses, Etc. 64
Section 11.05. Right of Setoff 65
Section 11.06. Benefit of Agreement 66
Section 11.07. Governing Law; Submission to Jurisdiction 68
Section 11.08. Independent Nature of Lenders' Rights 69
Section 11.09. Counterparts 69
Section 11.10. Effectiveness; Survival 69
Section 11.11. Severability 70
Section 11.12. Independence of Covenants 70
Section 11.13. Change in Accounting Principle
Fiscal Year or Tax Laws 70
Section 11.14. Headings Descriptive; Entire Agreement 70
Section 11.15. Time is of the Essence 70
Section 11.16. Usury 70
Section 11.17. Construction 71
Section 11.18. Effect of Amendment and Restatement 71
SCHEDULES
Schedule 6.01 Organization and Ownership of
Subsidiaries
Schedule 6.04 Tax Filings and Payments
Schedule 6.05 Certain Pending and Threatened
Litigation
Schedule 6.11 Employee Benefit Matters
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.17 Patent, Trademark, License, and
Other Intellectual Property
Matters
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 6.23 Burdensome Restrictions
Schedule 8.01(b) Existing Indebtedness
Schedule 8.02 Existing Liens
EXHIBITS
Exhibit A Form of Syndicate Revolving Credit Note
Exhibit B Form of Competitive Bid Revolving
Credit Note
Exhibit C Form of Syndicate Line of Credit Note
Exhibit D Form of Competitive Bid Line of
Credit Note
Exhibit E Form of Syndicate Term Note
Exhibit F Form of Competitive Bid Term Note
Exhibit G Form of Subsidiary Guaranty Agreement
Exhibit H Form of Closing Certificate
Exhibit I Form of Assignment and Acceptance
Exhibit J Form of Opinion of Borrower's Counsel
Exhibit K Form of Contribution Agreement
AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AND LINE OF CREDIT
AGREEMENT, dated as of August 18, 1997 (the "Agreement") by and among
XXXXXX SUPPLY, INC. ("Borrower"), a Florida corporation, SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION, ("SunTrust Bank, Central Florida") a
national banking association, SOUTHTRUST BANK, NATIONAL ASSOCIATION, a na
tional banking association, NATIONSBANK, N.A., a national banking
association, FIRST UNION NATIONAL BANK, a national banking association,
XXXXXXX BANK, N.A.,, a national banking association, and PNC BANK,
KENTUCKY, INC., a Kentucky banking corporation, (collectively, the
"Lenders" and, individually, a "Lender"), and SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION as Agent for the Lenders (the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders (other than PNC Bank,
Kentucky, Inc. and Xxxxxxx Bank, N.A.), SunTrust Bank, Atlanta
individually, as Agent and as Administrative Agent, and SunTrust Bank,
Central Florida as the Agent are parties to that certain Amended and
Restated Revolving Credit and Line of Credit Agreement, dated as of October
10, 1996, as heretofore amended or modified (the "Original Credit
Agreement");
WHEREAS, the Borrower, the Lenders, and the Agent desire to amend
the Original Credit Agreement to reflect certain changes requested by the
Borrower and agreed to by the Lenders, to reflect that PNC Bank, Kentucky,
Inc. and Xxxxxxx Bank, N.A. are becoming Lenders and SunTrust Bank, Atlanta
is no longer a Lender, to reflect that the role of Administrative Agent is
being replaced by the role of the Agent and SunTrust Bank, Central Florida
will be the sole Agent, to restate the Original Credit Agreement, as so
amended, in its entirety, in order to remove references to transactions
which have been completed, to set forth in a single agreement all of the
amendments to the Original Credit Agreement (including those effected
hereby), and for convenience of reference;
NOW, THEREFORE, in consideration of the mutual covenants made
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.01. Definitions. As used in this Agreement, and in
any instrument, certificate, document or report delivered pursuant hereto,
the following terms shall have the following meanings (to be equally
applicable to both the singular and plural forms of the term defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest
Period for a Eurodollar Advance, the rate obtained by dividing (A) LIBOR
for such Interest Period by (B) a percentage equal to 1 minus the then
stated maximum rate (stated as a decimal) of all reserves requirements
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable to any member bank of the Federal
Reserve System in respect of Eurodollar liabilities as defined in
Regulation D (or against any successor category of liabilities as defined
in Regulation D).
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time under the Revolving Loans, the Line of Credit
Loans, or the Term Loans which Advance shall be made or outstanding as a
Base Rate Advance or Eurodollar Advance, as the case may be.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of that Person.
"Agent" shall mean SunTrust Bank, Central Florida, a national
banking association, as agent for the Lenders hereunder and under the other
Credit Documents, and each successor Agent.
"Agreement" shall mean this Amended and Restated Revolving Credit
and Line of Credit Agreement, either as originally executed or as it may be
from time to time supplemented, amended, restated, renewed or extended and
in effect.
"Applicable Commitment Fee Percentage" shall mean the percentage
designated below based on Borrower's Senior Funded Debt to Total Capital
ratio for each fiscal quarter-end as indicated below:
Senior Funded Debt to Applicable Commitment Fee
Total Capital Percentage
55% or Greater 0.25%
Less than 55% to 50% 0.25%
Less than 50% to 30% 0.225%
Less than 30% 0.1875%
provided, however, that:
(a) The Applicable Commitment Fee Percentage in effect as
of the date of execution and delivery of this Agreement shall be
0.225% and shall remain in effect until such time as the
Applicable Commitment Fee Percentage may be adjusted as
hereinafter provided; and
(b) So long as no Default or Event of Default has occurred
and is continuing under this Agreement, adjustments, if any, to
the Applicable Commitment Fee Percentage based on changes in the
ratios set forth above shall be made and become effective on the
first day of the second fiscal quarter after such determination.
"Applicable Margin" shall mean the percentage designated below
based on Borrower's Senior Funded Debt to Total Capital ratio for each
fiscal quarter-end as indicated below:
Senior Funded Debt to Applicable Margin
Total Capital
55% or Greater 1.00%
Less than 55% to 50% 0.75%
Less than 50% to 30% 0.50%
Less than 30% 0.375%
provided, however, that:
(a) The Applicable Margin in effect as of the date of
execution and delivery of this Agreement shall be .50% and shall
remain in effect until such time as the Applicable Margin may be
adjusted as hereinafter provided; and
(b) So long as no Default or Event of Default has occurred
and is continuing under this Agreement, adjustments, if any, to
the Applicable Margin based on changes in the ratios set forth
above shall be made and become effective on the first day of the
second fiscal quarter after such determination.
"Asbestos Laws" means the common law in all federal, state and
local and foreign jurisdictions and other laws in such jurisdictions, and
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, now or hereafter in effect
relating to or concerning asbestos or asbestos-containing material,
including without limitation, exposure to asbestos or asbestos-containing
material.
"Asset Value" shall mean, with respect to any property or asset
of any Consolidated Company as of any particular date, an amount equal to
the greater of (i) the then book value of such property or asset as estab
lished in accordance with GAAP, and (ii) the then fair market value of such
property or asset as determined in good faith by the board of directors of
such Consolidated Company.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in accordance
with the terms of this Agreement and substantially in the form of
Exhibit I.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C. 101 et seq.).
"Base Rate" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates), with
respect to the Revolving Loans, Line of Credit Loans and Term Loans, the
higher of (a) the rate which the Agent designates from time to time to be
its prime lending rate, as in effect from time to time, and (b) the Federal
Funds Rate, as in effect from time to time, plus one-half of one percent
(0.50%) per annum. The Agent's prime lending rate is a reference rate and
does not necessarily represent the lowest or best rate charged to
customers; the Agent may make commercial loans or other loans at rates of
interest at, above or below the Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or outstanding as
a Revolving Loan, Line of Credit Loan or Term Loan, as the case may be,
bearing interest based on the Base Rate.
"Base Rate Loan" shall mean any Loan hereunder which bears
interest at the Base Rate.
"Borrowing" shall mean the incurrence by Borrower under any
Facility of Advances of one Type concurrently having the same Interest
Period or the continuation or conversion of an existing Borrowing or
Borrowings in whole or in part.
"Business Day" shall mean, with respect to Eurodollar Loans, any
day other than a day on which commercial banks are closed or required to be
closed for domestic and international business, including dealings in
Dollar deposits on the London interbank market, and with respect to all
other Loans and matters, any day other than Saturday, Sunday and a day on
which commercial banks are required to be closed for business in Atlanta,
Georgia, or Orlando, Florida.
"Capitalized Lease Obligations" shall mean all lease obligations
which have been or are required to be, in accordance with generally
accepted accounting principles, capitalized on the books of the lessee.
"Cash Flow Coverage Ratio" shall mean, as at the end of any
fiscal period of Borrower, the ratio of (A) the sum of Consolidated Net
Income plus, to the extent deducted in determining such Consolidated Net
Income, depreciation expense and amortization expense minus the change in
Working Capital to (B) the sum of Net Capital Expenditures, dividends, and
current maturities of long term debt.
"CERCLA" has the meaning set forth in Section 6.15(a) of this
Agreement.
"Change in Control Provision" shall mean any term or provision
contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Indebtedness of Borrower evidencing debt or a
commitment to extend loans in excess of $5,000,000 which requires, or
permits the holder(s) of such Indebtedness of Borrower to require that such
Indebtedness of Borrower be redeemed, repurchased, defeased, prepaid or
repaid, either in whole or in part, or the maturity of such Indebtedness of
Borrower to be accelerated in any respect, as a result of a change in
ownership of the capital stock of Borrower or voting rights with respect
thereto.
"Closing Date" shall mean the date on or before August 18, 1997,
on which the initial Loans are made and the conditions set forth in Section
5.01 are satisfied or waived in accordance with Section 11.02.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" shall mean, for any Lender at any time, any of its
Revolving Loan Commitment or Line of Credit Commitment, as the case may be.
"Competitive Bid Line of Credit Loan" shall mean a Line of Credit
Loan made by a Lender on a competitive bid basis as provided in Article IV.
"Competitive Bid Line of Credit Note" shall mean a promissory
note evidencing Competitive Bid Line of Credit Loans in the form attached
hereto as Exhibit D.
"Competitive Bid Loans" shall mean, collectively, Competitive Bid
Revolving Loans, Competitive Bid Line of Credit Loans, and Competitive Bid
Term Loans.
"Competitive Bid Rate" shall mean the interest rate charged by a
Lender on a Competitive Bid Line of Credit Loan or a Competitive Bid
Revolving Loan.
"Competitive Bid Revolving Credit Note" shall mean a promissory
note evidencing Competitive Bid Revolving Loans in the form attached hereto
as Exhibit B.
"Competitive Bid Revolving Loan" shall mean a Revolving Loan made
by a Lender on a competitive bid basis as provided in Article IV.
"Competitive Bid Term Loan" shall mean a Term Loan made by a
Lender on a competitive bid basis as provided in Article IV.
"Competitive Bid Term Note" shall mean a promissory note
evidencing Competitive Bid Term Loans in the form attached hereto as
Exhibit F.
"Consolidated Companies" shall mean, collectively, Borrower and
all of its Subsidiaries.
"Consolidated EBITR" shall mean, for any fiscal period of the
Borrower, an amount equal to (A) the sum of its Consolidated Net Income
(Loss), plus, to the extent deducted in determining Consolidated Net Income
(Loss), (i) provisions for taxes based on income, (ii) Consolidated
Interest Expense, and (iii) Consolidated Rental Expense.
"Consolidated Interest Expense" shall mean, for any fiscal period
of Borrower, total interest expense (including without limitation, interest
expense attributable to capitalized leases in accordance with the generally
accepted accounting principles and any program costs incurred by Borrower
in connection with sales of accounts receivable pursuant to a
securitization program) of Borrower and its subsidiaries on a consolidated
basis.
"Consolidated Net Income (Loss)" shall mean, for any fiscal
period of Borrower, the net income (or loss) of Borrower and it
subsidiaries on a consolidated basis for such period (taken as a single
accounting period) determined in conformity with generally accepted
accounting principles; provided that there shall be excluded therefrom (i)
any items of gain or loss which were included in determining such
consolidated net income and were not realized in the ordinary course of
business or the result of a sale of assets other than in the ordinary
course of business; and (ii) the income (or loss) of any party accrued
prior to the date such becomes a subsidiary of Borrower or is merged into
or consolidated with Borrower or any of its subsidiaries, or such party's
assets are required by the Borrower or any of its subsidiaries.
"Consolidated Net Worth" shall mean as of the date of
determination, the Borrower's total shareholder's equity as determined in
accordance with generally accepted accounting principles.
"Consolidated Rental Expense" shall mean for any fiscal period of
Borrower, total operating lease expense of Borrower and its subsidiaries on
a consolidated basis.
"Consolidated Subsidiary" shall mean, as at any particular time,
any corporation included as a consolidated Subsidiary of Borrower in
Borrower's most recent financial statements furnished to its stockholders
and certified by Borrower's independent public accountants, provided that
under then generally accepted accounting principles approved by such
independent public accountants, such corporation may continue to be so
included as a consolidated Subsidiary of Borrower in any financial
statements thereafter certified by such accountants.
"Contractual Obligation" of any Person shall mean any provision
of any security issued by such Person or of any agreement, instrument or
undertaking under which such Person is obligated or by which it or any of
the property owned by it is bound.
"Conversion Date" shall mean, with respect to a Line of Credit
Loan, the date on which such Line of Credit Loan shall come due within the
period (a) 90 days prior to the termination of the Line of Credit
Commitment, and (b) the termination date of the Line of Credit Commitment,
which termination date is initially 364 days after the Closing Date, but
which is subject to extension pursuant to the terms of this Agreement.
Line of Credit Loans shall be paid, renewed or converted to Term Loans on a
Conversion Date.
"Credit Documents" shall mean, collectively, this Agreement, the
Notes, the Guaranty Agreements, and all other Guaranty Documents, if any.
"Credit Parties" shall mean, collectively, each of Borrower, the
Guarantors, and every other Person who from time to time executes a Credit
Document with respect to all or any portion of the Obligations.
"Default" shall mean any condition or event which, with notice or
lapse of time or both, would constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful
money of the United States of America.
"Eligible Assignee" shall mean (i) a commercial bank organized
under the laws of the United States, or any state thereof, having total
assets in excess of $1,000,000,000 or any commercial finance or asset based
lending Affiliate of any such commercial bank and (ii) any Lender or any
Affiliate of any Lender.
"Environmental Laws" shall mean all federal, state, local and
foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing material), relating
to pollution or protection of the environment and relating to public health
and safety, relating to (i) emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial toxic or
hazardous constituents, substances or wastes, including without limitation,
any Hazardous Substance, petroleum including crude oil or any fraction
thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law into the environment (including without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil or any fraction thereof,
any petroleum product or other waste, chemicals or substances regulated by
any Environmental Law, and (iii) underground storage tanks and related
piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation (i) the
Clean Air Act (42 U.S.C. 7401 et seq.), (ii) the Clean Water Act (33
U.S.C. 1251 et seq.), (iii) the Resource Conservation and Recovery Act
(42 U.S.C. 6901 et seq.), (iv) the Toxic Substances Control Act (15
U.S.C. 2601 et seq.) and (v) the Comprehensive Environmental Response
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act (42 U.S.C. 9601 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) which is a member of a
group of which that Person is a member and which is under common control
within the meaning of the regulations promulgated under Section 414 of the
Tax Code.
"Eurodollar Advance" shall mean an Advance made or outstanding as
a Revolving Loan, a Line of Credit Loan, or a Term Loan, as the case may
be, bearing interest based on the Adjusted LIBO Rate.
"Eurodollar Loan" shall mean any Loan hereunder which bears
interest based on the Adjusted LIBO Rate.
"Event of Default" shall have the meaning set forth in Article
IX.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Executive Officer" shall mean with respect to any Person (other
than a Guarantor), the President, Vice Presidents, Chief Financial Officer,
Treasurer, Secretary and any Person holding comparable offices or duties,
and with respect to a Guarantor, the President.
"Extension of Credit" shall mean the making of a Loan or the
conversion of a Loan of one Type into a Loan of another Type.
"Facility" or "Facilities" shall mean the Revolving Loan
Commitments and Revolving Loans, the Line of Credit Commitment and Line of
Credit Loans, or the Term Loans as the context may indicate.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of
Atlanta, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
"Final Maturity Date" shall mean the date on which all
commitments have been terminated and all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
pursuant to the provisions of Article IX.
"Fixed Charge Coverage Ratio" shall mean, as at the end of any
fiscal year period of Borrower, the ratio of (A) Consolidated EBITR to (B)
the sum of (i) Consolidated Interest Expense plus (ii) Consolidated Rental
Expense.
"Funded Debt" shall mean all indebtedness for money borrowed,
purchase money mortgages, capitalized leases, amounts of any outstanding
accounts receivable sold pursuant to a securitization program, conditional
sales contracts and similar retention debt instruments, including any
current maturities of such indebtedness, which by its terms matures more
than one year from the date of any calculation thereof and/or which is
renewable or extendable at the option of the obligor to a date beyond one
year from such date. The calculation of Funded Debt shall include all
Funded Debt of the Borrower and its Subsidiaries, plus all Funded Debt of
other entities or persons, other than Subsidiaries, which has been
guaranteed by the Borrower or any Subsidiary or which is supported by a
letter of credit issued for the account of the Borrower or any Subsidiary.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession, which are applicable to the
circumstances as of the date of determination.
"Guaranteed Indebtedness" shall mean, as to any Person, any
obligation of such Person guaranteeing any indebtedness, lease, dividend,
or other obligation ("primary obligation") of any other Person (the
"primary obligor") in any manner including, without limitation, any
obligation or arrangement of such Person (a) to purchase or repurchase any
such primary obligation, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet condition of the
primary obligor, (c) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation,
or (d) to indemnify the owner of such primary obligation against loss in
respect thereof.
"Guarantors" shall mean, collectively, each Subsidiary of the
Borrower that has executed a Guaranty Agreement as of the Closing Date,
together with all other Material Subsidiaries that hereafter execute a
Guaranty Agreement, and their respective successors and permitted assigns.
"Guaranty Agreements" shall mean, collectively, the Guaranty
Agreement executed by each of the Guarantors in favor of the Lenders and
the Agent, substantially in the form of Exhibit G as the same may be
amended, restated or supplemented from time to time, and the Contribution
Agreement executed by each of the Guarantors, substantially in the form of
Exhibit K as the same may be amended, restated or supplemented from time to
time.
"Guaranty Documents" shall mean, collectively, the Guaranty
Agreements, and each other guaranty agreement, mortgage, deed of trust,
security agreement, pledge agreement, or other security or collateral
document guaranteeing or securing the Obligations, as the same may be
amended, restated, or supplemented from time to time, and the Contribution
Agreements executed by each of the Guarantors, as the same may be amended,
restated or supplemented from time to time.
"Hazardous Materials" shall mean oil, petroleum or chemical
liquids or solids, liquid or gaseous products, asbestos, or any other
hazardous waste or hazardous substances, including, without limitation,
hazardous medical waste or any other substance described in any Hazardous
Materials Law.
"Hazardous Materials Law" shall mean the Comprehensive Envi
ronmental Response Compensation and Liability Act as amended by the Super
Fund Amendments and Reauthorization Act, 42 U.S.C. 9601, the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, the state hazardous waste
laws, as such laws may from time to time be in effect, and related
regulations, and all similar laws and regulations.
