$25,000,000
CREDIT AGREEMENT
dated as of
October 25, 1995
among
BLESSINGS CORPORATION
The Banks Listed Herein
and
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
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TABLE OF CONTENTS
CREDIT AGREEMENT
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions...................................................1
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SECTION 1.02. Accounting Terms and Determinations..........................11
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SECTION 1.03. Use of Defined Terms.........................................11
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SECTION 1.04. Terminology..................................................11
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SECTION 1.05. References...................................................11
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ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Make Loans....................................11
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SECTION 2.02. Method of Borrowing Loans....................................12
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SECTION 2.03. Notes........................................................13
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SECTION 2.04. Maturity of Loans............................................14
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SECTION 2.05. Interest Rates...............................................14
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SECTION 2.06. Fees.........................................................16
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SECTION 2.07. Optional Termination or Reduction of Commitments.............17
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SECTION 2.08. Mandatory Reduction and Termination of Commitments...........17
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SECTION 2.09. Optional Prepayments.........................................18
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SECTION 2.10. Mandatory Prepayments........................................18
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SECTION 2.11. General Provisions as to Payments............................18
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SECTION 2.12. Computation of Interest and Fees.............................19
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ARTICLE III
CONDITIONS TO CLOSING AND BORROWINGS
SECTION 3.01. Conditions to Closing........................................19
SECTION 3.02. Conditions to All Borrowings.................................20
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power................................20
SECTION 4.02. Corporate and Governmental Authorization; No Contravention...21
SECTION 4.03. Binding Effect...............................................21
SECTION 4.04. Financial Information........................................21
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SECTION 4.05. Litigation...................................................21
SECTION 4.06. Compliance with ERISA........................................21
SECTION 4.07. Taxes........................................................21
SECTION 4.08. Subsidiaries.................................................22
SECTION 4.09. Not an Investment Company....................................22
SECTION 4.10 Public Utility Holding Company Act............................22
SECTION 4.11. Ownership of Property; Liens.................................22
SECTION 4.12. No Default...................................................22
SECTION 4.13. Full Disclosure..............................................22
SECTION 4.14. Environmental Matters.......................................22
SECTION 4.15. Compliance with Laws.........................................23
SECTION 4.16. Capital Stock................................................23
SECTION 4.17. Margin Stock.................................................23
SECTION 4.18. Insolvency...................................................23
ARTICLE V
COVENANTS
SECTION 5.01. Information..................................................24
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SECTION 5.02. Inspection of Property, Books and Records....................25
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SECTION 5.03. Minimum Consolidated Tangible Net Worth......................25
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SECTION 5.04. Ratio of Funded Debt to Total Capitalization.................25
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SECTION 5.05. Ratio of Funded Debt to EBITDA...............................26
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SECTION 5.06. Loans or Advances............................................26
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SECTION 5.07. Investments..................................................26
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SECTION 5.08. Negative Pledge..............................................26
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SECTION 5.09. Maintenance of Existence.....................................27
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SECTION 5.10. Dissolution..................................................27
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SECTION 5.11. Consolidations, Mergers and Sales of Assets..................27
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SECTION 5.12. Use of Proceeds..............................................28
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SECTION 5.13. Compliance with Laws; Payment of Taxes.......................28
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SECTION 5.14. Insurance....................................................28
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SECTION 5.15. Change in Fiscal Year........................................28
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SECTION 5.16. Maintenance of Property......................................28
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SECTION 5.17. Environmental Notices........................................28
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SECTION 5.18. Environmental Matters........................................28
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SECTION 5.19. Environmental Release........................................29
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SECTION 5.20. Guaranty of Significant Domestic Subsidiaries...............29
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ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default............................................29
SECTION 6.02. Notice of Default............................................32
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ARTICLE VII
THE AGENT
SECTION 7.01. Appointment, Powers and Immunities...........................32
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SECTION 7.02. Reliance by Agent............................................33
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SECTION 7.03. Defaults.....................................................33
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SECTION 7.04. Rights of Agent and its Affiliates as a Bank.................33