"Hazardous Substances" has the meaning assigned to that term in
CERCLA.
"Xxxxxx Family" shall mean (i) Xxxxx X. Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx, (ii) any of their direct family members
(including, without limitation, lineal ancestors and descendants, siblings,
and lineal descendants of siblings), (iii) any trusts and profit sharing
plans and stock option plans established for the sole benefit of the
foregoing, and (iv) the heirs and personal representatives of the
foregoing.
"Indebtedness" of any Person shall mean, without duplication (i)
all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase
price of property or services, and obligations evidenced by bonds,
debentures, notes or other similar instruments); (ii) all rental
obligations under leases required to be capitalized under GAAP; (iii) all
Guaranteed Indebtedness of such Person (including contingent reimbursement
obligations under undrawn letters of credit); (iv) Indebtedness of others
secured by any Lien upon property owned by such Person, whether or not
assumed; and (v) obligations or other liabilities under currency contracts,
interest rate hedging contracts, or similar agreements or combinations
thereof.
"Intercompany Loan Documents" shall mean, collectively, the
promissory notes and all related loan, subordination, and other agreements,
to the extent that they exist, relating in any manner to the Intercompany
Loans.
"Intercompany Loans" shall mean, collectively, (i) the loans more
particularly described on Schedule 6.22 and (ii) those loans or other
extensions of credit made by any Consolidated Company to another
Consolidated Company satisfying the terms and conditions set forth in
Section 8.01 or as may otherwise be approved in writing by the Agent and
the Required Lenders.
"Interest Period" shall mean (i) with respect to Competitive Rate
Loans, such periods agreed upon between Borrower and Lenders, and (ii) with
respect to LIBOR Advances, the period of 1, 2, 3 or 6 months selected by
the Borrower, in case of clause (ii) pursuant to the terms of the credit
facility and subject to customary adjustments in duration; provided, that
(a) the first day of an Interest Period must be a Business Day, (b) any
Interest Period that would otherwise end on a day that is not a Business
Day for Eurodollar Loans shall be extended to the next succeeding Business
Day for Eurodollar Loans, unless such Business Day falls in the next
calendar month, in which case the Interest Period shall end on the next
preceding Business Day for Eurodollar Loans, and (c) Borrower may not elect
an Interest Period for Line of Credit Loans that would extend beyond the
Line of Credit Maturity Date or an Interest Period for Revolving Loans or
Term Loans that would extend beyond the Final Maturity Date.
"Investment" shall mean, when used with respect to any Person,
any direct or indirect advance, loan or other extension of credit (other
than the creation of receivables in the ordinary course of business) or
capital contribution by such Person (by means of transfers of property to
others or payments for property or services for the account or use of
others, or otherwise) to any Person, or any direct or indirect purchase or
other acquisition by such Person of, or of a beneficial interest in,
capital stock, partnership interests, bonds, notes, debentures or other
securities issued by any other Person.
"Lender" or "Lenders" shall mean the banks and lending
institutions listed on the signature pages hereof, and each assignee
thereof, if any, pursuant to Section 11.06.
"Lending Installation" shall mean any office, branch, subsidiary
or affiliate of any Lender.
"Lending Office" shall mean for each Lender the office such
Lender may designate in writing from time to time to Borrower and the Agent
with respect to each Type of Loan.
"Leverage Ratio" shall mean the ratio, expressed as a percentage,
of Senior Funded Debt to Total Capital for the Consolidated Companies.
"LIBOR" shall mean, for any Interest Period, the offered rates
for deposits in U.S. dollars for a period comparable to the Interest Period
appearing on the Reuters Screen LIBOR Page as of 11:00 a.m., London time,
on the day that is two London banking days prior to the first day of the
Interest Period. If at least two such rates appear on the Reuters Screen
LIBOR Page, the rate for that Interest Period will be the arithmetic mean
of such rates, rounded, if necessary, to the next higher 1/16 of 1.0%; and
in either case as such rates may be adjusted for any applicable reserve
requirements. If the foregoing rate is unavailable from the Reuters Screen
for any reason, then such rate shall be determined by the Agent from
Telerate Page 3750 or, if such rate is also unavailable on such service,
then on any other interest rate reporting service of recognized standing
designated in writing by the Agent to Borrower and the Lenders; in any such
case rounded, if necessary, to the next higher 1/16 of 1.0%, if the rate is
not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind or description and shall include,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any capitalized lease
in the nature thereof including any lease or similar arrangement with a
public authority executed in connection with the issuance of industrial
development revenue bonds or pollution control revenue bonds, and the
filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction.
"Line of Credit Commitment" shall mean at any time for any
Lender, the amount of such commitment set forth opposite such Lender's name
on the signature pages hereof or on any assignment hereafter executed by
any assignee of a Lender pursuant to Section 11.06, as the same may be
increased or decreased from time to time as a result of any reduction
thereof pursuant to Section 3.03, any assignment thereof pursuant to
Section 11.06, or any amendment thereof pursuant to Section 11.02.
"Line of Credit Commitment Period" shall have the meaning as
defined in Section 3.01(a).
"Line of Credit Loans" shall mean advances and Loans made under
the Line of Credit Commitment.
"Line of Credit Maturity Date" shall have the meaning as defined
in Section 3.01(a).
"Line of Credit Notes" shall mean, collectively, the Syndicate
Line of Credit Notes and the Competitive Bid Line of Credit Notes.
"Loans" shall mean, collectively, the Revolving Loans, the Line
of Credit Loans and the Term Loans.
"Margin Regulations" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time.
"Materially Adverse Effect" shall mean the occurrence of an
event, which would (i) cause the recognition of a liability, as required by
Statement of Financial Accounting Standards No. 5, in the current quarter
financial statements in the amount of $5,000,000 or more, or (ii) cause an
auditor to have a substantial doubt about the ability of Borrower to
continue as a going concern after consideration of management's plans as
described in Statement of Auditing Standards, No. 59.
"Material Subsidiary" shall mean each Subsidiary of Borrower, now
existing or hereinafter established or acquired, that at any time prior to
the Final Maturity Date, has or acquires total assets in excess of
$1,000,000 or that accounted for or produced more than 5% of the
Consolidated EBITR of Borrower on a consolidated basis during any of the
three most recently completed fiscal years of Borrower.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Capital Expenditures" shall mean capital expenditures less
the proceeds of sales of property, plant, and equipment.
"Net Proceeds" shall mean, with respect to any asset sale, all
cash, including (i) cash proceeds collected pursuant to a promissory note,
a receivable or otherwise (other than interest payable thereon), and (ii)
with respect to asset sales resulting from the loss, damage, destruction or
taking of property, the proceeds of insurance settlements and condemnation
awards (other than the portion of the proceeds of such settlements and such
awards that are used to repair, replace, improve or restore the item of
property in respect of which such settlement or award was paid provided
that the recipient of such proceeds enters into a binding contractual
obligation to effect such repair, replacement, improvement or restoration
within six (6) months of such loss, damage or destruction and completes
such repair, replacement, improvement or restoration within twelve (12)
months of such loss, damage, destruction or taking) as and when received in
cash, in either case, received by any Consolidated Company as a result of
or in connection with such transaction, net of reasonable sale expenses,
fees and commissions incurred, and taxes paid or expected to be payable
within the succeeding 12-month period in connection therewith, and net of
any payment required to be made with respect to the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness
(other than the Loans) secured by a Lien (to the extent permitted by
Section 8.02) upon the asset sold in such asset sale.
"Note" shall mean any of the Revolving Credit Notes, Line of
Credit Notes or the Term Notes either as originally executed or as the same
may be from time to time supplemented, modified, amended, renewed or
extended.
"Notice of Borrowing" shall have the meaning provided in
Section 4.01.
"Notice of Continuation/Conversion" shall have the meaning
provided in Section 4.01.
"Obligations" shall mean all amounts owing to the Agent or any
Lender pursuant to the terms of this Agreement or any other Credit
Document, including without limitation, all Loans (including all principal
and interest payments due thereunder), fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Credit Parties, direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with all renew
als, extensions, modifications or refinancings thereof.
"Payment Office" shall mean, for any Lender, the "Payment Office"
listed on its signature page to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, and
any successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted by
Section 8.02.
"Person" shall mean and shall include an individual, a part
nership, a joint venture, a corporation, a trust, an unincorporated
association, a government or any department or agency thereof and any other
entity whatsoever.
"Plan" shall mean any employee benefit plan, program, ar
rangement, practice or contract, maintained by or on behalf of the Borrower
or an ERISA Affiliate, which provides benefits or compensation to or on
behalf of employees or former employees, whether formal or informal,
whether or not written, including but not limited to the following types of
plans:
(i) Executive Arrangements - any bonus, incentive
compensation, stock option, deferred compensation, commission, sever
ance, "golden parachute", "rabbi trust", or other executive
compensation plan, program, contract, arrangement or practice;
(ii) ERISA Plans - any "employee benefit plan" as
defined in Section 3(3) of ERISA), including, but not limited to, any
defined benefit pension plan, profit sharing plan, money purchase
pension plan, savings or thrift plan, stock bonus plan, employee stock
ownership plan, Multiemployer Plan, or any plan, fund, program,
arrangement or practice providing for medical (including post-
retirement medical), hospitalization, accident, sickness, disability,
or life insurance benefits;
(iii) Other Employee Fringe Benefits - any stock
purchase, vacation, scholarship, day care, prepaid legal services,
severance pay or other fringe benefit plan, program, arrangement,
contract or practice.
"Pro Rata Share" shall mean, with respect to each of the
Commitments of each Lender and each Loan to be made by and each payment
(including, without limitation, any payment of principal, interest or fees)
to be made to each Lender, the percentage designated as such Lender's Pro
Rata Share of such Commitments, such Loans or such payments, as applicable,
set forth under the name of such Lender on the respective signature page
for such Lender or in any assignment hereafter executed by an assignee of a
Lender pursuant to Section 11.06, in each case as such Pro Rata Share may
change from time to time as a result of assignments or amendments made
pursuant to this Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System, as the same may be in effect from time to
time.
"Required Lenders" shall mean, at any time, Lenders holding at
least sixty-six and two-thirds percent (66 _%) of the then aggregate amount
of the Revolving Loan Commitments, the Line of Credit Commitments and
aggregate outstanding Loans.
"Requirement of Law" for any Person shall mean the articles or
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 property or to which such Person or any of its
property is subject.
"Reuters Screen" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuter
Monitor Money Rates Service (or such other page as may replace that page on
that service for the purpose of displaying rates comparable to LIBOR).
"Revolving Credit Note" shall mean, collectively, the Syndicate
Revolving Credit Notes and the Competitive Bid Revolving Credit Notes.
"Revolving Loan Commitment" shall mean, at any time for any
Lender, the amount of such commitment set forth opposite such Lender's name
on the signature pages hereof or in any assignment executed by an assignee
of a Lender pursuant to Section 11.06, as the same may be increased or
decreased from time to time as a result of any reduction thereof pursuant
to Section 2.03, any assignment thereof pursuant to Section 11.06, or any
amendment thereof pursuant to Section 11.02.
"Revolving Loans" shall mean, collectively, the revolving credit
loans made to Borrower by the Lenders pursuant to Section 2.01.
"Senior Funded Debt" shall mean an amount equal to Funded Debt
less Subordinated Debt.
"Shareholders' Equity" shall mean, with respect to any Person as
at any date of determination, shareholders' equity of such Person,
determined on a consolidated basis in conformity with GAAP.
"Subordinated Debt" shall mean all Indebtedness of Borrower and
its Subsidiaries subordinated to all obligations of Borrower and its
Subsidiaries or any other Credit Party arising under this Agreement, the
Notes and the Guaranty Agreements on terms and conditions satisfactory in
all respects to the Agent and the Required Lenders, including without
limitation, with respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Agent and Required
Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships,
joint ventures, and associations) regardless of its jurisdiction of
organization or formation, at least a majority of the total combined voting
power of all classes of voting stock or other ownership interests of which
shall, at the time as of which any determination is being made, be owned by
such Person, either directly or indirectly through one or more other
Subsidiaries.
"Syndicate Line of Credit Loan" shall mean, collectively, the
Line of Credit Loans made to Borrower hereunder other than Competitive Bid
Line of Credit Loans.
"Syndicate Line of Credit Note" shall mean a promissory note
evidencing Syndicate Line of Credit Loans in the form attached hereto as
Exhibit C.
"Syndicate Loans" shall mean, collectively, the Syndicate
Revolving Loans, the Syndicate Line of Credit Loans, and the Syndicate Term
Loans.
"Syndicate Revolving Credit Note" shall mean a promissory note
evidencing Syndicate Revolving Loans in the form attached hereto as Exhibit
A.
"Syndicate Revolving Loan" shall mean, collectively, the
Revolving Loans made to Borrower hereunder other than Competitive Bid
Revolving Loans.
"Syndicate Term Loans" shall mean, collectively, the Term Loans
made to Borrower hereunder other than the Competitive Bid Term Loans.
"Syndicate Term Note" shall mean a promissory note evidencing
Syndicate Term Loans in the form attached hereto as Exhibit E
"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts,
duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security
and franchise taxes now or hereafter imposed or levied by the United
States, or any state, local or foreign government or by any department,
agency or other political subdivision or taxing authority thereof or
therein and all interest, penalties, additions to tax and similar
liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and the "Certificate of Deposit Rate" or "LIBOR," the
display page so designated on the Dow Xxxxx Telerate Service (or such other
page as may replace that page on that service for the purpose of displaying
rates comparable to the "Certificate of Deposit Rate" or "LIBOR").
"Termination Date" shall mean August 17, 2000.
"Term Loans" shall mean, collectively, the Syndicate Term Loans
and the Competitive Bid Term Loans made to Borrower by the Lenders on the
respective Conversion Dates pursuant to Section 3.04.
"Term Note" shall mean, collectively, the Syndicate Term Notes
and the Competitive Bid Term Notes.
"Total Capital" shall mean the sum of Funded Debt and Con
solidated Net Worth.
"Total Commitment" shall mean the sum of the Lenders' Commitments
as such Total Commitment may be reduced by voluntary reduction, prepayment
or nonrenewal of a Lender's Commitment as provided herein.
"Type" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances or Eurodollar Advances, and any Advances made pursuant to the
Competitive Bid Facility.
"Wholly Owned Subsidiary" shall mean any Subsidiary, all the
stock or ownership interest of every class of which, except directors'
qualifying shares, shall, at the time as of which any determination is
being made, be owned by Borrower either directly or indirectly.
"Working Capital" shall mean, as the date of any determination
for Borrower and its subsidiaries (A) current assets, as determined in
accordance with generally accepted accounting principles, excluding cash
minus (b) current liabilities, as determined in accordance with generally
accepted accounting principles excluding the current portion of Funded
Debt, in each case determined on a consolidated basis.
Section 1.02. Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting terms shall be
construed herein, all accounting determinations hereunder shall be made,
all financial statements required to be delivered hereunder shall be
prepared, and all financial records shall be maintained in accordance with,
GAAP.
Section 1.03. Other Definitional Terms. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article, Section, Schedule,
Exhibit and like references are to this Agreement unless otherwise
specified.
Section 1.04. Exhibits and Schedules. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
ARTICLE II
REVOLVING LOANS
Section 2.01. Revolving Loan Commitments; Use of Proceeds.
(a) Subject to and upon the terms and conditions herein set
forth, each Lender severally agrees to make to Borrower from time to time
on and after the Closing Date, but prior to the Termination Date, Revolving
Loans in an aggregate amount outstanding at any time not to exceed such
Lender's Revolving Loan Commitment. Borrower shall be entitled to repay
and reborrow Revolving Loans in accordance with the provisions hereof.
(b) Each Revolving Loan shall, at the option of Borrower, be
made or continued as, or converted into, part of one or more Borrowings
that shall consist entirely of Syndicate Revolving Loans (comprised of Base
Rate Advances or Eurodollar Advances) or Competitive Bid Revolving Loans.
The aggregate principal amount of each Borrowing of Revolving Loans shall
be not less than $2,000,000 or a greater integral multiple of $100,000,
provided that each Borrowing of Revolving Loans comprised of Base Rate Ad
vances shall be not less than $250,000 or a greater integral multiple of
$10,000. At no time shall the number of Borrowings outstanding under this
Article II exceed six; provided that, for the purpose of determining the
number of Borrowings outstanding and the minimum amount for Borrowings
resulting from conversions or continuations, all Borrowings of Base Rate
Advances under this Facility shall be considered as one Borrowing. The
parties hereto agree that (i) the aggregate principal balance of the
Revolving Loans (including the Competitive Bid Revolving Loans) of the
Lenders as a group shall not exceed the aggregate principal amount of all
Revolving Loan Commitments, (ii) no Lender shall be obligated to make
Syndicate Revolving Loans in excess of the Revolving Loan Commitment of
such Lender, (iii) no Lender shall be obligated hereunder to extend
Competitive Bid Revolving Loans or to make quotes for such Loans, (iv) a
Lender may elect, in its discretion, to extend Competitive Bid Revolving
Loans which, either alone or together with the Syndicate Revolving Loans of
such Lender, exceed the Revolving Loan Commitment of such Lender and (v)
the Competitive Bid Revolving Loans (if any) extended by a Lender shall
reduce the Revolving Loan Commitment of such Lender by the amount of such
Competitive Bid Revolving Loans so extended (but not below zero).
(c) The proceeds of Revolving Loans shall be used solely to
refinance existing indebtedness, to fund obligations under share repurchase
agreements, to fund the working capital needs of the Borrower and its
Subsidiaries, and for general corporate purposes.
Section 2.02. Notes; Repayment of Principal.
(a) Borrower's obligations to pay the principal of, and interest
on, the Syndicate Revolving Loans and the Competitive Bid Revolving Loans
to each Lender shall be evidenced by the records of the Agent and such
Lender and by the Syndicate Revolving Credit Note and the Competitive Bid
Revolving Credit Note, respectively, payable to such Lender (or the
assignor of such Lender) completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Revolving Loans
shall be due and payable in full on the Termination Date.
Section 2.03. Voluntary Reduction of Revolving Loan Commitments.
Upon at least three (3) Business Days' prior telephonic notice (promptly
confirmed in writing) to the Agent, Borrower shall have the right, without
premium or penalty, to terminate the Revolving Loan Commitments, in part or
in whole, provided that (i) any such termination shall apply to
proportionately and permanently reduce the Revolving Loan Commitments of
each of the Lenders, (ii) any partial termination pursuant to this Section
2.03 shall be in an amount of at least $1,000,000 and integral multiples of
$100,000, and (iii) no such reduction shall be permitted if prohibited or
without payment of all costs required to be paid hereunder with respect to
a prepayment. If the aggregate outstanding amount of the Revolving Loans
exceeds the amount of the Revolving Loan Commitments as so reduced,
Borrower shall immediately repay the Revolving Loans by an amount equal to
such excess, together with all accrued but unpaid interest on such excess
amount and any amounts due under Section 4.12 hereof.
ARTICLE III
LINE OF CREDIT LOANS
Section 3.01. Line of Credit Commitment; Use of Proceeds.
(a) Subject to and upon the terms and conditions herein set
forth, each Lender severally agrees to make to Borrower from time to time
on and after the Closing Date, but prior to August 18, 1998 (the "Line of
Credit Maturity Date"), Line of Credit Loans in an aggregate amount
outstanding at any time not to exceed such Lender's Line of Credit
Commitment. The period between the Closing Date and the Line of Credit
Maturity Date shall be called the "Line of Credit Commitment Period."
Borrower may, on and before two hundred ten (210) days prior to the Line of
Credit Maturity Date, as it may from time to time exist, request in writing
an extension of the Line of Credit Maturity Date and Line of Credit
Commitment Period. The Lenders may, in the exercise of their sole
discretion, extend the Line of Credit Commitment Period and the Line of
Credit Maturity Date for an additional one hundred eighty (180) days. The
Lender shall notify the Borrower in writing of such election no later than
one hundred eighty (180) days prior to the Line of Credit Maturity Date.
In the event a Lender elects not to extend the Line of Credit Commitment
Period, the Total Commitment and the Line of Credit Commitment will be
reduced at the maturity thereof by the amount of the Line of Credit
Commitment of such Lender. Failure to respond by a Lender shall be deemed
to be an election not to extend the Line of Credit Commitment Period.
Borrower shall repay all Loans made by such Lender as and when due.
Neither the Commitment nor the Loans outstanding of Lenders other than such
Lender shall be reduced or in any other manner affected by such Lender's
decision not to extend the Line of Credit Commitment Period.
(b) Each Line of Credit Loan shall, at the option of Borrower,
be made or continued as, or converted into, part of one or more Borrowings
that shall consist entirely of Syndicate Line of Credit Loans (comprised of
Base Rate Advances or Eurodollar Advances) or Competitive Bid Line of
Credit Loans. The aggregate principal amount of each Borrowing of Line of
Credit Loans shall be not less than $2,000,000 or a greater integral
multiple of $100,000, provided that each Borrowing of Line of Credit Loans
comprised of Base Rate Advances shall be not less than $250,000 or a
greater integral multiple of $10,000. At no time shall the number of
Borrowings outstanding under this Article III exceed six; provided that,
for the purpose of determining the number of Borrowings outstanding and the
minimum amount for Borrowings resulting from conversions or continuations,
all Borrowings of Base Rate Advances under this Facility shall be
considered as one Borrowing. The parties hereto agree that (i) the
aggregate principal balance of the Line of Credit Loans (including the
Competitive Bid Line of Credit Loans) of the Lenders as a group shall not
exceed the aggregate principal amounts of all Line of Credit Commitments,
(ii) no Lender shall be obligated to make Syndicate Line of Credit Loans in
excess of the Line of Credit Commitment of such Lender, (iii) no Lender
shall be obligated hereunder to extend Competitive Bid Line of Credit Loans
or to make quotes for such Loans, (iv) a Lender may elect, in its
discretion, to extend Competitive Bid Line of Credit Loans which, either
alone or together with the Syndicate Line of Credit Loans of such Lender,
exceed the Line of Credit Commitment of such Lender and (v) the Competitive
Bid Line of Credit Loans (if any) extended by a Lender shall reduce the
Line of Credit Commitment of such Lender by the amount of such Competitive
Bid Line of Credit Loans so extended (but not below zero).
(c) The proceeds of Line of Credit Loans shall be used solely to
provide liquidity for the payment of commercial paper issued by Borrower
from time to time pursuant to the Borrower's unrated commercial paper
program at SunTrust Bank, Atlanta. Line of Credit Loans plus the amount of
all commercial paper issued by Borrower may not at any one time exceed
fifty million dollars ($50,000,000).
Section 3.02. Notes; Repayment of Principal.
(a) Borrower's obligations to pay the principal of, and interest
on, the Syndicate Line of Credit Loans and the Competitive Bid Line of
Credit Loans to each Lender shall be evidenced by the records of the Agent
and such Lender and by the Syndicate Line of Credit Note and the
Competitive Bid Line of Credit Note, respectively, payable to such Lender
(or the assignor of such Lender) completed in conformity with this
Agreement.
(b) All outstanding principal amounts under the Line of Credit
Loans shall be due and payable at the earlier of (i) Line of Credit
Maturity Date or (ii) acceleration of the indebtedness as provided in the
Line of Credit Notes.
Section 3.03. Voluntary Reduction of Loan Commitments. Upon at
least three (3) Business Days' prior telephonic notice (promptly confirmed
in writing) to the Agent, Borrower shall have the right, without premium or
penalty, to terminate the Line of Credit Commitments, in part or in whole,
provided that (i) any such termination shall apply to proportionately and
permanently reduce the Line of Credit Commitments of each of the Lenders,
(ii) any partial termination pursuant to this Section 3.03 shall be in an
amount of at least $1,000,000 and integral multiples of $100,000, and (iii)
no such reduction shall be permitted if prohibited or without payment of
all costs required to be paid hereunder with respect to a prepayment. If
the aggregate outstanding amount of the Line of Credit Loans exceeds the
amount of the Line of Credit Commitments as so reduced, Borrower shall
immediately repay the Line of Credit Loans by an amount equal to such
excess, together with all accrued but unpaid interest on such excess amount
and any amounts due under Section 4.12 hereof.
Section 3.04. Term Loans.
(a) The Borrower may, on or before sixty (60) days prior to any
Conversion Date of a Line of Credit Loan, request that the Borrower be
permitted to satisfy its obligation to repay the then outstanding principal
amount of such Line of Credit Loan by executing and delivering to the
respective Lenders who are owed such Line of Credit Loan a Syndicate Term
Note or Competitive Bid Term Note, as the case may be. Such Lenders shall
decide in their sole discretion whether to accept a Syndicate Term Note or
Competitive Bid Term Note in payment of such Line of Credit Loan and shall
notify the Agent of such decision no later than forty-five (45) days prior
to such Conversion Date.
(b) If the Lenders agree to accept a Syndicate Term Note or
Competitive Bid Term Note, as the case may be, then, subject to and upon
the terms and conditions herein set forth, on the Conversion Date of such
Line of Credit Loan, provided that there exists no Default or Event of
Default, Borrower shall satisfy its obligation to repay the then
outstanding principal amount of such Line of Credit Loan by executing and
delivering to the respective Lenders who are owed such Line of Credit Loan
a Syndicate Term Note or a Competitive Bid Term Note, dated the applicable
Conversion Date and payable to the applicable Lender in a principal amount
equal to such Lender's portion of the outstanding principal amount of the
Line of Credit Loan being repaid on such Conversion Date.
(c) Upon at least three (3) Business Days' prior telephonic
notice (promptly confirmed in writing) to the Agent, Borrower shall have
the right, without premium or penalty, to prepay the Term Loans, in part or
in whole, provided that (i) any such prepayment shall proportionately and
permanently reduce the Term Loans of each of the Lenders, (ii) any partial
prepayment pursuant to this Section 3.04 shall be in an amount of at least
$1,000,000 and integral multiples of $100,000, (iii) any such prepayments
shall be applied to installments of principal in inverse order of maturity,
and (iv) no such reduction shall be permitted if prohibited or without
payment of all costs required to be paid hereunder with respect to a
prepayment.
Section 3.05. Repayment of Principal of Term Loans. Borrower
shall repay each respective Term Loan two (2) years from the applicable
Conversion Date.
ARTICLE IV
GENERAL LOAN TERMS
Section 4.01. Funding Notices.
(a) (i) Whenever Borrower desires to make a Borrowing of
Syndicate Revolving Loans under its Revolving Loan Commitments or Syndicate
Line of Credit Loans under its Syndicate Line of Credit Commitments (other
than one resulting from a conversion or continuation pursuant to Section
4.01(b)(i)), it shall give the Agent prior written notice (or telephonic
notice promptly confirmed in writing) of such Borrowing (a "Notice of
Borrowing"), such Notice of Borrowing to be given prior to 11:00 A.M.
(local time for the Agent) at its Payment Office (x) one Business Day prior
to the requested date of such Borrowing in the case of Base Rate Advances,
and (y) three Business Days prior to the requested date of such Borrowing
in the case of Eurodollar Advances. Notices received after 11:00 A.M.
shall be deemed received on the next Business Day. Each Notice of Borrow
ing shall be irrevocable and shall specify the aggregate principal amount
of the Borrowing, the date of Borrowing (which shall be a Business Day),
and whether the Borrowing is to consist of Base Rate Advances or Eurodollar
Advances and (in the case of Eurodollar Advances) the Interest Period to be
applicable thereto.
(ii) Whenever Borrower desires to make a Borrowing of Competitive
Bid Revolving Loans under its Revolving Loan Commitments or Competitive Bid
Line of Credit Loans under its Line of Credit Commitments (other than one
resulting from a conversion or continuation pursuant to Section
4.01(b)(ii)), it shall give the Lenders notice that the Lenders are
requested to provide Competitive Bid Rates for Interest Periods identified
by Borrower. Notices must comply with notice requirements of each
respective Lender, which shall be communicated by Lenders to Borrower from
time to time. Each Lender in its discretion may, but shall not be
obligated to, submit a quote to the Borrower in connection with such
request. The Borrower shall then be entitled, in its sole discretion, to
elect to incur all or any part of the Competitive Bid Revolving Loan or
Competitive Bid Line of Credit Loan, as the case may be, offered by one or
more of the Lenders that have elected to provide quotes for any of the
Interest Periods and at the rate(s) quoted by such Lender(s). The
Competitive Bid Revolving Loans and Competitive Bid Line of Credit Loans
incurred by the Borrower in connection with such a request for quotes shall
not exceed (i) with respect to all Lenders then providing quotes, the then
unutilized Revolving Loan Commitments or Line of Credit Commitments, as the
case may be, of all Lenders as a group, and (ii) with respect to each
Lender providing a quote, the amount bid by such Lender in connection with
such Lender's quote. The Borrower shall notify the Agent and such Lender
or Lenders of its election in accordance with the procedures established
with such Lender or Lenders, having no obligation to report the terms
thereof.
(b) (i) Whenever Borrower desires to convert all or a portion
of an outstanding Borrowing of Syndicate Revolving Loans under its
Revolving Loan Commitments or Syndicate Line of Credit Loans under its Line
of Credit Commitments, or constituting a portion of a Syndicate Term Loan,
which Borrowing consists of Base Rate Advances into one or more Borrowings
consisting of Eurodollar Advances or to continue outstanding a Borrowing
consisting of Eurodollar Advances for a new Interest Period, it shall give
the Agent at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) of each such Borrowing to be
converted into or continued as Eurodollar Advances. Such notice (a "Notice
of Continuation/Conversion") shall be given prior to 11:00 A.M. (local time
for the Agent) on the date specified at the Payment Office of the Agent.
Each such Notice of Continuation/Conversion shall be irrevocable and shall
specify the aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation and the Interest
Period applicable thereto. If, upon the expiration of any Interest Period
in respect of any Borrowing, Borrower shall have failed to deliver the
Notice of Continuation/Conversion, Borrower shall be deemed to have elected
to convert or continue such Borrowing to a Borrowing consisting of Base
Rate Advances. So long as any Executive Officer of Borrower has knowledge
that any Default or Event of Default shall have occurred and be continuing,
no Borrowing may be converted into or continued as (upon expiration of the
current Interest Period) Eurodollar Advances unless the Agent and each of
the Lenders shall have otherwise consented in writing. No conversion of any
Borrowing of Eurodollar Advances shall be permitted except on the last day
of the Interest Period in respect thereof.
(ii) Whenever Borrower desires to continue all or a portion of an
outstanding Borrowing of Competitive Bid Revolving Loans under its
Revolving Loan Commitments or Competitive Bid Line of Credit Loans under
its Line of Credit Commitments, or constituting a portion of Competitive
Bid Term Loan, for a new Interest Period, it may request that the Lenders
provide quotes for Competitive Bid Rates in the same manner prescribed in
Section 4.01(a)(i) for funding. Whenever Borrower desires to convert all
or a portion of an outstanding Borrowing of Competitive Bid Revolving Loans
under its Revolving Loan Commitments or Competitive Bid Line of Credit
Loans under its Line of Credit Commitments, or constituting a portion of
Competitive Bid Term Loan, into a Borrowing of Syndicate Revolving Loans,
Syndicate Line of Credit Loans or Syndicate Term Loans, as the case may be,
it shall comply with the provisions prescribed in Section 4.01(b)(i) for
conversion of Syndicate Revolving Loans, Syndicate Line of Credit Loans or
Syndicate Term Loans. If, upon the expiration of any Interest Period in
respect of any Competitive Bid Borrowing, Borrower shall have failed to
deliver the Notice of Continuation/Conversion, or Lenders fail to provide
such quotes, Borrower shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing of a Syndicate Revolving Loan, a
Syndicate Line of Credit Loan or a Syndicate Term Loan consisting of Base
Rate Advances. So long as any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into (upon
expiration of the current Interest Period) Eurodollar Advances. No
conversion of any Borrowing into Eurodollar Advances shall be permitted
except on the last day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to confirm
in writing any telephonic notice, the Agent and the Lenders may act without
liability upon the basis of telephonic notice believed by the Agent or the
Lender in good faith to be from Borrower prior to receipt of written
confirmation. In each such case, Borrower hereby waives the right to
dispute the Agent's and the Lender's record of the terms of such telephonic
notice.
(d) The Agent shall promptly give each Lender notice by tele
phone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the Agent
pursuant to this Section 4.01 with respect to the Revolving Loan
Commitments, the Line of Credit Commitments, and Term Loans.
Section 4.02. Disbursement of Funds.
(a) No later than 11:00 A.M. (local time for the Agent) on the
date of each Borrowing pursuant to the Revolving Loan Commitments or the
Line of Credit Commitments (other than one resulting from a conversion or
continuation pursuant to Section 4.01(b)(i)), each Lender will make
available its Pro Rata Share of the amount of such Borrowing in immediately
available funds at the Payment Office of the Agent. The Agent will make
available to Borrower the aggregate of the amounts (if any) so made
available by the Lenders to the Agent in a timely manner by crediting such
amounts to Borrower's demand deposit account maintained with the Agent or
at Borrower's option, to effect a wire transfer of such amounts to
Borrower's account specified by the Borrower, by the close of business on
such Business Day. In the event that the Lenders do not make such amounts
available to the Agent by the time prescribed above, but such amount is
received later that day, such amount may be credited to Borrower in the man
ner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business
Day).
(b) No later than 1:00 P.M. (local time for the applicable
Lender) on the date of each Borrowing with respect to the Competitive Bid
Loan Commitments (other than one resulting from a conversion or
continuation pursuant to Section 4.01(b)(ii)), the Lender making any
Competitive Bid Loan will make available the amount of such Borrowing in
immediately available funds at its Payment Office on the date of each
Borrowing pursuant to the Revolving Loan Commitments or Line of Credit
Commitments (other than one resulting from a conversion or continuation
pursuant to Section 4.01(b)(ii)).
(c) Unless the Agent shall have been notified by the Lender
making any Syndicate Loan prior to the date of a Borrowing that such Lender
does not intend to make available to the Agent such Lender's portion of the
Borrowing to be made on such date, the Agent may assume that such Lender
has made such amount available to the Agent on such date and the Agent may
make available to Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Agent by such Lender on the
date of Borrowing, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate. If such Lender does not pay such corresponding
amount forthwith upon the Agent's demand therefor, the Agent shall promptly
notify Borrower, and Borrower shall immediately pay such corresponding
amount to the Agent together with interest at the rate specified for the
Borrowing. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Commitments hereunder or to
prejudice any rights which Borrower may have against any Lender as a result
of any default by such Lender hereunder.
(d) All Borrowings under the Syndicate Revolving Loan and Line
of Credit Commitments shall be loaned by the Lenders on the basis of their
Pro Rata Share of the Revolving Loan Commitments. All Borrowings of
Competitive Bid Loans under the Commitments shall be loaned by the Lenders
whose quotes were accepted by the Borrower. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fund its Commit
ments hereunder.
Section 4.03. Interest.
(a) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Revolving Loans, Line of Credit Loans and Term
Loans from the respective dates such principal amounts were advanced to
maturity (whether by acceleration, notice of prepayment or otherwise) at
rates per annum (on the basis of a 360-day year) equal to the applicable
rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from
time to time; and
(ii) For Eurodollar Advances--The relevant Adjusted LIBO
Rate plus the Applicable Margin.
(b) Borrower agrees to pay interest in respect of all unpaid
principal amounts of the Competitive Bid Loans made to Borrower from the
respective dates such principal amounts were advanced to maturity (whether
by acceleration, notice of prepayment or otherwise) at times and at rates
per annum equal to the applicable rates agreed upon between Borrower and
the Lender making such Competitive Bid Loans.
(c) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Revolving Loans, Line
of Credit Loans and Term Loans, whether Syndicate Loans or Competitive Bid
Loans, and all other overdue amounts owing hereunder, shall bear interest
from each date that such amounts are overdue:
(i) in the case of overdue principal and interest with
respect to all Loans outstanding as Eurodollar Advances, at the
rate otherwise applicable for the then-current Interest Period
plus an additional two percent (2.0%) per annum; thereafter at
the rate in effect for Base Rate Advances plus an additional two
percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest with
respect to all other Loans outstanding as Base Rate Advances, and
all other Obligations hereunder (other than Loans), at a rate
equal to the applicable Base Rate plus an additional two percent
(2.0%) per annum;
provided that no Loan shall bear interest after maturity, whether by non-
payment at scheduled due date, acceleration, notice of prepayment or
otherwise at a rate per annum less than two percent (2.0%) per annum in
excess of the rate of interest applicable thereto at maturity.
(d) Interest on each Loan shall accrue from and including the
date of such Loan to but excluding the date of any repayment thereof;
provided that, if a Loan is repaid on the same day made, one day's interest
shall be paid on such Loan. Interest on all outstanding Base Rate Advances
shall be payable quarterly in arrears on the last calendar day of each
calendar quarter of Borrower in each year. Interest on all outstanding
Eurodollar Advances shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of Eurodollar Advances having
an Interest Period in excess of three months, on each day which occurs
every three months, as the case may be, after the initial date of such
Interest Period. Interest on all Loans shall be payable on any conversion
of any Advances comprising such Loans into Advances of another Type,
prepayment (on the amount prepaid), at maturity (whether by acceleration,
notice of prepayment or otherwise) and, after maturity, on demand.
(e) The Agent, upon determining the Adjusted LIBO Rate for any
Interest Period, shall promptly notify by telephone (confirmed in writing)
or in writing Borrower and the other Lenders. Any such determination
shall, absent manifest error, be final, conclusive and binding for all
purposes. A Lender making a Competitive Bid Loan has no obligation to
notify any other Lender of the interest rates charged to Borrower.
Section 4.04. Interest Periods. (a) In connection with the
making or continuation of, or conversion into, each Borrowing of Syndicate
Loans comprised of Eurodollar Advances, Borrower shall select an interest
period (each an "Interest Period") to be applicable to such Fixed
Eurodollar Advances, which Interest Period shall be either a 1, 2, 3 or 6
month period; provided that:
(i) The initial Interest Period for any Borrowing of
Eurodollar Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting
of Advances of another Type) and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, provided that if any Interest
Period in respect of Eurodollar Advances would otherwise expire
on a day that is not a Business Day but is a day of the month
after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances
which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period shall, subject to part (iv) below, expire on the
last Business Day of such calendar month;
(iv) No Interest Period shall extend beyond any date upon
which any principal payment is due with respect to the Revolving
Loans, Line of Credit Loans, or Term Loans.