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SECTION 7.05. Indemnification..............................................34
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SECTION 7.06. CONSEQUENTIAL DAMAGES........................................34
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SECTION 7.07. Payee of Note Treated as Owner
SECTION 7.08. Non-Reliance on Agent and Other Banks........................34
SECTION 7.09. Failure to Act...............................................35
SECTION 7.10. Resignation or Removal of Agent..............................35
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.....35
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SECTION 8.02. Illegality...................................................36
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SECTION 8.03. Increased Cost and Reduced Return............................36
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SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans...37
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SECTION 8.05. Compensation.................................................38
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices......................................................39
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SECTION 9.02. No Waivers...................................................39
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SECTION 9.03. Expenses; Documentary Taxes; Indemnification.................39
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SECTION 9.04. Setoffs; Sharing of Set-Offs.................................40
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SECTION 9.05. Amendments and Waivers.......................................40
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SECTION 9.06. Margin Stock Collateral......................................41
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SECTION 9.07. Successors and Assigns.......................................41
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SECTION 9.08. Confidentiality..............................................43
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SECTION 9.09. Representation by Banks......................................43
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SECTION 9.10. Obligations Several..........................................43
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SECTION 9.11. Survival of Certain Obligations..............................43
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SECTION 9.12. Georgia Law..................................................44
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SECTION 9.13. Severability.................................................44
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SECTION 9.14. Interest.....................................................44
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SECTION 9.15. Interpretation...............................................44
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SECTION 9.16. Consent to Jurisdiction......................................44
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SECTION 9.17. Counterparts.................................................44
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SCHEDULE 4.08 Existing Subsidiaries
EXHIBIT A Form of Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Closing Certificate
EXHIBIT E Form of Secretary's Certificate
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Assignment and Acceptance
EXHIBIT H Form of Notice of Borrowing
EXHIBIT I Form of Guaranty Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of October 25, 1995 among BLESSINGS
CORPORATION, the BANKS listed on the signature pages hereof and WACHOVIA BANK OF
GEORGIA, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this
Section 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set forth in Section
2.05(c).
"Affiliate" of any Person means (i) any other Person which
directly, or indirectly through one or more intermediaries, controls such
Person, (ii) any other Person which directly, or indirectly through one or more
intermediaries, is controlled by or is under common control with such Person, or
(iii) any other Person of which such Person owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. As used
herein with regard to the Borrower, the term "Affiliate" shall exclude
Xxxxxxxxxx-Xxxxxx Manufacturing Company, a Texas corporation.
"Agent" means Wachovia Bank of Georgia, N.A., a national
banking association organized under the laws of the United States of America, in
its capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of August 17, 1995, between the Borrower and the Agent
relating to the structure of the Loans, and certain fees from time to time
payable by the Borrower to the Agent, together with all amendments and
modifications thereto.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Applicable Commitment Fee Rate" has the meaning set forth in
Section 2.06(a).
"Applicable Margin" has the meaning set forth in Section
2.05(a).
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.07(c) in the form attached hereto as
Exhibit G.
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"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, and (ii)
one-half of one percent above the Federal Funds Rate for such day. For purposes
of determining the Base Rate for any day, changes in the Prime Rate and the
Federal Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate.
"Borrower" means Blessings Corporation, a Delaware corporation
and its successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower at the same time by the Banks pursuant to Article II. A
Borrowing is a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans or a
"Base Rate Borrowing" if such Loans are Base Rate Loans.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. ss.9601 et seq. and its implementing regulations and
amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means October 25, 1995.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, or (ii)
as to any Bank which enters into an Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's Commitment
after giving effect to such Assignment and Acceptance, in each case as such
amount may be reduced from time to time pursuant to Sections 2.07 and 2.08.
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"Commitment Fee Determination Date" has the meaning set forth in Section
2.06(a). "Commitment Fee Payment Date" means each March 31, June 30, September
30 and December 31.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any Minority
Interests.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial statements
as of such date.
"Consolidated Tangible Net Worth" means, at any time,
Stockholders' Equity, less the sum of the value, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of
(A) Any surplus resulting from any write-up of assets subsequent to
December 31, 1994;
(B) All assets which would be treated as intangible assets for balance
sheet presentation purposes under GAAP, including without limitation goodwill
(whether representing the excess of cost over book value of assets acquired, or
otherwise), trademarks, tradenames, copyrights, patents and technologies, and
unamortized debt discount and expense.