(b) When it requests a Lender to make a quote for a Competitive
Bid Loan, the Borrower shall specify to such Lender the Interest Period to
be applicable to such Loan, which Interest Period shall be as agreed upon
by the Borrower and such Lender; provided, however, that (i) no Interest
Period shall extend beyond the maturity date of the Revolving Loan
Commitment or the Line of Credit Commitment and (ii) if any Interest Period
would otherwise expire on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business Day. Interest shall be
payable in respect of each Competitive Bid Loan on the last day of each
Interest Period applicable to such Competitive Bid Loan, and at maturity
(whether by acceleration or otherwise).
Section 4.05. Fees.
(a) Borrower shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share to each Lender, a commitment
fee for the period commencing on the Closing Date to and including the
Termination Date, computed at a rate equal to the Applicable Commitment Fee
Percentage per annum on the average daily unused portion of the Revolving
Loan Commitments of such Lenders, such fee being payable quarterly in
arrears on the last calendar day of each fiscal quarter of Borrower and on
the Termination Date.
(b) Borrower shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share to each Lender, a commitment
fee for the period commencing on the Closing Date to and including the
sooner of the Line of Credit Maturity Date, computed at a rate equal to one-
eighth of one percent (0.125%) per annum on the average daily unused
portion of the Line of Credit Commitment of such Lender, such fee being
payable quarterly in arrears on the last calendar day of each fiscal
quarter of Borrower, and on the Line of Credit Maturity Date.
(c) Borrower shall pay to the Agent an annual administrative
fee, in advance, in the respective amount and on the dates previously
agreed in writing by Borrower with the Agent.
Section 4.06. Voluntary Prepayments of Borrowings.
(a) Borrower may, at its option, prepay Borrowings consisting of
Base Rate Advances at any time in whole, or from time to time in part, in
amounts aggregating $250,000 or any greater integral multiple of $10,000,
by paying the principal amount to be prepaid together with interest accrued
and unpaid thereon to the date of prepayment. Those Borrowings consisting
of Eurodollar Advances may be prepaid, at Borrower's option, in whole, or
from time to time in part, in the respective minimum amounts and multiples
set forth in Section 2.01(b) with respect to the Revolving Loans and
Section 3.01(b) with respect to the Line of Credit Loans, which shall apply
also to Term Loans, by paying the principal amount to be prepaid, together
with interest accrued and unpaid thereon to the date of prepayment, and all
compensation payments pursuant to Section 4.12 if such prepayment is made
on a date other than the last day of an Interest Period applicable thereto.
Each such optional prepayment shall be applied in accordance with
Section 4.06(c) below.
(b) Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Agent of any intended prepayment of the
Revolving Loans, Line of Credit Loans, or Term Loans (i) not less than one
Business Day prior to any prepayment of Base Rate Advances and (ii) not
less than three Business Days prior to any prepayment of Eurodollar
Advances. Borrower shall give written notice (or telephonic notice
confirmed in writing) to the respective Lender who made any Competitive Bid
Loan of any intended prepayment of such Competitive Bid Loan not less than
one Business Day prior to any prepayment of such Competitive Bid Loan.
Such notice, once given, shall be irrevocable. Upon receipt of such notice
of prepayment pursuant to the first sentence of this paragraph (b), the
Agent shall promptly notify each Lender of the contents of such notice and
of such Lender's share of such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to
Section 4.06(b) may designate the Types of Advances and the specific
Borrowing or Borrowings which are to be prepaid, provided that (i) if any
prepayment of Eurodollar Advances made pursuant to a single Borrowing of
the Revolving Loans, Line of Credit Loans, or Term Loans shall reduce the
outstanding Advances made pursuant to such Borrowing to an amount less than
$1,000,000, such Borrowing shall immediately be converted into Base Rate
Advances; and (ii) each prepayment made pursuant to a single Borrowing
shall be applied pro rata among the Loans comprising such Borrowing, if
such prepayment is not a prepayment of a Competitive Bid Loan. All
voluntary prepayments shall be applied to the payment of any unpaid
interest before application to principal.
Section 4.07. Payments, etc.
(a) (i) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other than
the payments specified in clause (ii) below, shall be made without defense,
set-off or counterclaim to the Agent, not later than 1:00 P.M. (local time
for the Agent) on the date when due and shall be made in Dollars in
immediately available funds at the respective Payment Office.
(ii) Except as otherwise specifically provided herein, all
payments under this Agreement with respect to the Lenders making any
Competitive Bid Loan shall be made without defense, set-off or counterclaim
to such Lender at its Payment Office not later than 11:00 A.M. (local time
for such Lender) on the date when due and in immediately available funds,
or at any other location of the Lender as such Lender may specify in
writing to Borrower not later than Noon (local time for the Lender) on the
Business Day such payment is due.
(b) (i) All such payments shall be made free and clear of and
without deduction or withholding for any Taxes in respect of this
Agreement, the Notes or other Credit Documents, or any payments of
principal, interest, fees or other amounts payable hereunder or thereunder
(but excluding any Taxes imposed on the overall net income of the Lenders
pursuant to the laws of the jurisdiction in which the principal executive
office or appropriate Lending Office of such Lender is located). If any
Taxes are so levied or imposed, Borrower agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that
every net payment of all amounts due hereunder and under the Notes and
other Credit Documents, after withholding or deduction for or on account of
any such Taxes (including additional sums payable under this Section 4.07),
will not be less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant authority
in accordance with applicable law. Borrower will furnish to the Agent and
each Lender, within 30 days after the date the payment of any Taxes is due
pursuant to applicable law, certified copies of tax receipts evidencing
such payment by Borrower. Borrower will indemnify and hold harmless the
Agent and each Lender and reimburse the Agent and each Lender upon written
request for the amount of any Taxes so levied or imposed and paid by the
Agent or Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes were correctly or illegally asserted. A certificate as to the amount
of such payment by such Lender or the Agent, absent manifest error, shall
be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Agent, prior to the time it becomes a Lender hereunder, two copies of
either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 or any successor forms thereto (wherein such Lender
claims entitlement to complete exemption from or reduced rate of U.S.
Federal withholding tax on interest paid by Borrower hereunder) and to
provide to Borrower and the Agent a new Form 4224 or Form 1001 or any
successor forms thereto if any previously delivered form is found to be
incomplete or incorrect in any material respect or upon the obsolescence of
any previously delivered form; provided, however, that no Lender shall be
required to furnish a form under this paragraph (ii) if it is not entitled
to claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an exemption from
or a reduced rate of withholding under applicable law, promptly upon
written request of Borrower, shall so inform Borrower in writing.
(c) Subject to Section 4.04(a)(ii), whenever any payment to be
made hereunder or under any Note 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 and, with respect to payments of principal,
interest thereon shall be payable at the applicable rate during such
extension.
(d) On other than Competitive Bid Loans, which shall be
negotiated from time to time, all computations of interest and fees shall
be made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable (to the extent computed
on the basis of days elapsed), except that interest on Base Rate Advances
shall be computed on the basis of a year of 360 days for the actual number
of days. Interest on Base Rate Advances shall be calculated based on the
Base Rate from and including the date of such Loan to but excluding the
date of the repayment or conversion thereof. Interest on Eurodollar
Advances shall be calculated as to each Interest Period from and including
the first day thereof to but excluding the last day thereof. Each
determination by the Agent or the Lender making any Competitive Bid Loan of
an interest rate or fee hereunder shall be made in good faith and, except
for manifest error, shall be final, conclusive and binding for all
purposes.
(e) Payment by Borrower to the Agent in accordance with the
terms of this Agreement shall, as to Borrower, constitute payment to the
Lenders under this Agreement.
Section 4.08. Interest Rate Not Ascertainable, etc. In the
event that the Agent, in the case of the Adjusted LIBO Rate, shall have
determined (which determination shall be made in good faith and, absent
manifest error, shall be final, conclusive and binding upon all parties)
that on any date for determining the Adjusted LIBO Rate for any Interest
Period, by reason of any changes arising after the date of this Agreement
affecting the London interbank market or the Agent's position in such
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of Ad
justed LIBO Rate then, and in any such event, the Agent shall forthwith
give notice (by telephone confirmed in writing) to Borrower and to the
Lenders of such determination and a summary of the basis for such
determination. Until the Agent notifies Borrower that the circumstances
giving rise to the suspension described herein no longer exist, the
obligations of the Lenders to make or permit portions of the Revolving
Loans, Line of Credit Loans, or Term Loans to remain outstanding past the
last day of the then current Interest Periods as Eurodollar Advances shall
be suspended, and such affected Advances shall bear the same interest as
Base Rate Advances.
Section 4.09. Illegality.
(a) In the event that any Lender shall have determined (which
determination shall be made in good faith and, absent manifest error, shall
be final, conclusive and binding upon all parties) at any time that the
making or continuance of any Eurodollar Advance has become unlawful by
compliance by such Lender in good faith with any applicable law,
governmental rule, regulation, guideline or order (whether or not having
the force of law and whether or not failure to comply therewith would be
unlawful), then, in any such event, the Lender shall give prompt notice (by
telephone confirmed in writing) to Borrower and to the Agent of such
determination and a summary of the basis for such determination (which
notice the Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in
subsection (a) above, (i) Borrower's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended, and
such Lender shall make an Advance as part of the requested Borrowing of
Eurodollar Advances as a Base Rate Advance, provided, Borrower does not
negotiate a Competitive Bid Loan, which Base Rate Advance shall, for all
other purposes, be considered part of such Borrowing, and (ii) if the
affected Eurodollar Advance or Advances are then outstanding, Borrower
shall immediately, or if permitted by applicable law, no later than the
date permitted thereby, upon at least one Business Day's written notice to
the Agent and the affected Lender, convert each such Advance into an
Advance or Advances of a different Type with an Interest Period ending on
the date on which the Interest Period applicable to the affected Eurodollar
Advances expires, provided that if more than one Lender is affected at any
time, then all affected Lenders must be treated the same pursuant to this
Section 4.09(b).
Section 4.10. Increased Costs.
(a) If, by reason of (x) after the date hereof, the introduction
of or any change (including, without limitation, any change by way of
imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (y) the compliance with any guideline or
request from any central bank or other governmental authority or quasi-
governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(i) any Lender (or its applicable Lending Office) shall be
subject to any tax, duty or other charge with respect to its
Eurodollar Advances or its obligation to make Eurodollar Advances, or
the basis of taxation of payments to any Lender of the principal of or
interest on its Eurodollar Advances or its obligation to make
Eurodollar Advances shall have changed (except for changes in the tax
on the overall net income of such Lender or its applicable Lending
Office imposed by the jurisdiction in which such Lender's principal
executive office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any imposed by
the Board of Governors of the Federal Reserve System), special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender's applicable Lending
Office shall be imposed or deemed applicable or any other condition
affecting its Eurodollar Advances or its obligation to make Eurodollar
Advances shall be imposed on any Lender or its applicable Lending
Office or the London interbank market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Advances), or there shall be a reduction in
the amount received or receivable by such Lender or its applicable Lending
Office, then Borrower shall from time to time (subject, in the case of certain
Taxes, to the applicable provisions of Section 4.07(b)), upon written notice
from and demand by such Lender on Borrower (with a copy of such notice and
demand to the Agent), pay to the Agent for the account of such Lender within
five Business Days after the date of such notice and demand, additional amounts
sufficient to indemnify such Lender against such increased cost. A certificate
as to the amount of such increased cost, submitted to Borrower and the Agent by
such Lender in good faith and accompanied by a statement prepared by such Lender
describing in reasonable detail the basis for and calculation of such increased
cost, shall, except for manifest error, be final, conclusive and binding for all
purposes.
(b) If any Lender shall advise the Agent that at any time, because of
the circumstances described in clauses (x) or (y) in Section 4.10(a) or any
other circumstances beyond such Lender's reasonable control arising after the
date of this Agreement affecting such Lender or the London interbank market or
the United States secondary certificate of deposit market or such Lender's
position in such markets, the Adjusted LIBO Rate, as determined by the Agent,
will not adequately and fairly reflect the cost to such Lender of funding its
Eurodollar Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone confirmed in
writing) to Borrower and to the other Lenders of such advice;
(ii) Borrower's right to request and such Lender's obligation to make
or permit portions of the Loans to remain outstanding past the last day of
the then current Interest Periods as Eurodollar Advances shall be
immediately suspended; and
(iii) such Lender shall make a Loan as part of the requested
Borrowing of Eurodollar Advances, as the case may be, as a Base Rate
Advance, which such Base Rate Advance shall, for all other purposes,
be considered part of such Borrowing.
Section 4.11. Lending Offices.
(a) Each Lender agrees that, if requested by Borrower, it will
use reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of its
Eurodollar Advances affected by the matters or circumstances described in
Sections 4.07(b), 4.08, 4.09 or 4.10 to reduce the liability of Borrower or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender, which
determination if made in good faith, shall be conclusive and binding on all
parties hereto. Nothing in this Section 4.11 shall affect or postpone any
of the obligations of Borrower or any right of any Lender provided
hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with
respect to the closing of its lending offices in the United States such
that any withholdings or deductions and additional payments with respect to
Taxes may be required to be made by Borrower thereafter pursuant to Section
4.07(b), such Lender shall use reasonable efforts to furnish Borrower
notice thereof as soon as practicable thereafter; provided, however, that
no delay or failure to furnish such notice shall in any event release or
discharge Borrower from its obligations to such Lender pursuant to Section
4.07(b) or otherwise result in any liability of such Lender.
Section 4.12. Funding Losses. Borrower shall compensate each
Lender, upon its written request to Borrower (which request shall set forth
the basis for requesting such amounts in reasonable detail and which
request shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all of the parties hereto), for all
losses, expenses and liabilities (including, without limitation, any
interest paid by such Lender to lenders of funds borrowed by it to make or
carry its Eurodollar Advances, in either case to the extent not recovered
by such Lender in connection with the re-employment of such funds and
including loss of anticipated profits), which the Lender may sustain: (i)
if for any reason (other than a default by such Lender) a borrowing of, or
conversion to or continuation of, Eurodollar Advances to Borrower does not
occur on the date specified therefor in a Notice of Borrowing or Notice of
Continuation/Conversion (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section
4.09(b)) of any Eurodollar Advances to Borrower occurs on a date which is
not the last day of an Interest Period applicable thereto, or (iii), if,
for any reason, Borrower defaults in its obligation to repay its Eurodollar
Advances when required by the terms of this Agreement.
Section 4.13. Assumptions Concerning Funding of Eurodollar
Advances. Calculation of all amounts payable to a Lender under this
Article IV shall be made as though that Lender had actually funded its
relevant Eurodollar Advances through the purchase of deposits in the
relevant market bearing interest at the rate applicable to such Eurodollar
Advances in an amount equal to the amount of the Eurodollar Advances and
having a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar Advances from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar
Advances in any manner it sees fit and the foregoing assumption shall be
used only for calculation of amounts payable under this Article IV.
Section 4.14. Apportionment of Payments. Aggregate principal
and interest payments in respect of Loans and payments in respect of
facility fees and commitment fees shall be apportioned among all
outstanding Commitments and Loans to which such payments relate,
proportionately to the Lenders' respective pro rata portions of such
Commitments and outstanding Loans. The Agent shall promptly distribute to
each Lender at its payment office set forth beside its name on the
appropriate signature page hereof or such other address as any Lender may
request its share of all such payments received by the Agent.
Section 4.15. Sharing of Payments, Etc. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code) of the Obligations (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its pro rata portion of payments or reductions on account of such
obligations obtained by all the Lenders, such Lender shall forthwith (i)
notify each of the other Lenders and Agent of such receipt, and (ii)
purchase from the other Lenders such participations in the affected
obligations as shall be necessary to cause such purchasing Lender to share
the excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them, provided that if all or any portion
of such excess payment or reduction is thereafter recovered from such
purchasing Lender or additional costs are incurred, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery or
such additional costs, but without interest unless the Lender obligated to
return such funds is required to pay interest on such funds. Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 4.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
Section 4.16. Capital Adequacy. Without limiting any other
provision of this Agreement, in the event that any Lender shall have
determined that any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy not currently in
effect or fully applicable as of the Closing Date, or any change therein or
in the interpretation or application thereof after the Closing Date, or
compliance by such Lender with any request or directive regarding capital
adequacy not currently in effect or fully applicable as of the Closing Date
(whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) from a central bank or governmental
authority or body having jurisdiction, does or shall have the effect of
reducing the rate of return on such Lender's capital as a consequence of
its obligations hereunder to a level below that which such Lender could
have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such
Lender's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then within ten (10) Business Days after
written notice and demand by such Lender (with copies thereof to the
Agent), Borrower shall from time to time pay to such Lender additional
amounts sufficient to compensate such Lender for such reduction (but, in
the case of outstanding Base Rate Advances, without duplication of any
amounts already recovered by such Lender by reason of an adjustment in the
applicable Base Rate). Each certificate as to the amount payable under
this Section 4.16 (which certificate shall set forth the basis for
requesting such amounts in reasonable detail), submitted to Borrower by any
Lender in good faith, shall, absent manifest error, be final, conclusive
and binding for all purposes.
Section 4.17. Benefits to Guarantors. In consideration for the
execution and delivery by the Guarantors of their Guaranty Agreement,
Borrower agrees to make the benefit of extensions of credit hereunder
available to the Guarantors.
Section 4.18. Limitation on Certain Payment Obligations. (a)
Each Lender or Agent shall make written demand on Borrower for
indemnification or compensation pursuant to Section 4.07 no later than 90
days after the earlier of (i) the date on which such Lender or the Agent
makes payment of such Taxes, and (ii) the date on which the relevant taxing
authority or other governmental authority makes written demand upon such
Lender or the Agent for payment of such Taxes.
(b) Each Lender or the Agent shall make written demand on
Borrower for indemnification or compensation pursuant to Sections 4.12 and
4.13 no later than 90 days after the event giving rise to the claim for
indemnification or compensation occurs.
(c) Each Lender or the Agent shall make written demand on
Borrower for indemnification or compensation pursuant to Sections 4.10 and
4.16 no later than 90 days after such Lender or the Agent receives actual
notice or obtains actual knowledge of the promulgation of a law, rule,
order or interpretation or occurrence of another event giving rise to a
claim pursuant to such sections.
(d) In the event that the Lenders or the Agent fail to give
Borrower notice within the time limitations prescribed in (a) or (b) above,
Borrower shall not have any obligation to pay such claim for compensation
or indemnification. In the event that the Lender or the Agent fail to give
Borrower notice within the time limitation prescribed in (c) above,
Borrower shall not have any obligation to pay any amount with respect to
claims accruing prior to the ninetieth day preceding such written demand.
ARTICLE V.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Borrower
hereunder and to accept a Term Note on a Conversion Date is subject to the
satisfaction of the following conditions:
Section 5.01. Conditions Precedent to Initial Loans. At the
time of the making of the initial Loans hereunder on the Closing Date, all
obligations of Borrower hereunder incurred prior to the initial Loans
(including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Agent and any fees and
expenses payable to the Agent and the Lenders as previously agreed with
Borrower), shall have been paid in full, and the Agent shall have received
the following, in form and substance reasonably satisfactory in all
respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Credit Notes evidencing the
Revolving Loan Commitments and the duly executed Line of Credit Notes
evidencing the Line of Credit Commitment;
(c) the Guaranty Agreements;
(d) certificate of Borrower in substantially the form of Exhibit
H attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of each
of the Credit Parties attaching and certifying copies of the
resolutions of the boards of directors of the Credit Parties,
authorizing as applicable the execution, delivery and performance of
the Credit Documents;
(f) certificates of the Secretary or an Assistant Secretary of
each of the Credit Parties certifying (i) the name, title and true
signature of each officer of such entities executing the Credit
Documents, (ii) the bylaws or comparable governing documents of such
entities; and (iii) the certificate or articles of incorporation of
each Credit Party;
(g) certificates of good standing or existence, as may be avail
able from the Secretary of State of the jurisdiction of incorporation
or organization of such Credit Party;
(h) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the
Credit Parties, in connection with the execution, delivery,
performance, validity and enforceability of the Credit Documents and
the other documents to be executed and delivered hereunder, and such
consents, authorizations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired;
(i) certified copies of the Intercompany Loan Documents, to the
extent that they exist and have not previously been certified to the
Lenders;
(j) acknowledgment from CSC Network Corporation System, Inc. as
to its appointment as agent for service of process for the various
Credit Parties;
(k) certified copies of indentures, credit agreements, leases,
capital leases, instruments, and other documents evidencing or
securing Indebtedness of any Consolidated Company described on
Schedule 8.01(b), in any single case in an amount not less than
$500,000 and to the extent not previously certified to the Lenders;
(l) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities or
obligations arising from matters relating to employees of the
Consolidated Companies, including employee relations, collective
bargaining agreements, Plans, and other compensation and employee
benefit plans;
(m) certificates, reports, environmental audits and
investigations, and other information as the Agent may reasonably
request from any Consolidated Company in order to satisfy the Lenders
as to the absence of any material liabilities or obligations arising
from environmental and employee health and safety exposures to which
the Consolidated Companies may be subject, and the plans of the
Consolidated Companies with respect thereto;
(n) certificates, reports and other information as the Agent may
reasonably request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities or
obligations arising from litigation (including without limitation,
products liability and patent infringement claims) pending or
threatened against the Consolidated Companies;
(o) a summary, set forth in format and detail reasonably accept
able to the Agent, of the types and amounts of insurance (property and
liability) maintained by the Consolidated Companies;
(p) the favorable opinion of counsel to the Credit Parties,
substantially in the form of Exhibit J, addressed to the Agent and
each of the Lenders; and
(q) financial statements of Borrower and its Subsidiaries,
audited on a consolidated basis for the fiscal year ended on the last
Friday in January, 1997 and unaudited on a consolidated basis for the
fiscal quarter ended on the last Friday in April, 1997.
In addition to the foregoing, the following conditions shall have been
satisfied or shall exist, all to the satisfaction of the Agent, as of the
time the initial Loans are made hereunder:
(x) the Loans to be made on the Closing Date and the use of
proceeds thereof shall not contravene, violate or conflict with, or
involve the Agent or any Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any court of law or
other governmental authority;
(y) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and
enforceability of the Credit Documents shall be reasonably
satisfactory in form and substance to the Required Lenders; and
(z) the status of all pending and threatened litigation
(including products liability and patent claims) which might result in
a Materially Adverse Effect, including a description of any damages
sought and the claims constituting the basis therefor, shall have been
reported in writing to the Agent, the Agent shall have reported such
matters to the Lenders, and the Lenders shall be satisfied with such
status.
Section 5.02. Conditions to All Loans. At the time of the
making of all Loans (before as well as after giving effect to such Loans
and to the proposed use of the proceeds thereof), the following conditions
shall have been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained
herein shall be true and correct in all material respects with the
same effect as though such representations and warranties had been
made on and as of the date of such Loans;
(c) since the date of the most recent financial statements of
the Consolidated Companies described in Section 6.03, there shall have
been no change which has had or could reasonably be expected to have a
Materially Adverse Effect.
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge
of Borrower, threatened (i) which reasonably could be expected to have
a Materially Adverse Effect, or (ii) seeking to prohibit or restrict
one or more Credit Party's ownership or operation of any portion of
its business or assets, or to compel one or more Credit Party to
dispose of or hold separate all or any portion of its businesses or
assets, where such portion or portions of such business(es) or assets,
as the case may be, constitute a material portion of the total
businesses or assets of the Consolidated Companies;
(e) the Loans to be made and the use of proceeds thereof shall
not contravene, violate or conflict with, or involve the Agent or any
Lender in a violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority
applicable to Borrower; and
(f) the Agent shall have received such other documents or legal
opinions as the Agent or any Lender may reasonably request, all in
form and substance reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by Borrower of
the proceeds thereof shall constitute a representation and warranty by
Borrower, as of the date of the Loans comprising such Borrowing, that the
applicable conditions specified in Sections 5.01 and 5.02 have been
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to Lenders that:
Section 6.01. Organization and Qualification. Borrower is a
corporation duly organized and existing in good standing under the laws of
the State of Florida. Each Subsidiary of Borrower is a corporation duly
organized and existing under the laws of the jurisdiction of its
incorporation. Borrower and each of its Subsidiaries are duly qualified to
do business as a foreign corporation and are in good standing in each
jurisdiction in which the character of their properties or the nature of
their business makes such qualification necessary, except for such
jurisdictions in which a failure to qualify to do business would not have a
Materially Adverse Effect. Borrower and each of its Subsidiaries have the
corporate power to own their respective properties and to carry on their
respective businesses as now being conducted. The jurisdiction of
incorporation or organization, and the ownership of all issued and
outstanding capital stock, for each Subsidiary as of the date of this
Agreement is accurately described on Schedule 6.01. Schedule 6.01 also
designates the Material Subsidiaries as of the Closing Date.
Section 6.02. Corporate Authority. The execution and delivery
by Borrower and the Guarantors of and the performance by Borrower and
Guarantors of their obligations under the Credit Documents have been duly
authorized by all requisite corporate action and all requisite shareholder
action, if any, on the part of Borrower and the Guarantors and do not and
will not (i) violate any provision of any law, rule or regulation, any judg
ment, order or ruling of any court or governmental agency, the
organizational papers or bylaws of Borrower or the Guarantors, or any
indenture, agreement or other instrument to which Borrower or the
Guarantors are a party or by which Borrower or the Guarantors or any of
their properties is bound, or (ii) be in conflict with, result in a breach
of, or constitute with notice or lapse of time or both a default under any
such indenture, agreement or other instrument.
Section 6.03. Financial Statements. Borrower has furnished
Lenders with the following financial statements, identified by the
Treasurer of Borrower: (i) consolidated balance sheets and consolidated
statements of income, stockholders' equity and cash flow of Borrower for
the fiscal year ended on the last Friday in January, 1997, certified by
Price Waterhouse, L.L.P. and (ii) unaudited consolidated balance sheets and
consolidated statements of income, stockholders' equity and cash flow of
Borrower for the fiscal quarter ending on the last Friday in April, 1997.
Such financial statements (including any related schedules and notes) are
true and correct in all material respects (subject, as to interim
statements, to changes resulting from audits and year end adjustments),
have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the period or periods in
question and show, in the case of audited statements, all liabilities,
direct or contingent, of Borrower and its Subsidiaries, required to be
shown in accordance with generally accepted accounting principles
consistently applied throughout the period or periods in question and
fairly present the consolidated financial position and the consolidated
results of operations of Borrower and its Subsidiaries for the periods
indicated therein. There has been no material adverse change in the
business, condition or operations, financial or otherwise, of Borrower and
its Subsidiaries since the last Friday in April, 1997.
Section 6.04. Tax Returns. Except as set forth on Schedule
6.04, each of Borrower and its Subsidiaries has filed all federal, state
and other income tax returns which, to the best knowledge of the executive
officers of Borrower and its Subsidiaries, are required to be filed, and
each has paid all taxes as shown on said returns and on all assessments
received by it to the extent that such taxes have become due or except such
as are being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with generally
accepted accounting principles.
Section 6.05. Actions Pending. Except as disclosed on Schedule
6.05 hereto, there is no action, suit, investigation or proceeding pending
or, to the knowledge of Borrower, threatened against or affecting Borrower
or any of its Subsidiaries or any of their properties or rights, by or
before any court, arbitrator or administrative or governmental body, which
might result in any Materially Adverse Effect.
Section 6.06. Representations; No Defaults. At the time of each
Extension of Credit there shall exist no Default or Event of Default, and
each Extension of Credit shall be deemed a renewal by Borrower of the
representations and warranties contained in this Agreement and an
affirmative statement by Borrower that such representations and warranties
are true and correct on and as of such time with the same effect as though
such representations and warranties had been made on and as of such time.
Section 6.07. Title to Properties. Each of Borrower and its
Subsidiaries has (i) good and marketable fee simple title to its respective
real properties (other than real properties which it leases from others),
including such real properties reflected in the consolidated balance sheet
of Borrower and its Subsidiaries as of the last Friday of April, 1997,
hereinabove described (other than real properties disposed of in the
ordinary course of business), subject to no Lien of any kind except Liens
permitted by Section 8.02 and (ii) good title to all of its other
respective properties and assets (other than properties and assets which it
leases from others), including the other properties and assets reflected in
the consolidated balance sheet of Borrower and its Subsidiaries at the last
Friday of April, 1997, hereinabove described (other than properties and
assets disposed of in the ordinary course of business), subject to no Lien
of any kind except Liens permitted by Section 8.02. Each of Borrower and
its Subsidiaries enjoys peaceful and undisturbed possession under all
leases necessary in any material respect for the operation of its
respective properties and assets, none of which contains any unusual or
burdensome provisions which might materially affect or impair the operation
of such properties and assets, and all such leases are valid and subsisting
and in full force and effect.
Section 6.08. Enforceability of Agreement. This Agreement is
the legal, valid and binding agreement of Borrower enforceable against
Borrower in accordance with its terms, and the Notes, and all other Credit
Documents, when executed and delivered, will be similarly legal, valid,
binding and enforceable, except as the enforceability of the Notes and
other Credit Documents may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditor's rights and
remedies in general and by general principles of equity, whether considered
in a proceeding at law or in equity.
Section 6.09. Consent. No consent, permission, authorization,
order or license of any governmental authority or Person is necessary in
connection with the execution, delivery, performance or enforcement of the
Credit Documents, or in order to constitute the indebtedness to be incurred
hereunder and under the Notes and the other Credit Documents as "Senior
Debt" or any similar term defined within the documents evidencing any
Subordinated Debt.
Section 6.10. Use of Proceeds; Federal Reserve Regulations. The
proceeds of the Notes will be used solely for the purposes specified in
Section 2.01(c) and 3.01(c) and none of such proceeds will be used,
directly or indirectly, for the purpose of purchasing or carrying any
"margin security" or "margin stock" or for the purpose of reducing or
retiring any indebtedness that originally was incurred to purchase or carry
a "margin security" or "margin stock" or for any other purpose that might
constitute this transaction a "purpose credit" within the meaning of the
regulations of the Board of Governors of the Federal Reserve System.
Section 6.11. ERISA.
(a) Identification of Certain Plans. Schedule 6.11 hereto sets
forth all Plans of Borrower and its Subsidiaries;
(b) Compliance. Each Plan is being maintained, by its terms and
in operation, in accordance with all applicable laws, except such
noncompliances (when taken as a whole) that will not have a materially
adverse effect on the Borrower and its Subsidiaries taken as a whole, or
upon their financial condition, assets, business, operations, liabilities
or prospects;
(c) Liabilities. Neither the Borrower nor any Subsidiary is
currently or will become subject to any liability (including withdrawal
liability), tax or penalty whatsoever to any person whomsoever with respect
to any Plan including, but not limited to, any tax, penalty or liability
arising under Title I or Title IV of ERISA or Chapter 43 of the Code,
except such liabilities (when taken as a whole) as will not have a
materially adverse effect on the Borrower and its Subsidiaries taken as a
whole, or upon their financial condition, assets, business, operations,
liabilities or prospects; and
(d) Funding. The Borrower and each ERISA Affiliate has made
full and timely payment of all amounts (i) required to be contributed under
the terms of each Plan and applicable law and (ii) required to be paid as
expenses of each Plan, except where such non-payment would not have a
Materially Adverse Effect. No Plan has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA) except as
disclosed on Schedule 6.11. No Plan is subject to a waiver or extension of
the minimum funding requirements under ERISA or the Code, and no request
for such waiver or extension is pending.
Section 6.12. Subsidiaries. All the outstanding shares of stock
of each such Subsidiary have been validly issued and are fully paid and
nonassessable and all such outstanding shares, except as noted on such
Schedule 6.01, are owned by Borrower or a Wholly Owned Subsidiary of
Borrower free of any Lien or claim.
Each Subsidiary (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of its
incorporation with the power and authority (corporate and other) to carry
on its business as it is now conducted and (ii) is qualified to transact
business as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required under applicable law.
Section 6.13. Outstanding Indebtedness. As of the date of
closing and after giving effect to the transactions contemplated by this
Agreement, neither Borrower nor any of its Subsidiaries has outstanding any
Indebtedness except as permitted by Section 8.01 and there exists no
default under the provisions of any instrument evidencing such Indebtedness
or of any agreement relating thereto.
Section 6.14. Conflicting Agreements. Neither Borrower nor any
of its Subsidiaries is a party to any contract or agreement or other
burdensome restrictions or subject to any charter or other corporate
restriction which materially and adversely affects its business, property
or assets, or financial condition. Assuming the consummation of the
transactions contemplated by this Agreement, neither the execution or
delivery of this Agreement or the Credit Documents, nor fulfillment of or
compliance with the terms and provisions hereof and thereof, will conflict
with, or result in a breach of the terms, conditions or provisions of, or
constitute a default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of Borrower or
any of its Subsidiaries pursuant to, the charter or By-Laws of Borrower or
any of its Subsidiaries, any award of any arbitrator or any agreement
(including any agreement with stockholders), instrument, order, judgment,
decree, statute, law, rule or regulation to which Borrower or any of its
Subsidiaries is subject, and neither Borrower nor any of its Subsidiaries
is a party to, or otherwise subject to any provision contained in, any
instrument evidencing Indebtedness of Borrower or any of its Subsidiaries,
any agreement relating thereto or any other contract or agreement
(including its charter) which limits the amount of, or otherwise imposes
restrictions on the incurring of, Indebtedness of the type to be evidenced
by the Notes or contains dividend or redemption limitations on Common Stock
of Borrower, except for this Agreement, Borrower's Certificate of
Incorporation and those matters listed on Schedule 6.14 attached hereto.
Section 6.15. Pollution and Other Regulations.
(a) Each of the Borrower and its Subsidiaries has complied in
all material respects with all applicable Environmental Laws, including
without limitation, compliance with permits, licenses, standards, schedules
and timetables, and is not in violation of, and does not presently have
outstanding any liability under, has not been notified that it is or may be
liable under and does not have knowledge of any liability or potential
liability (including any liability relating to matters set forth on
Schedule 6.15(a)) except as set forth on Schedule 6.15(a), under any
applicable Environmental Law, including without limitation, the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of
1986 ("CERCLA"), the Federal Water Pollution Control Act, as amended
("FWPCA"), the Federal Clean Air Act, as amended ("FCAA"), and the Toxic
Substance Control Act ("TSCA"), which violation, liability or potential
liability could reasonably be expected to have a Materially Adverse Effect.
(b) Except as set forth on Schedule 6.15(b), neither the
Borrower nor any of its Subsidiaries has received a written request for
information under CERCLA, any other Environmental Laws or any comparable
state law, or any public health or safety or welfare law or written notice
that any such entity has been identified as a potential responsible party
under CERCLA, and other Environmental Laws, or any comparable state law, or
any public health or safety or welfare law, nor has any such entity
received any written notification that any Hazardous Substance that it or
any of its respective predecessors in interest has generated, stored,
treated, handled, transported, or disposed of, has been released or is
threatened to be released at any site at which any Person intends to
conduct or is conducting a remedial investigation or other action pursuant
to any applicable Environmental Law, or any other Environmental Laws.
(c) Except as set forth on Schedule 6.15(c), each of the
Borrower and its Subsidiaries has obtained all permits, licenses or other
authorizations required for the conduct of their respective operations
under all applicable Environmental Laws and Asbestos Laws and each such
authorization is in full force and effect.
(d) Each of Borrower and its Subsidiaries complies in all
material respects with all laws and regulations relating to equal
employment opportunity and employee safety in all jurisdictions in which it
is presently doing business, and Borrower will use its best efforts to
comply, and to cause each of its Subsidiaries to comply, with all such laws
and regulations which may be legally imposed in the future in jurisdictions
in which Borrower or any of its Subsidiaries may then be doing business.
Section 6.16. Possession of Franchises, Licenses, Etc. Each of
Borrower and its Subsidiaries possesses all franchises, certificates,
licenses, permits and other authorizations from governmental political
subdivisions or regulatory authorities, free from burdensome restrictions,
that are necessary in any material respect for the ownership, maintenance
and operation of its properties and assets, and neither Borrower nor any of
its Subsidiaries is in violation of any thereof in any material respect.
Section 6.17. Patents, Etc. Except as set forth on Schedule
6.17, each of Borrower and its Subsidiaries owns or has the right to use
all patents, trademarks, service marks, trade names, copyrights, licenses
and other rights, free from burdensome restrictions, which are necessary
for the operation of its business as presently conducted. Nothing has come
to the attention of Borrower, any of its Subsidiaries or any of their
respective directors and officers to the effect that (i) any product,
process, method, substance, part or other material presently contemplated
to be sold by or employed by Borrower or any of its Subsidiaries in
connection with its business may infringe any patent, trademark, service
xxxx, trade name, copyright, license or other right owned by any other
Person, (ii) there is pending or threatened any claim or litigation against
or affecting Borrower or any of its Subsidiaries contesting its right to
sell or use any such product, process, method, substance, part or other
material or (iii) there is, or there is pending or proposed, any patent,
invention, device, application or principle or any statute, law, rule,
regulation, standard or code which would prevent, inhibit or render
obsolete the production or sale of any products of, or substantially reduce
the projected revenues of, or otherwise materially adversely affect the
business, condition or operations of, Borrower or any of its Subsidiaries.
Section 6.18. Governmental Consent. Neither the nature of
Borrower or any of its Subsidiaries nor any of their respective businesses
or properties, nor any relationship between Borrower and any other Person,
nor any circumstance in connection with the execution and delivery of the
Credit Documents and the consummation of the transactions contemplated
thereby is such as to require on behalf of Borrower or any of its
Subsidiaries any consent, approval or other action by or any notice to or
filing with any court or administrative or governmental body in connection
with the execution and delivery of this Agreement and the Credit Documents.
Section 6.19. Disclosure. Neither this Agreement nor the Credit
Documents nor any other document, certificate or written statement
furnished to Lenders by or on behalf of Borrower in connection herewith
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein or
therein not misleading. There is no fact peculiar to Borrower which
materially adversely affects or in the future may (so far as Borrower can
now foresee) materially adversely affect the business, property or assets,
financial condition or prospects of Borrower which has not been set forth
in this Agreement or in the Credit Documents, certificates and written
statements furnished to Lenders by or on behalf of Borrower prior to the
date hereof in connection with the transactions contemplated hereby.