(C) To the extent not included in (B) of this definition, any amount at
which shares of capital stock of the Borrower appear as an asset on the balance
sheet of the Borrower and its Consolidated Subsidiaries; and
(D) To the extent not included in (B) of this definition, deferred expenses
(excluding deferred taxes) recorded as assets on the balance sheet of the
Borrower and its Consolidated Subsidiaries.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
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"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under capital
leases, (v) all obligations of such Person to reimburse any bank or other Person
in respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations (absolute or contingent) of such Person to reimburse any
bank or other Person in respect of amounts paid under a letter of credit or
similar instrument (but excluding any letter of credit or similar instrument
with an expiration date or final maturity of less than 1 year from the date of
determination), (viii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, and (ix) all Debt of
others Guaranteed by such Person.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Depreciation" means for any period the sum of all
depreciation expenses of the Borrower for such period, as determined in
accordance with GAAP.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized or
required by law to close.
"EBITDA" for any period means the sum of (i) Net Income of the
Borrower for such period, (ii) Interest Expense of the Borrower for such period,
(iii) Depreciation of the Borrower for such period, (iv) amortization expense of
the Borrower for such period, and (v) all taxes actually paid by the Borrower
during such period, all as determined in accordance with GAAP.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
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"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation of
any Environmental Requirement or any investigations concerning any violation of
any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state and
local laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.05(a).
"Event of Default" has the meaning set forth in Section 6.01.
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"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to Wachovia on such day on
such transactions as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Funded Debt" means at any date the Debt of the Borrower,
determined on an unconsolidated basis as of such date.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss.6901 et seq. and its implementing regulations and amendments,
or in any applicable state or local law or regulation, (b) any "hazardous
substance", "pollutant" or "contaminant", as defined in CERCLA, or in any
applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower outstanding during
such period.
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"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to clause (c) below) which
would otherwise end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar Business Day
unless such Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to clause (c) below, end on the last Euro-Dollar
Business Day of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which ends after the
Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (subject to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall
be extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which ends after the
Termination Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of a
time deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
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"Loan" means a Base Rate Loan or a Euro-Dollar Loan and
"Loans" means Base Rate Loans or Euro-Dollar Loans, or any or all of them, as
the context shall require.
"Loan Documents" means this Agreement, the Notes, any other
document evidencing, relating to or securing the Loans, and any other document
or instrument delivered from time to time in connection with this Agreement, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.05(c).
"Margin Stock" means "margin stock" as defined in Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System, as in
effect from time to time, together with all official rulings and interpretations
issued thereunder.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business, properties or prospects of
the Borrower and its Consolidated Subsidiaries taken as a whole, (b) the rights
and remedies of the Agent or the Banks under the Loan Documents, or the ability
of the Borrower to perform its obligations under the Loan Documents to which it
is a party, as applicable, or (c) the legality, validity or enforceability of
any Loan Document.
"Minority Interests" means equity interests of the Borrower
and its Subsidiaries in the unremitted earnings of Persons not Subsidiaries.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Net Proceeds of Capital Stock" means any proceeds (whether
cash or non-cash) received by the Borrower or a Consolidated Subsidiary in
respect of the issuance of Capital Stock (including without limitation the
conversion of Debt into Capital Stock), after deducting therefrom all reasonable
and customary costs and expenses incurred by the Borrower or such Consolidated
Subsidiary directly in connection with the issuance of such Capital Stock.
"Net Worth of the Borrower" means Stockholder's Equity,
provided, that solely for the purpose of this definition of Net Worth of the
Borrower, Stockholder's Equity shall be determined solely by reference to the
shareholders' equity of the Borrower, disregarding any shareholders' equity of
its Consolidated Subsidiaries.
"Notes" has the meaning given thereto in Section 2.03(a) hereof.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
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"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership
(including without limitation, a joint venture), an unincorporated association,
a trust or any other entity or organization, including, but not limited to, a
government or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Rate Determination Date" has the meaning set forth in Section
2.05(a).
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Reported Net Income" means, for any period, the Net Income of
the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the Notes.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except dividends
payable solely in shares of its capital stock) or (ii) any payment on account of
the purchase, redemption, retirement or acquisition of (a) any shares of the
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Borrower's capital stock (except shares acquired upon the conversion thereof
into other shares of its capital stock) or (b) any option, warrant or other
right to acquire shares of the Borrower's capital stock.
"Significant Domestic Subsidiary" means any Subsidiary which:
(i) is organized under the laws of the United States of America or any state,
territory or possession thereof or the District of Columbia; and (ii) either (x)
has assets which constitute more than 10% of Consolidated Total Assets at the
end of the most recent Fiscal Quarter, or (y) contributed more than 10% of
Consolidated Operating Profits during the most recent Fiscal Quarter and the 3
Fiscal Quarters immediately preceding such Fiscal Quarter (or, with respect to
any Subsidiary which existed during the entire 4 Fiscal Quarter period but was
acquired by the Borrower during such period, which would have contributed more
than 10% of Consolidated Operating Profits during such period had it been a
Subsidiary for the entire period).
"Stockholders' Equity" means, at any time, the shareholders'
equity of the Borrower and its Consolidated Subsidiaries, as set forth or
reflected on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower or any of its Consolidated
Subsidiaries. Shareholders' equity generally would include, but not be limited
to (i) the par or stated value of all outstanding Capital Stock, (ii) capital
surplus, (iii) retained earnings, and (iv) various deductions such as (A)
purchases of treasury stock, (B) valuation allowances, (C) receivables due from
an employee stock ownership plan, (D) employee stock ownership plan debt
guarantees, and (E) translation adjustments for foreign currency transactions.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Termination Date" means October 25, 1998, unless such date is
otherwise extended by the Banks pursuant to Section 2.08 in their sole and
absolute discretion.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Total Capitalization" means, at any time, the sum of (i) the
Net Worth of the Borrower, and (ii) Funded Debt.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding principal
amount of its Loans.
"Wachovia" means Wachovia Bank of Georgia, N.A., a national
banking association and its successors.
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"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks, unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within 30 days after the delivery of
such financial statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under Section 5.01, shall mean the financial statements referred to in Section
4.04).
SECTION 1.03. Use of Defined Terms. All terms defined in this
Agreement shall have the same meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall
otherwise require.
SECTION 1.04. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.05. References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", and "Sections" are references
to articles, exhibits, schedules and sections hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Make Loans. Each Bank severally
agrees, on the terms and conditions set forth herein, to make Loans to the
Borrower from time to time before the Termination Date; provided that,
immediately after each such Loan is made, the aggregate outstanding principal
amount of Loans by such Bank shall not exceed the amount of its Commitment,
provided further that the aggregate principal amount of all Loans at any one
time outstanding shall not exceed the aggregate amount of the Commitments of all
of the Banks at such time. Each Euro-Dollar Borrowing under this Section shall
be in an aggregate principal amount of $1,000,000 or any larger multiple of
$500,000 and each Base Rate Borrowing under this Section shall be in an
aggregate principal amount of $500,000 or any larger multiple of $100,000
(except that any such Borrowing may be in the aggregate
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amount of the Unused Commitments) and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, repay or, to the extent
permitted by Section 2.09, prepay Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02. Method of Borrowing Loans. (a) The Borrower
shall give the Agent notice in the form attached hereto as Exhibit H (a "Notice
of Borrowing") prior to 11:00 A.M. (Atlanta, Georgia time) on the Domestic
Business Day of each Base Rate Borrowing and at least 2 Euro-Dollar Business
Days before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base Rate Loans
or Euro- Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) on the
date of each Borrowing, each Bank shall (except as provided in subsection (d) of
this Section) make available its ratable share of such Borrowing, in Federal or
other funds immediately available in Atlanta, Georgia, to the Agent at its
address referred to in or specified pursuant to Section 9.01. Unless the Agent
determines that any applicable condition specified in Article III has not been
satisfied, the Agent will make the funds so received from the Banks available to