Section 6.20. Insurance Coverage. Each property of Borrower or
any of its Subsidiaries is insured within terms acceptable to Lenders for
the benefit of Borrower or a Subsidiary of Borrower in amounts deemed
adequate by Borrower's management and no less than those amounts customary
in the industry in which Borrower and its Subsidiaries operate against
risks usually insured against by Persons operating businesses similar to
those of Borrower or its Subsidiaries in the localities where such
properties are located.
Section 6.21. Labor Matters. Except as set forth on Schedule
6.21, the Borrower and the Borrower's Subsidiaries have experienced no
strikes, labor disputes, slow downs or work stoppages due to labor
disagreements which have had, or would reasonably be expected to have, a
Materially Adverse Effect, and, to the best knowledge of Borrower's
executive officers, there are no such strikes, disputes, slow downs or work
stoppages threatened against any Borrower or any of Borrower's
Subsidiaries. The hours worked and payment made to employees of the
Borrower and Borrower's Subsidiaries have not been in violation in any
material respect of the Fair Labor Standards Act or any other applicable
law dealing with such matters. All payments due from the Borrower and
Borrower's Subsidiaries, or for which any claim may be made against the
Consolidated Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as liabilities on
the books of the Borrower and Borrower's Subsidiaries where the failure to
pay or accrue such liabilities would reasonably be expected to have a
Materially Adverse Effect.
Section 6.22. Intercompany Loans; Dividends. The Intercompany
Loans and the Intercompany Credit Documents, to the extent that they exist,
have been duly authorized and approved by all necessary corporate and
shareholder action on the part of the parties thereto, and constitute the
legal, valid and binding obligations of the parties thereto, enforceable
against each of them in accordance with their respective terms, except as
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally, and by
general principles of equity. There are no restrictions on the power of
any Consolidated Company to repay any Intercompany Loan or to pay dividends
on the capital stock. Intercompany Loans as of the Closing Date are
described in Schedule 6.22.
Section 6.23. Burdensome Restrictions. Except as set forth on
Schedule 6.23, none of the Consolidated Companies is a party to or bound by
any Contractual Obligation or Requirement of Law which has had or would
reasonably be expected to have a Materially Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it may borrow under
this Agreement or so long as any indebtedness remains outstanding under the
Notes that it will:
Section 7.01. Corporate Existence, Etc. Preserve and maintain,
and cause each of its Material Subsidiaries to preserve and maintain, its
corporate existence, its material rights, franchises, and licenses, and its
material patents and copyrights (for the scheduled duration thereof),
trademarks, trade names, and service marks, necessary or desirable in the
normal conduct of its business, and its qualification to do business as a
foreign corporation in all jurisdictions where it conducts business or
other activities making such qualification necessary, where the failure to
do so would reasonably be expected to have a Materially Adverse Effect.
Section 7.02. Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply with all Requirements of Law (including,
without limitation, the Environmental Laws, subject to the exception set
forth in Section 7.07 where the penalties, claims, fines, and other
liabilities resulting from noncompliance with such Environmental Laws do
not involve amounts in excess of $5,000,000 in the aggregate) and
Contractual Obligations applicable to or binding on any of them where the
failure to comply with such Requirements of Law and Contractual Obligations
would reasonably be expected to have a Materially Adverse Effect.
Section 7.03. Payment of Taxes and Claims, Etc. Pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and
governmental charges imposed upon it or upon its property, and (ii) all
claims (including, without limitation, claims for labor, materials,
supplies or services) which might, if unpaid, become a Lien upon its
property, unless, in each case, the validity or amount thereof is being
contested in good faith by appropriate proceedings and adequate reserves
are maintained with respect thereto.
Section 7.04. Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing
complete and accurate entries of all their respective financial and
business transactions.
Section 7.05. Visitation, Inspection, Etc. Permit, and cause
each of its Subsidiaries to permit, any representative of the Agent or any
Lender to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all at such reasonable
times and as often as the Agent or such Lender may reasonably request after
reasonable prior notice to Borrower; provided, however, that at any time
following the occurrence and during the continuance of a Default or an
Event of Default, no prior notice to Borrower shall be required.
Section 7.06. Insurance; Maintenance of Properties.
(a) Maintain or cause to be maintained with financially sound
and reputable insurers, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss
or damage of the kinds customarily insured against by reputable companies
in the same or similar businesses, such insurance to be of such types and
in such amounts, including such self-insurance and deductible provisions,
as is customary for such companies under similar circumstances; provided,
however, that in any event Borrower shall use its best efforts to maintain,
or cause to be maintained, insurance in amounts and with coverages not
materially less favorable to any Consolidated Company as in effect on the
date of this Agreement, except where the costs of maintaining such
insurance would, in the judgment of both Borrower and the Agent, be
excessive.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of Borrower may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent Borrower from discontinuing the operation or
maintenance of any such properties if such discontinuance is, in the
judgment of Borrower, desirable in the conduct of its business or the
business of any Consolidated Company.
Section 7.07. Reporting Covenants. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in
any event within 95 days after the end of each fiscal year of Borrower,
balance sheets of the Consolidated Companies as at the end of such year,
presented on a consolidated basis, and the related statements of income,
shareholders' equity, and cash flows of the Consolidated Companies for such
fiscal year, presented on a consolidated basis, setting forth in each case
in comparative form the figures for the previous fiscal year, all in
reasonable detail and accompanied by a report thereon of independent public
accountants of recognized national standing reasonably acceptable to the
Agent, which such report shall be unqualified as to going concern and scope
of audit and shall state that such financial statements present fairly in
all material respects the financial condition as at the end of such fiscal
year on a consolidated basis, and the results of operations and statements
of cash flows of the Consolidated Companies for such fiscal year in
accordance with GAAP and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(b) Quarterly Financial Statements. As soon as available and in
any event within 60 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a consolidated basis
and the related statements of income, shareholders' equity, and cash flows
of the Consolidated Companies for such fiscal quarter and for the portion
of Borrower's fiscal year ended at the end of such quarter, presented on a
consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous fiscal year, all in reasonable detail and certified by
the chief financial officer or principal accounting officer of Borrower
that such financial statements fairly present in all material respects the
financial condition of the Consolidated Companies as at the end of such
fiscal quarter on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for such fiscal
quarter and such portion of Borrower's fiscal year, in accordance with GAAP
consistently applied (subject to normal year-end audit adjustments and the
absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (a) and (b) above, a
certificate of the president, chief financial officer or principal
accounting officer of Borrower (the "Compliance Certificate") (i) to the
effect that, based upon a review of the activities of the Consolidated
Companies and such financial statements during the period covered thereby,
there exists no Event of Default and no Default under this Agreement, or if
there exists an Event of Default or a Default hereunder, specifying the
nature thereof and the proposed response thereto, and (ii) demonstrating in
reasonable detail compliance as at the end of such fiscal year or such
fiscal quarter with Section 7.08 and Sections 8.01 through 8.04;
(d) Notice of Default. Promptly after any Executive Officer of
Borrower has notice or knowledge of the occurrence of an Event of Default
or a Default, a certificate of the chief financial officer or principal
accounting officer of Borrower specifying the nature thereof and the
proposed response thereto;
(e) Litigation. Promptly after (i) the occurrence thereof,
notice of the institution of or any adverse development in any action, suit
or proceeding or any governmental investigation or any arbitration, before
any court or arbitrator or any governmental or administrative body, agency
or official, against any Consolidated Company, or any material property
thereof which might have a Materially Adverse Effect, or (ii) actual
knowledge thereof, notice of the threat of any such action, suit,
proceeding, investigation or arbitration;
(f) Environmental Notices. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action, claim
or request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any Environmental Law, or
any actual or alleged spill, leak, disposal or other release of any waste,
petroleum product, or hazardous waste or Hazardous Substance by any
Consolidated Company which could result in penalties, fines, claims or
other liabilities to any Consolidated Company in amounts in excess of
$5,000,000 individually or in the aggregate;
(g) ERISA.
(i) Promptly after the occurrence thereof with respect to
any Plan of any Consolidated Company or any ERISA Affiliate thereof,
or any trust established thereunder, notice of (x) a "reportable
event" described in Section 4043 of ERISA and the regulations issued
from time to time thereunder (other than a "reportable event" not
subject to the provisions for 30-day notice to the PBGC under such
regulations), or (y) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404 or 419 of
the Tax Code, where any such taxes, penalties or liabilities exceed or
could exceed $250,000 in the aggregate;
(ii) Promptly after such notice must be provided to the
PBGC, or to a Plan participant, beneficiary or alternative payee, any
notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or
412 of the Tax Code with respect to any Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the
intent of the PBGC or any other governmental authority to terminate a
Plan of such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon the filing
thereof with the Internal Revenue Service ("IRS") or the Department of
Labor ("DOL"), a copy of IRS Form 5500 or annual report for each Plan
of any Consolidated Company or ERISA Affiliate thereof which is
subject to Title IV of ERISA;
(v) Upon the request of the Agent, (A) true and complete
copies of any and all documents, government reports and IRS
determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports filed
with the IRS, PBGC or DOL with respect to a Plan of the Consolidated
Companies or any ERISA Affiliate thereof, or (C) a current statement
of withdrawal liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof;
(h) Liens. Promptly upon any Consolidated Company becoming
aware thereof, notice of the filing of any federal statutory Lien, tax or
other state or local government Lien or any other Lien affecting their
respective properties, other than those Liens expressly permitted by
Section 8.02;
(i) Public Filings, Etc. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Borrower to its public security holders, of all
regular and periodic reports and all registration statements and prospec
tuses (other than registration statements filed on Form S-3 of the
Securities and Exchange Commission regarding the issuance of restricted
stock in acquisitions), if any, filed by any of them with any securities ex
change, and of all press releases and other statements made available
generally to the public containing material developments in the business or
financial condition of Borrower and the other Consolidated Companies;
(j) Accountants' Reports. Promptly upon receipt thereof, copies
of all financial statements of, and all reports submitted by, independent
public accountants to Borrower in connection with each annual, interim, or
special audit of Borrower's consolidated financial statements;
(k) Burdensome Restrictions, Etc. Promptly upon the existence
or occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in Section 6.23,
(ii) failure of any Consolidated Company to hold in full force and effect
those material trademarks, service marks, patents, trade names, copyrights,
licenses and similar rights necessary in the normal conduct of its
business, and (iii) any strike, labor dispute, slow down or work stoppage
as described in Section 6.21;
(l) New Material Subsidiaries. Simultaneously with the delivery
of each Compliance Certificate, a written list of all Material Subsidiaries
formed, acquired, or created from a transfer of assets or through any other
event, during the period commencing on the Closing Date and ending on the
date on which the first Compliance Certificate is delivered, and thereafter
since the date of the most recently delivered Compliance Certificate; such
written list shall include the name of each new Material Subsidiary, its
state of incorporation, list of its officers and any other information that
the Agent shall reasonably request.
(m) Intercompany Asset Transfers. Promptly upon the occurrence
thereof, notice of the transfer of any assets from Borrower or any
Guarantor to any other Consolidated Company that is not Borrower or a
Guarantor (in any transaction or series of related transactions), excluding
sales or other transfers of assets in the ordinary course of business,
where the Asset Value of such assets is greater than $5,000,000 per
transfer;
(n) Other Information. With reasonable promptness, such other
information about the Consolidated Companies as the Agent or any Lender may
reasonably request from time to time.
Section 7.08. Financial Covenants.
(a) Working Capital. Maintain as of the last day of each fiscal
quarter, Working Capital of at least $75,000,000.
(b) Fixed Charge Coverage; Cash Flow Coverage Ratio. Maintain
as of the last day of each fiscal quarter, a minimum Fixed Charge Coverage
Ratio, calculated for the immediately preceding four fiscal quarters, of at
least 1.25:1.0, provided, however, if such Fixed Charge Coverage Ratio is
not met, the Borrower shall maintain a Cash Flow Coverage Ratio, calculated
as of the last day of each fiscal quarter, for the immediately preceding
four fiscal quarters, equal to or greater than 1.5:1.0.
(c) Funded Debt to Total Capital. Maintain as of the last day
of each fiscal quarter, a maximum ratio of Funded Debt to Total Capital, of
less than or equal to 0.60:1.0.
(d) Dividends. Borrower shall not declare or pay any dividend
on its capital stock, or make any payment to purchase, redeem, retire or
acquire any of its Subordinated Debt or capital stock or any option,
warrant, or other right to acquire such Subordinated Debt or capital stock,
other than:
(i) dividends payable solely in shares of capital stock; and
(ii) cash dividends declared and paid, and all other such
payments made, after January 29, 1993, in an aggregate amount at any
time not to exceed (x) $1,000,000, plus (y) 50% of Consolidated Net
Income (or minus 100% of Consolidated Net Loss) earned during
Borrower's fiscal year ended January 29, 1993, and thereafter (such
period to be treated as one accounting period);
provided, further, however, no such dividend or other payment may be
declared or paid pursuant to clause (ii) above unless no Default or Event
of Default exists at the time of such declaration or payment, or would
exist as a result of such declaration or payment.
Section 7.09. Notices Under Certain Other Indebtedness.
Immediately upon its receipt thereof, Borrower shall furnish the Agent a
copy of any notice received by it or any other Consolidated Company from
the holder(s) of Indebtedness referred to in Section 8.01 (or from any
trustee, agent, attorney, or other party acting on behalf of such
holder(s)) in an amount which, in the aggregate, exceeds $2,500,000, where
such notice states or claims (i) the existence or occurrence of any default
or event of default with respect to such Indebtedness under the terms of
any indenture, loan or credit agreement, debenture, note, or other document
evidencing or governing such Indebtedness, or (ii) the existence or
occurrence of any event or condition which requires or permits holder(s) of
any Indebtedness to exercise rights under any Change in Control Provision.
Borrower agrees to take such actions as may be necessary to require the
holder(s) of any Indebtedness (or any trustee or agent acting on their
behalf) incurred pursuant to documents executed or amended and restated
after the Closing Date, to furnish copies of all such notices directly to
the Agent simultaneously with the furnishing thereof to Borrower, and that
such requirement may not be altered or rescinded without the prior written
consent of the Agent.
Section 7.10. Additional Guarantors. Borrower shall cause each
new Material Subsidiary reported to the Agent and the Lenders pursuant to
Section 7.07(l) above to execute and deliver to the Agent, simultaneously
with the report given pursuant to Section 7.07(l) above, a Guaranty
Agreement, together with related documents of the kind described in Section
5.01, as appropriate, all in form and substance satisfactory to the Agent
and the Required Lenders.
Section 7.11. Financial Statements; Fiscal Year. Borrower shall
make no change in the dates of the fiscal year now employed for accounting
and reporting purposes without the prior written consent of the Required
Lenders, which consent shall not be unreasonably withheld.
Section 7.12. Ownership of Guarantors. Borrower shall maintain
its percentage of ownership existing as of the date hereof of all
Guarantors, and shall not decrease its ownership percentage in each Person
which becomes a Guarantor after the date hereof, as such ownership exists
at the time such Person becomes a Guarantor.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note
shall remain unpaid, Borrower will not and will not permit any Subsidiary
to:
Section 8.01. Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof or pursuant to
lines of credit in effect on the date hereof and described on Schedule
8.01(b);
(c) purchase money Indebtedness to the extent secured by a Lien
permitted by Section 8.02(b) provided such purchase money Indebtedness does
not exceed $10,000,000;
(d) unsecured current liabilities (other than liabilities for
borrowed money or liabilities evidenced by promissory notes, bonds or
similar instruments) incurred in the ordinary course of business and either
(i) not more than 30 days past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed liability
maintained in conformity with GAAP;
(e) the Intercompany Loans described on Schedule 6.22 and any
other loans between Consolidated Companies provided that (i) no loan or
other extension of credit may be made by a Guarantor to another
Consolidated Company that is not a Guarantor hereunder and all such loans
and extensions of credit shall not exceed $5,000,000 in the aggregate at
any one time outstanding (excluding Intercompany Loans listed on Schedule
6.22) unless otherwise agreed in writing by the Agent and the Required
Lenders; (ii) such loans or other extensions of credit are otherwise
permitted pursuant to the limitations of this Section 8.01;
(f) other Subordinated Debt in form and substance acceptable to
the Agent and the Required Lenders, and evidenced by their written consent
thereto;
(g) cash management lines of credit from financial institutions
not exceeding $15,000,000 in principal amount;
(h) Indebtedness in an amount not to exceed $80,000,000 to be
evidenced by the Company's Senior Notes due in August or September 2012, of
which (i) $40,000,000 of such Senior Notes will have an interest rate of
7.14% and a 10-year average life and (ii) $40,000,000 of such Senior Notes
will have an interest rate of 7.19% and a 12-year average life, which
Senior Notes the Company expects to issue in August 1997;
(i) a $40,000,000 interest rate hedging agreement, executed on
August 6, 1997 and to be effective on August 27, 1997, maturing on May 30,
2012, but terminable by the other party to the agreement at six month
intervals beginning May 30, 2000; and
(j) other Indebtedness not to exceed $20,000,000 at any one time
outstanding.
Section 8.02. Liens. Create, incur, assume or suffer to exist
any Lien on any of its property now owned or hereafter acquired to secure
any Indebtedness other than:
(a) Liens existing on the date hereof disclosed on Schedule 8.02
(excluding Liens securing operating leases with annual payments of less
than $100,000);
(b) any Lien on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition
cost of such property and any refinancing thereof, provided that such Lien
does not extend to any other property, and provided further that the
aggregate principal amount of Indebtedness secured by all such Liens at any
time does not exceed $20,000,000;
(c) Liens for taxes not yet due, and Liens for taxes or Liens
imposed by ERISA which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained;
(d) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created
in the ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings and with respect
to which adequate reserves are being maintained;
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money); and
(f) Liens (other than those permitted by paragraphs (a) through
(e) of this Section 8.02) encumbering assets having an Asset Value not
greater than $20,000,000 in the aggregate at any one time.
Section 8.03. Mergers, Acquisitions, Sales, Etc. Merge or
consolidate with any other Person, other than Borrower or another
Subsidiary, or sell, lease, or otherwise dispose of its accounts, property
or other assets (including capital stock of Subsidiaries), or purchase,
lease or otherwise acquire all or any substantial portion of the property
or assets (including capital stock) of any Person; provided, however, that
the foregoing restrictions on asset sales shall not be applicable to (i)
sales of equipment or other personal property being replaced by other
equipment or other personal property purchased as a capital expenditure
item, (ii) sales of accounts receivable pursuant to a securitization
program, provided further that any program costs incurred by the Borrower
in pursuing such a program shall be considered interest under this Credit
Agreement, (iii) other asset sales (including the stock of Subsidiaries)
where, on the date of execution of a binding obligation to make such asset
sale (provided that if the asset sale is not consummated within six (6)
months of such execution, then on the date of consummation of such asset
sale rather than on the date of execution of such binding obligation), the
Asset Value of asset sales occurring after the Closing Date, taking into
account the Asset Value of the proposed asset sale, would not exceed ten
percent (10%) of Borrower's Consolidated Net Worth, since the Closing Date,
and (iv) sales of inventory in the ordinary course of business; provided,
further, that the foregoing restrictions on mergers shall not apply to
mergers involving Borrower and another entity, provided Borrower is the
surviving entity, and mergers between a Subsidiary of Borrower and Borrower
or between Subsidiaries of Borrower provided that, in either case, upon
consummation of such mergers, Borrower is in compliance with the other
provisions hereof; provided, further, that the foregoing restrictions on
asset purchases shall not apply to asset purchases by Borrower to the
extent that after giving effect to such purchases, Borrower is in
compliance with Section 8.04 hereof; provided, however, that no transaction
pursuant to clauses (i), (ii) or (iii) or the second or third provisos
above shall be permitted if any Default or Event of Default otherwise
exists at the time of such transaction or would otherwise exist as a result
of such transaction.
Section 8.04. Investments, Loans, Etc. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries,
other than:
(a) Investments in Subsidiaries that are Guarantors under this
Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 7.10 after the Closing Date;
provided, however, nothing in this Section 8.04 shall be deemed to
authorize an investment pursuant to this subsection (a) in any entity that
is not a Subsidiary and a Guarantor prior to such investment;
(b) Investments in Subsidiaries, other than those Subsidiaries
that are or become Guarantors under this Agreement, or persons that
thereafter become Subsidiaries, in an aggregate amount not to exceed
$15,000,000 unless otherwise consented to in writing by the Required
Lenders;
(c) Investments in other Persons that are not, and do not
become, Subsidiaries in an aggregate amount not to exceed $25,000,000
unless otherwise consented to in writing by the Required Lenders;
(d) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency
thereof, in each case supported by the full faith and credit of the United
States and maturing within one year from the date of creation thereof;
(e) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(f) time deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by any
Lender and any office located in the United States of any bank or trust
company which is organized under the laws of the United States or any state
thereof and has total assets aggregating at least $500,000,000, including
without limitation, any such deposits in Eurodollars issued by a foreign
branch of any such bank or trust company;
(g) Investments made by Plans; and
(h) permitted Intercompany Loans on terms and conditions
acceptable to the Agent.
Section 8.05 Sale and Leaseback Transactions. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired,
and thereafter rent or lease such property or other property which any
Consolidated Company intends to use for substantially the same purpose or
purposes as the property being sold or transferred, except to the extent
that the aggregate value of all such property sold and leased back does not
exceed $5,000,000 at any one time.
Section 8.06 Transactions with Affiliates.
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in
the ordinary course of business, with any Affiliate of any Consolidated
Company (but excluding any Affiliate which is also a Consolidated Company),
other than on terms and conditions substantially as favorable to such
Consolidated Company as would be obtained by such Consolidated Company at
the time in a comparable arm's-length transaction with a Person other than
an Affiliate.
(b) Convey or transfer to any other Person (including any other
Consolidated Company) any real property, buildings, or fixtures used in the
manufacturing or production operations of any Consolidated Company, or
convey or transfer to any other Consolidated Company any other assets
(excluding conveyances or transfers in the ordinary course of business) if
at the time of such conveyance or transfer any Default or Event of Default
exists or would exist as a result of such conveyance or transfer.
Section 8.07 Optional Prepayments. Directly or indirectly,
prepay, purchase, redeem, retire, defease or otherwise acquire, or make any
optional payment on account of any principal of, interest on, or premium
payable in connection with the optional prepayment, redemption or
retirement of, any of its Indebtedness, or give a notice of redemption with
respect to any such Indebtedness, or make any payment in violation of the
subordination provisions of any Subordinated Debt, except with respect to
(i) the Obligations under this Agreement and the Notes, (ii) prepayments of
Indebtedness outstanding pursuant to revolving credit, overdraft and line
of credit facilities permitted pursuant to Section 8.01, (iii) Intercompany
Loans made or outstanding pursuant to Section 8.01, (iv) Intercompany Loans
made or outstanding pursuant to Section 8.01 upon the prior written consent
of the Agent and the Required Lenders, and (v) Subordinated Debt, in form
and substance acceptable to the Agent and the Required Lenders, as
evidenced by their written consent, issued to refinance existing
Subordinated Debt.
Section 8.08 Changes in Business. Enter into any business which
is substantially different from that presently conducted by the
Consolidated Companies taken as a whole except where the aggregate
Investment made, and other funds expended or committed with respect to such
business does not exceed $5,000,000.
Section 8.09 ERISA. Take or fail to take any action with
respect to any Plan of any Consolidated Company or, with respect to its
ERISA Affiliates, any Plans which are subject to Title IV of ERISA or to
continuation health care requirements for group health plans under the Tax
Code, including without limitation (i) establishing any such Plan, (ii)
amending any such Plan (except where required to comply with applicable
law), (iii) terminating or withdrawing from any such Plan, or (iv)
incurring an amount of unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA, or any withdrawal liability under Title IV of ERISA
with respect to any such Plan, without first obtaining the written approval
of the Agent and the Required Lenders, where such actions or failures could
result in a Materially Adverse Effect.
Section 8.10 Additional Negative Pledges. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon
any asset of any Consolidated Company, other than pursuant to (i) the terms
of any agreement, instrument or other document pursuant to which any
Indebtedness permitted by Section 8.02(b) is incurred by any Consolidated
Company, so long as such prohibition or restriction applies only to the
property or asset being financed by such Indebtedness, and (ii) any
requirement of applicable law or any regulatory authority having
jurisdiction over any of the Consolidated Companies.
Section 8.11 Limitation on Payment Restrictions Affecting
Consolidated Companies. Create or otherwise cause or suffer to exist or
become effective, any consensual encumbrance or restriction on the ability
of any Consolidated Company to (i) pay dividends or make any other
distributions on such Consolidated Company's stock, or (ii) pay any
indebtedness owed to Borrower or any other Consolidated Company, or (iii)
transfer any of its property or assets to Borrower or any other
Consolidated Company, except any consensual encumbrance or restriction
existing under the Credit Documents.
Section 8.12 Actions Under Certain Documents. Without the prior
written consent of the Agent (which consent shall not be unreasonably
withheld), modify, amend, cancel or rescind the Intercompany Loans or
Intercompany Loan Documents, or any agreements or documents evidencing or
governing Subordinated Debt or the senior Indebtedness permitted pursuant
to Section 8.01 hereof (except that a loan between Consolidated Companies
as permitted by Section 8.01 may be modified or amended so long as it
otherwise satisfies the requirements of Section 8.01), or make demand of
payment or accept payment on any Intercompany Loans permitted by Section
8.01, except that current interest accrued thereon as of the date of this
Agreement and all interest subsequently accruing thereon (whether or not
paid currently) may be paid unless a Default or Event of Default has
occurred and is continuing.
ARTICLE IX
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
Section 9.01. Payments. Borrower shall fail to make promptly
when due (including, without limitation, by mandatory prepayment) any
principal payment with respect to the Loans, or Borrower shall fail to make
within five (5) Business Days after the due date thereof any payment of
interest, fee or other amount payable hereunder;
Section 9.02. Covenants Without Notice. Borrower shall fail to
observe or perform any covenant or agreement contained in Sections 7.07(f),
7.08, 7.11, 8.01 through 8.07 and 8.09 through 8.12;
Section 9.03. Other Covenants. Borrower shall fail to observe
or perform any covenant or agreement contained in this Agreement, other
than those referred to in Sections 9.01 and 9.02, and, if capable of being
remedied, such failure shall remain unremedied for 30 days after the
earlier of (i) Borrower's obtaining knowledge thereof, or (ii) written
notice thereof shall have been given to Borrower by the Agent or any
Lender;
Section 9.04. Representations. Any representation or warranty
made or deemed to be made by Borrower or any other Credit Party or by any
of its officers under this Agreement or any other Credit Document
(including the Schedules attached thereto), or any certificate or other
document submitted to the Agent or the Lenders by any such Person pursuant
to the terms of this Agreement or any other Credit Document, shall be
incorrect in any material respect when made or deemed to be made or
submitted;
Section 9.05. Non-Payments of Other Indebtedness. Any
Consolidated Company shall fail to make when due (whether at stated
maturity, by acceleration, on demand or otherwise, and after giving effect
to any applicable grace period) any payment of principal of or interest on
any Indebtedness (other than the Obligations) exceeding $1,000,000 in the
aggregate;
Section 9.06. Defaults Under Other Agreements. Any Consolidated
Company shall fail to observe or perform within any applicable grace period
any covenants or agreements contained in any agreements or instruments
relating to any of its Indebtedness exceeding $1,000,000 in the aggregate,
or any other event shall occur if the effect of such failure or other event
is to accelerate, or to permit the holder of such Indebtedness or any other
Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated
maturity;
Section 9.07. Bankruptcy. Borrower or any other Consolidated
Company shall commence a voluntary case concerning itself under the
Bankruptcy Code or an involuntary case for bankruptcy is commenced against
any Consolidated Company and the petition is not controverted within 10
days, or is not dismissed within 60 days, after commencement of the case;
or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or any substantial part of the property of any
Consolidated Company; or any Consolidated Company commences proceedings of
its own bankruptcy or to be granted a suspension of payments or any other
proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of
any jurisdiction, whether now or hereafter in effect, relating to any
Consolidated Company or there is commenced against any Consolidated Company
any such proceeding which remains undismissed for a period of 60 days; or
any Consolidated Company is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is entered;
or any Consolidated Company suffers any appointment of any custodian or the
like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall state that it is unable to
pay, or shall be unable to pay, its debts generally as they become due; or
any Consolidated Company shall call a meeting of its creditors with a view
to arranging a composition or adjustment of its debts; or any Consolidated
Company shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or any corporate
action is taken by any Consolidated Company for the purpose of effecting
any of the foregoing;
Section 9.08. ERISA. A Plan of a Consolidated Company or a Plan
subject to Title IV of ERISA of any of its ERISA Affiliates:
(i) shall fail to be funded in accordance with the minimum
funding standard required by applicable law, the terms of
such Plan, Section 412 of the Tax Code or Section 302 of
ERISA for any plan year or a waiver of such standard is
sought or granted with respect to such Plan under applicable
law, the terms of such Plan or Section 412 of the Tax Code
or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of
such Plan; or
(iii) shall require a Consolidated Company to provide
security under applicable law, the terms of such Plan,
Section 401 or 412 of the Tax Code or Section 306 or 307 of
ERISA; or
(iv) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of
ERISA;
and there shall result from any such failure, waiver, termination or other
event a liability to the PBGC or a Plan that would have a Materially
Adverse Effect;
Section 9.09. Money Judgment. A judgment or order for the
payment of money in excess of $1,000,000 or otherwise having a Materially
Adverse Effect shall be rendered against Borrower or any other Consolidated
Company and such judgment or order shall continue unsatisfied (in the case
of a money judgment) and in effect for a period of 30 days during which
execution shall not be effectively stayed or deferred (whether by action of
a court, by agreement or otherwise);
Section 9.10. Ownership of Credit Parties and Pledged Entities.
If Borrower shall at any time fail to own and control the required
percentage of the voting stock of any Guarantor, either directly or indi
rectly through a wholly-owned Subsidiary of Borrower;
Section 9.11. Change in Control of Borrower. (a) Any "person"
or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act), other than the Xxxxxx Family shall become the "beneficial
owner(s)" (as defined in said Rule 13d-3) of more than twenty-five percent
(25%) of the shares of the outstanding common stock of Borrower entitled to
vote for members of Borrower's board of directors, or (b) any event or
condition shall occur or exist which, pursuant to the terms of any change
in control provision, requires or permits the holder(s) of Indebtedness of
any Consolidated Company to require that such Indebtedness be redeemed,
repurchased, defeased, prepaid or repaid, in whole or in part, or the
maturity of such Indebtedness to be accelerated in any respect;
Section 9.12. Default Under Other Credit Documents. There shall
exist or occur any "Event of Default" as provided under the terms of any
other Credit Document, or any Credit Document ceases to be in full force
and effect or the validity or enforceability thereof is disaffirmed by or
on behalf of Borrower or any other Credit Party, or at any time it is or
becomes unlawful for Borrower or any other Credit Party to perform or
comply with its obligations under any Credit Document, or the obligations
of Borrower or any other Credit Party under any Credit Document are not or
cease to be legal, valid and binding on Borrower or any such Credit Party;
Section 9.13. Attachments. An attachment or similar action
shall be made on or taken against any of the assets of any Consolidated
Company with an Asset Value exceeding $3,000,000 in aggregate and is not
removed, suspended or enjoined within 30 days of the same being made or any
suspension or injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of
Default shall then be continuing, the Agent may, and upon the written or
telex request of the Required Lenders, shall, by written notice to
Borrower, take any or all of the following actions, without prejudice to
the rights of the Agent, any Lender or the holder of any Note to enforce
its claims against Borrower or any other Credit Party: (i) declare all
Commitments terminated, whereupon the pro rata Commitments of each Lender
shall terminate immediately and any commitment fee shall forthwith become
due and payable without any other notice of any kind; and (ii) declare the
principal of and any accrued interest on the Loans, and all other
Obligations owing hereunder, to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by Borrower; provided,
that, if an Event of Default specified in Section 9.07 shall occur, the
result which would occur upon the giving of written notice by the Agent to
any Credit Party, as specified in clauses (i) and (ii) above, shall occur
automatically without the giving of any such notice.
ARTICLE X
THE AGENT
Section 10.01. Appointment of Agent. Each Lender hereby
designates SunTrust Central Florida, National Association as the "Agent" to
administer all matters concerning the Loans and to act as herein specified.
Each Lender hereby irrevocably authorizes, and each holder of any Note by
the acceptance of a Note shall be deemed irrevocably to authorize, the
Agent to take such actions on its behalf under the provisions of this
Agreement, the other Credit Documents, and all other instruments and
agreements referred to herein or therein, and to exercise such powers and
to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof and
such other powers as are reasonably incidental thereto. The Agent may
perform any of its duties hereunder by or through its agents or employees.
The provisions of this Section 10.01 are solely for the benefit of the
Agent, and Borrower and the other Consolidated Companies shall not have any
rights as third party beneficiaries of any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall
act solely as agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligations towards or relationship of agency or
trust with or for the Borrower and the other Consolidated Companies.
Section 10.02. Nature of Duties of Agent. The Agent shall have
no duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. Neither the Agent nor any of its
officers, directors, employees or agents shall be liable for any action
taken or omitted by it as such hereunder or in connection herewith, unless
caused by its or their gross negligence or willful misconduct. The duties
of the Agent shall be ministerial and administrative in nature; the Agent
shall not have by reason of this Agreement a fiduciary relationship in
respect of any Lender; and nothing in this Agreement, express or implied,
is intended to or shall be so construed as to impose upon the Agent any
obligations in respect of this Agreement or the other Credit Documents
except as expressly set forth herein.
Section 10.03. Lack of Reliance on the Agent.
(a) Independently and without reliance upon the Agent, each
Lender, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Credit Parties in connection with the taking or not taking
of any action in connection herewith, and (ii) its own appraisal of the
creditworthiness of the Credit Parties, and, except as expressly provided
in this Agreement, the Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit
or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times
thereafter.
(b) The Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or
in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Agreement,
the Notes, the Guaranty Agreements, or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement,
the Notes, the Guaranty Agreements, or the other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or the
existence or possible existence of any Default or Event of Default;
provided, however, to the extent that the Agent has been advised that a
Lender has not received any information formally delivered to the Agent
pursuant to Section 7.07, the Agent shall deliver or cause to be delivered
such information to such Lender.
Section 10.04. Certain Rights of the Agent. If the Agent shall
request instructions from the Required Lenders with respect to any action
or actions (including the failure to act) in connection with this
Agreement, the Agent shall be entitled to refrain from such act or taking
such act, unless and until the Agent shall have received instructions from
the Required Lenders; and the Agent shall not incur liability in any Person
by reason of so refraining. Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Agent as a result of
the Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
Section 10.05. Reliance by Agent. The Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person. The
Agent may consult with legal counsel (including counsel for any Credit
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the advice of such counsel, accountants or
experts.
Section 10.06. Indemnification of Agent. To the extent the
Agent is not reimbursed and indemnified by the Credit Parties, each Lender
will reimburse and indemnify the Agent, ratably according to the respective
amounts of the Loans outstanding under all Facilities (or if no amounts are
outstanding, ratably in accordance with the Total Commitments), in either
case, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the
Agent in performing its duties hereunder, in any way relating to or arising
out of this Agreement or the other Credit Documents; provided that no
Lender shall be liable to the Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct.
Section 10.07. The Agent in Its Individual Capacity. With
respect to its obligation to lend under this Agreement, the Loans made by
it and the Notes issued to it, the Agent shall have the same rights and
powers hereunder as any other Lender or holder of a Note and may exercise
the same as though it were not performing the duties specified herein; and
the terms "Lenders", "Required Lenders", "holders of Notes", or any similar
terms shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity. The Agent may accept deposits from, lend
money to, and generally engage in any kind of banking, trust, financial
advisory or other business with the Consolidated Companies or any affiliate
of the Consolidated Companies as if it were not performing the duties
specified herein, and may accept fees and other consideration from the
Consolidated Companies for services in connection with this Agreement and
otherwise without having to account for the same to the Lenders.
Section 10.08. Holders of Notes. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have
been filed with the Agent. Any request, authority or consent of any Person
who, at the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
Section 10.09. Successor Agent
(a) The Agent may resign at any time by giving written notice
thereof to the Lenders and Borrower and may be removed at any time with or
without cause by the Required Lenders; provided, however, the Agent may not
resign or be removed until a successor Agent has been appointed and shall
have accepted such appointment. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent subject
to Borrower's prior written approval. If no successor Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
subject to Borrower's prior written approval, which shall be a bank which
maintains an office in the United States, or a commercial bank organized
under the laws of the United States of America or any State thereof, or any
Affiliate of such bank, having a combined capital and surplus of at least
$100,000,000. If at any time SunTrust Bank, Central Florida is removed as
a Lender, SunTrust Bank, Central Florida shall simultaneously resign as
Agent.
(b) Upon the acceptance of any appointment as the Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article X shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was an Agent under this Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, telecopy or similar teletransmission or writing) and shall be
given to such party at its address or applicable teletransmission number
set forth on the signature pages hereof, or such other address or
applicable teletransmission number as such party may hereafter specify by
notice to the Agent and Borrower. Each such notice, request or other com
munication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the
appropriate answerback is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, (iii) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section
and the appropriate confirmation is received, or (iv) if given by any other
means (including, without limitation, by air courier), when delivered or
received at the address specified in this Section; provided that notices to
the Agent shall not be effective until received.
Section 11.02. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the other Credit Documents, nor consent to
any departure by any Credit Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided
that no amendment, waiver or consent shall, unless in writing and signed by
all the Lenders do any of the following: (i) waive any of the conditions
specified in Section 5.01 or 5.02, (ii) increase the Commitments or other
contractual obligations to Borrower under this Agreement, (iii) reduce the
principal of, or interest on, the Notes or any fees hereunder, (iv)
postpone any date fixed for the payment in respect of principal of, or
interest on, the Notes or any fees hereunder, (v) change the percentage of
the Commitments or of the aggregate unpaid principal amount of the Notes,
or the number or identity of Lenders which shall be required for the
Lenders or any of them to take any action hereunder, (vi) release any
Guarantor from its obligations under any Guaranty Agreement, (vii) modify
the definition of "Required Lenders," or (viii) modify this Section 11.02.
Notwithstanding the foregoing, no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Lenders
required hereinabove to take such action, affect the rights or duties of
the Agent under this Agreement or under any other Credit Document.
Section 11.03. No Waiver; Remedies Cumulative. No failure or
delay on the part of the Agent, any Lender or any holder of a Note in
exercising any right or remedy hereunder or under any other Credit
Document, and no course of dealing between any Credit Party and the Agent,
any Lender or the holder of any Note shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy hereunder or
under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right or remedy hereunder or
thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Agent, any
Lender or the holder of any Note would otherwise have. No notice to or
demand on any Credit Party not required hereunder or under any other Credit
Document in any case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or constitute a waiver
of the rights of the Agent, the Lenders or the holder of any Note to any
other or further action in any circumstances without notice or demand.
Section 11.04. Payment of Expenses, Etc. Borrower shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of
the Agent in the administration (both before and after the execution
hereof and including reasonable expenses actually incurred relating to
advice of counsel as to the rights and duties of the Agent and the
Lenders with respect thereto) of, and in connection with the
preparation, execution and delivery of, preservation of rights under,
enforcement of, and, after a Default or Event of Default, refinancing,
renegotiation or restructuring of, this Agreement and the other Credit
Documents and the documents and instruments referred to therein, and
any amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees actually incurred and disbursements of
counsel for the Agent), and in the case of enforcement of this
Agreement or any Credit Document after an Event of Default, all such
reasonable, out-of-pocket costs and expenses (including, without
limitation, the reasonable fees actually incurred and disbursements of
counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.07(b), pay and hold each of the Lenders
harmless from and against any and all present and future stamp,
documentary, and other similar Taxes with respect to this Agreement,
the Notes and any other Credit Documents, any collateral described
therein, or any payments due thereunder, and save each Lender harmless
from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such Taxes; and
(iii) indemnify the Agent, the Agent and each Lender, and their
respective officers, directors, employees, representatives and agents
from, and hold each of them harmless against, any and all costs,
losses, liabilities, claims, damages or expenses incurred by any of
them (whether or not any of them is designated a party thereto) (an
"Indemnitee") arising out of or by reason of any investigation,
litigation or other proceeding related to any actual or proposed use
of the proceeds of any of the Loans or any Credit Party's entering
into and performing of the Agreement, the Notes, or the other Credit
Documents, including, without limitation, the reasonable fees actually
incurred and disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation, litigation or
other proceeding; provided, however, Borrower shall not be obligated
to indemnify any Indemnitee for any of the foregoing arising out of
such Indemnitee's gross negligence or willful misconduct;
(iv) without limiting the indemnities set forth in subsection
(iii) above, indemnify each Indemnitee for any and all expenses and
costs (including without limitation, remedial, removal, response,
abatement, cleanup, investigative, closure and monitoring costs),
losses, claims (including claims for contribution or indemnity and
including the cost of investigating or defending any claim and whether
or not such claim is ultimately defeated, and whether such claim arose
before, during or after any Credit Party's ownership, operation, pos
session or control of its business, property or facilities or before,
on or after the date hereof, and including also any amounts paid
incidental to any compromise or settlement by the Indemnitee or
Indemnitees to the holders of any such claim), lawsuits, liabilities,
obligations, actions, judgments, suits, disbursements, encumbrances,
liens, damages (including without limitation damages for contamination
or destruction of natural resources), penalties and fines of any kind
or nature whatsoever (including without limitation in all cases the
reasonable fees actually incurred, other charges and disbursements of
counsel in connection therewith) incurred, suffered or sustained by
that Indemnitee based upon, arising under or relating to Environmental
Laws based on, arising out of or relating to in whole or in part, the
existence or exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Credit Document or any related
documents (but excluding those incurred, suffered or sustained by any
Indemnitee as a result of any action taken by or on behalf of the
Lenders with respect to any Subsidiary of Borrower (or the assets
thereof) owned or controlled by the Lenders.
If and to the extent that the obligations of Borrower under this Section
11.04 are unenforceable for any reason, Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
Section 11.05. Right of Setoff. In addition to and not in
limitation of all rights of offset that any Lender or other holder of a
Note may have under applicable law, each Lender or other holder of a Note
shall, upon the occurrence of any Event of Default and whether or not such
Lender or such holder has made any demand or any Credit Party's obligations
are matured, have the right to appropriate and apply to the payment of any
Credit Party's obligations hereunder and under the other Credit Documents,
all deposits of any Credit Party (general or special, time or demand,
provisional or final) then or thereafter held by and other indebtedness or
property then or thereafter owing by such Lender or other holder to any
Credit Party, whether or not related to this Agreement or any transaction
hereunder. Each Lender shall promptly notify Borrower of any offset
hereunder.
Section 11.06. Benefit of Agreement.
(a) This 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 Borrower may not assign or transfer any
of its interest hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for
the account of, any of its branch offices or the office of an Affiliate of
such Lender.
(c) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of
any of its Commitments and the Loans at the time owing to it and the Notes
held by it) to any Eligible Assignee; provided, however, that (i) the Agent
and Borrower must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed) unless such
assignment is an Affiliate of the assigning Lender, (ii) the amount of the
Commitments, in the case of the Revolving Loan Commitments and the Line of
Credit Commitments, or Loans, in the case of assignment of Loans, of the
assigning Lender subject to each assignment (determined as of the date the
assignment and acceptance with respect to such assignment is delivered to
the Agent) shall not be less than $5,000,000, and (iii) the parties to each
such assignment shall execute and deliver to the Agent an Assignment and
Acceptance, together with a Note or Notes subject to such assignment and,
unless such assignment is to an Affiliate of such Lender, a processing and
recordation fee of $2500. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any
Lender or the Agent in connection with such assignment. From and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution thereof,
the assignee thereunder shall be a party hereto and to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement. Notwithstanding the
foregoing, the assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of Commitments or
Loans, as the case may be, of $5,000,000; provided, however, no such
minimum amount shall be required with respect to any such assignment made
at any time there exists an Event of Default hereunder. Within five (5)
Business Days after receipt of the notice and the Assignment and
Acceptance, Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for the surrendered Note or Notes, a new Note or Notes
to the order of such assignee in a principal amount equal to the applicable
Commitments or Loans assumed by it pursuant to such Assignment and
Acceptance and new Note or Notes to the assigning Lender in the amount of
its retained Commitment or Commitments or amount of its retained Loans.
Such new Note or Notes shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note or Notes, shall be
dated the date of the surrendered Note or Notes which they replace, and
shall otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Borrower, the Agent,
sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments in the Loans owing to it and the Notes held
by it), provided, however, that (i) no Lender may sell a participation in
its aggregate Commitments or Loans (after giving effect to any permitted
assignment hereof) in an amount in excess of fifty percent (50%) of such
aggregate Commitments or Loans, provided, however, sales of participations
to an Affiliate of such Lender shall not be included in such calculation;
provided, however, no such maximum amount shall be applicable to any such
participation sold at any time there exists an Event of Default hereunder,
(ii) such Lender's obligations under this Agreement shall remain unchanged,
(iii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, and (iv) the participating
bank or other entity shall not be entitled to the benefit (except through
its selling Lender) of the cost protection provisions contained in Article
IV of this Agreement, and (v) Borrower and the Agent and other Lenders
shall continue to deal solely and directly with each Lender in connection
with such Lender's rights and obligations under this Agreement and the
other Credit Documents, and such Lender shall retain the sole right to
enforce the obligations of Borrower relating to the Loans and to approve
any amendment, modification or waiver of any provisions of this Agreement.
Any Lender selling a participation hereunder shall provide prompt written
notice to Borrower of the name of such participant.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
proposed assignee or participant any information relating to Borrower or
the other Consolidated Companies furnished to such Lender by or on behalf
of Borrower or any other Consolidated Company. With respect to any
disclosure of confidential, non-public, proprietary information, such
proposed assignee or participant shall agree to use the information only
for the purpose of making any necessary credit judgments with respect to
this credit facility and not to use the information in any manner
prohibited by any law, including without limitation, the securities laws of
the United States. The proposed participant or assignee shall agree not to
disclose any of such information except (i) to directors, employees,
auditors or counsel to whom it is necessary to show such information, each
of whom shall be informed of the confidential nature of the information,
(ii) in any statement or testimony pursuant to a subpoena or order by any
court, governmental body or other agency asserting jurisdiction over such
entity, or as otherwise required by law (provided prior notice is given to
Borrower and the Agent unless otherwise prohibited by the subpoena, order
or law), and (iii) upon the request or demand of any regulatory agency or
authority with proper jurisdiction. The proposed participant or assignee
shall further agree to return all documents or other written material and
copies thereof received from any Lender, the Agent or Borrower relating to
such confidential information unless otherwise properly disposed of by such
entity.
(f) Any Lender may at any time assign all or any portion of its
rights in this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release the Lender from any of
its obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.07(b) have been
levied or imposed so as to require withholdings or deductions by Borrower
and payment by Borrower of additional amounts to any Lender as a result
thereof, (ii) any Lender shall make demand for payment of any material
additional amounts as compensation for increased costs pursuant to Section
4.10 or for its reduced rate of return pursuant to Section 4.16, or (iii)
any Lender shall decline to consent to a modification or waiver of the
terms of this Agreement or the other Credit Documents requested by
Borrower, then and in such event, upon request from Borrower delivered to
such Lender and the Agent, such Lender shall assign, in accordance with the
provisions of Section 11.06(c), all of its rights and obligations under
this Agreement and the other Credit Documents to another Lender or an
Eligible Assignee selected by Borrower, in consideration for the payment by
such assignee to the Lender of the principal of, and interest on, the
outstanding Loans accrued to the date of such assignment, and the
assumption of such Lender's Total Commitment hereunder, together with any
and all other amounts owing to such Lender under any provisions of this
Agreement or the other Credit Documents accrued to the date of such
assignment.
Section 11.07. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE
SUPERIOR COURT OF XXXXXX COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE
OF GEORGIA OR OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF
GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND BORROWER HEREBY IR
REVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) BORROWER HEREBY IRREVOCABLY DESIGNATES THE CORPORATION
SERVICE COMPANY, ATLANTA, GEORGIA, AS ITS DESIGNEE, APPOINTEE AND LOCAL
AGENT TO RECEIVE, FOR AND ON BEHALF OF BORROWER, SERVICE OF PROCESS IN SUCH
RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR THE NOTES OR ANY DOCUMENT RELATED THERETO. IT IS
UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH LOCAL AGENT WILL BE
PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY THE SERVER OF SUCH PROCESS BY
MAIL TO BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, BUT
THE FAILURE OF BORROWER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY
THE SERVICE OF SUCH PROCESS. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS 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 BORROWER AT ITS SAID ADDRESS, SUCH SERVICE TO BE
COME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Agent, Agent,
any Lender, any holder of a Note or any Credit Party to serve process in
any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Borrower in any other jurisdiction.
Section 11.08. Independent Nature of Lenders' Rights. The
amounts payable at any time hereunder to each Lender shall be a separate
and independent debt, and each Lender shall be entitled to protect and
enforce its rights pursuant to this Agreement and its Notes, and it shall
not be necessary for any other Lender to be joined as an additional party
in any proceeding for such purpose.
Section 11.09. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
Section 11.10. Effectiveness; Survival.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which all of the parties hereto shall have signed a
counterpart hereof (whether the same or different counterparts) and shall
have delivered the same to the Agent pursuant to Section 11.01 or, in the
case of the Lenders, shall have given to the Agent written or telex notice
(actually received) that the same has been signed and mailed to them.
(b) The obligations of Borrower under Sections 4.07(b), 4.10,
4.12, 4.13, 4.16, and 11.04 hereof shall survive for ninety (90) days after
the payment in full of the Notes after the Final Maturity Date. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement, the other Credit
Documents, and such other agreements and documents, the making of the Loans
hereunder, and the execution and delivery of the Notes.
Section 11.11. Severability. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be
invalid, illegal or unenforceable, in whole or in part, in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
Section 11.12. Independence of Covenants. All covenants
hereunder shall be given independent effect so that if a particular action
or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise within the
limitation of, another covenant, shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or condition exists.
Section 11.13. Change in Accounting Principles, Fiscal Year or
Tax Laws. If (i) any preparation of the financial statements referred to
in Section 7.07 hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified Public
Accounts (or successors thereto or agencies with similar functions) (other
than changes mandated by FASB 106) result in a material change in the
method of calculation of financial covenants, standards or terms found in
this Agreement, (ii) there is any change in Borrower's fiscal quarter or
fiscal year, or (iii) there is a material change in federal tax laws which
materially affects any of the Consolidated Companies' ability to comply
with the financial covenants, standards or terms found in this Agreement,
Borrower and the Required Lenders agree to enter into negotiations in order
to amend such provisions so as to equitably reflect such changes with the
desired result that the criteria for evaluating any of the Consolidated
Companies' financial condition shall be the same after such changes as if
such changes had not been made. Unless and until such provisions have been
so amended, the provisions of this Agreement shall govern.
Section 11.14. Headings Descriptive; Entire Agreement. The
headings of the several sections and subsections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning
or construction of any provision of this Agreement. This Agreement, the
other Credit Documents, and the agreements and documents required to be
delivered pursuant to the terms of this Agreement constitute the entire
agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements,
representations and understandings related to such subject matters.
Section 11.15. Time is of the Essence. Time is of the essence
in interpreting and performing this Agreement and all other Credit
Documents.
Section 11.16. Usury. It is the intent of the parties hereto
not to violate any federal or state law, rule or regulation pertaining
either to usury or to the contracting for or charging or collecting of
interest, and Borrower and Lenders agree that, should any provision of this
Agreement or of the Notes, or any act performed hereunder or thereunder,
violate any such law, rule or regulation, then the excess of interest
contracted for or charged or collected over the maximum lawful rate of
interest shall be applied to the outstanding principal indebtedness due to
Lenders by Borrower under this Agreement.
Section 11.17. Construction. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that
the court interpreting or construing the same shall not apply a presumption
that the terms hereof shall be more strictly construed against one party by
reason of the rule of construction that a document is to be more strictly
construed against the party who itself or through its agents prepared the
same, it being agreed that Borrower, the Agent, the Lenders and their
respective agents have participated in the preparation hereof.
Section 11.18. Effect of Amendment and Restatement. Upon the
effectiveness of this Agreement on the Closing Date pursuant to Section
5.01: (a) the terms and conditions of the Original Credit Agreement shall
be amended as set forth herein and, as so amended, shall be restated in
their entirety, but only with respect to the rights, duties and obligations
between the Lenders, the Agent, the Agent and Borrower accruing from and
after the Closing Date; (b) all "Revolving Loans" and "Line of Credit
Loans" outstanding under the Original Credit Agreement shall be deemed to
be Revolving Loans and Line of Credit Loans, respectively, outstanding
under this Agreement, but shall be allocated among the Lenders based on
their respective Pro Rata Shares of the Commitments set forth on the
signature pages to this Agreement; (c) all indemnification obligations of
Borrower under the Original Credit Agreement and other Credit Documents (as
defined in the Original Credit Agreement) shall survive the execution and
delivery of this Agreement and shall continue in full force and effect for
the benefit of Lenders and any other Person indemnified under the Original
Credit Agreement or any other Credit Document (as defined in the Original
Credit Agreement) at any time prior to the Closing Date; (d) the execution,
delivery and effectiveness of this Agreement shall not operate as a waiver
of any right, power or remedy of the Agent, the Agent or the Lenders under
the Original Credit Agreement, nor constitute a waiver of any covenant,
agreement or obligation under the Original Credit Agreement, except to the
extent that such covenant agreement or obligation is no longer set forth
herein or is modified hereby; and (e) any and all references in the Credit
Documents to the Original Credit Agreement shall, without further action of
the parties, be deemed a reference to the Original Credit Agreement, as
amended and restated by this Agreement, and as this Agreement shall be
further amended or amended and restated from time to time hereafter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in Atlanta, Georgia, by their duly
authorized officers as of the day and year first above written.
BORROWER:
XXXXXX SUPPLY, INC.
Address for Notices: /s/ J. Xxxxxxx Xxxx
00 X. Xxxxxx Xxxxxx J. Xxxxxxx Xxxx
Xxxxx 000 Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxx /s/ Xxxxxxxx X. Xxxxxxxxxxx
Xxxxxxxx Xxxxxxxxxxx
Secretary
[CORPORATE SEAL]
Address for Notices: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
Agent
000 X. Xxxxxx Xxxxxx
0xx Xxxxx By: /s/ Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx Title: First Vice President
By: ______________________________
Telecopy No. 407/237-6894 Title: ___________________________
Payment Office:
000 X. Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
________________________________
Revolving Loan Commitment: $36,111,114
Pro Rata Share of Revolving Loan Commitment: 27.7778%
Line of Credit Commitment: $13,888,886
Pro Rata Share of Line of Credit Commitment: 27.7778%
Address for Notices: NATIONSBANK, N.A.
000 X. Xxxxxx Xxxxx, 0xx Xx. By: /s/ Miles X. Xxxxxxx III
Xxxxx, Xxxxxxx 00000
Attn: Mr. Miles Xxxxxxx Title: Senior Vice President
Telecopy No. 813/224-5948
Payment Office:
NationsBank, N.A.
1 Independence Center
00xx Xxxxx
XXX-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
________________________________
Revolving Loan Commitment: $21,666,666
Pro Rata Share of Revolving Loan Commitment: 16.6667%
Line of Credit Commitment:$8,333,334
Pro Rata Share of Line of Credit Commitment: 16.6667%
Address for Notices: FIRST UNION NATIONAL BANK
00 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000 By: /s/ Xx Xxxxxx
Attn: Xx. Xxxx Xxxxxx
Title: Vice President
Telecopy No. 407/649-5732
Payment Office:
00 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
________________________________
Revolving Loan Commitment: $21,666,666
Pro Rata Share of Revolving Loan Commitment: 16.6667%
Line of Credit Commitment: $8,333,334
Pro Rata Share of Line of Credit Commitment: 16.6667%
Address for Notices: SOUTHTRUST BANK, NATIONAL
ASSOCIATION
000-0xx Xxxxxx Xxxxx,
Xxxxx 000 By: /s/ Xxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Mr. Xxxxxx Xxxxxxx Title: Vice President
Telecopy No. 813/898-5319
Payment Office:
000 Xxxxx 00xx Xxxxxx
XX Banking, 9th Floor
Xxxxxxxxxx, Xxxxxxx 00000
________________________________
Revolving Loan Commitment: $25,277,777
Pro Rata Share of Revolving Loan Commitment: 19.4444%
Line of Credit Commitment: $9,722,223
Pro Rata Share of Line of Credit Commitment: 19.4444%
Address for Notices: XXXXXXX BANK, N.A.
000 Xxxxx Xxxxxx Xxx. By: /s/ Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000 Title: Vice President
Attn: Xx. Xxxx Xxxxxx
Telecopy No. (000) 000-0000
Payment Office:
000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
_______________________________
Revolving Loan Commitment: $14,444,444
Pro Rata Share of Revolving Loan Commitment: 11.1111%
Line of Credit Commitment: $5,555,556
Pro Rata Share of Line of Credit Commitment: 11.1111%
Address for Notices: PNC BANK, KENTUCKY, INC.
8th Floor By: /s/ Xxxxx X. Xxxx
000 Xxxx Xxxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxx 00000 Title: Vice President
Attn: Xx. Xxx Xxxx
Telecopy No. (000) 000-0000
Payment Office:
8th Floor
000 Xxxx Xxxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx Xxxx
________________________________
Revolving Loan Commitment: $10,833,333
Pro Rata Share of Revolving Loan Commitment: 8.3333%
Line of Credit Commitment: $4,166,667
Pro Rata Share of Line of Credit Commitment: 8.3333%