the Borrower at the Agent's aforesaid address. Unless the Agent receives notice
from a Bank, at the Agent's address referred to in Section 9.01, no later than
(i) 4:00 P.M. (local time at such address) on the Domestic Business Day before
the date of a Euro-Dollar Borrowing, or (ii) 11:30 A.M. (local time at such
address) on the Domestic Business Day of a Base Rate Borrowing, stating that
such Bank will not make a Loan in connection with such Borrowing, the Agent
shall be entitled to assume that such Bank will make a Loan in connection with
such Borrowing and, in reliance on such assumption, the Agent may (but shall not
be obligated to) make available such Bank's ratable share of such Borrowing to
the Borrower for the account of such Bank. If the Agent makes such Bank's
ratable share available to the Borrower and such Bank does not in fact make its
ratable share of such Borrowing available on such date, the Agent shall be
entitled to recover such Bank's ratable share from such Bank or the Borrower
(and for such purpose shall be entitled to charge such amount to any account of
the Borrower maintained with the Agent), together with interest thereon for each
day during the period from the date of such Borrowing until such sum shall be
paid in full at a rate per annum equal to the rate at which the Agent determines
that it obtained (or could have obtained) overnight Federal funds to cover such
amount for each such day during such period, provided that any such payment by
the Borrower of such Bank's ratable share and interest thereon shall be without
prejudice to any rights that the Borrower
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may have against such Bank. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
(d) If any Bank makes a new Loan hereunder on a day on which
the Borrower is to repay all or any part of an outstanding Loan from such Bank,
such Bank shall apply the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to the
Agent as provided in subsection (c) of this Section, or remitted by the Borrower
to the Agent as provided in Section 2.11, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived in writing.
(f) In the event that a Notice of Borrowing fails to specify
whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, such Loans shall be made as Base Rate Loans. If the Borrower
is otherwise entitled under this Agreement to repay any Loans maturing at the
end of an Interest Period applicable thereto with the proceeds of a new
Borrowing, and the Borrower fails to repay such Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new Borrowing, a new
Borrowing shall be deemed to be made on the date such Loans mature in an amount
equal to the principal amount of the Loans so maturing, and the Loans comprising
such new Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein,
(i) there shall not be more than 10 different Interest Periods outstanding at
the same time with respect to Euro-Dollar Loans and (ii) the proceeds of any
Base Rate Borrowing shall be applied first to repay the unpaid principal amount
of all Base Rate Loans (if any) outstanding immediately before such Base Rate
Borrowing.
SECTION 2.03. Notes. (a) The Loans of each Bank shall be
evidenced by a single Note in the form of Exhibit A attached hereto
(individually, the "Note" and collectively, the "Notes") payable to the order of
such Bank for the account of its Lending Office in an amount equal to the
original principal amount of such Bank's Commitment.
(b) Upon receipt of each Bank's Note pursuant to Section 3.01,
the Agent shall deliver such Note to such Bank. Each Bank shall record in its
business records or on the schedule attached to its Note, and prior to any
transfer of its Note shall endorse on the schedule forming a part thereof
appropriate notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Loan made by it, the date and amount of each
payment of principal made by the Borrower with respect thereto and whether such
Loan is a Base Rate Loan or Euro-Dollar Loan, and such schedule or business
records shall constitute rebuttable presumptive evidence of the principal amount
owing and unpaid on such Bank's Note; provided that the failure of any Bank to
make, or any error in making, any such recordation or endorsement shall not
affect the obligation of the Borrower hereunder or under the Note or the ability
of any Bank to assign its Note. Each Bank is hereby irrevocably authorized by
the Borrower so to endorse its Note and to attach to and make a part of its Note
a continuation of any such schedule as and when required.
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SECTION 2.04. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
SECTION 2.05. Interest Rates. (a) "Applicable Margin" shall be determined
quarterly based upon the ratio of Funded Debt to Total Capitalization
(calculated as of the last day of each Fiscal Quarter), as follows:
Ratio of Funded Debt to
Total Capitalization Base Rate Loans Euro-Dollar Loans
Greater than or equal
to .35 0% 0.85%
Greater than or equal to
.20 but less than .35 0% 0.75%
Less than .20 0% 0.65%
The Applicable Margin shall be determined effective as of the date (herein, the
"Rate Determination Date") which is 60 days after the last day of the Fiscal
Quarter as of the end of which the foregoing ratio is being determined, based on
the quarterly financial statements for such Fiscal Quarter, and the Applicable
Margin so determined shall remain effective from such Rate Determination Date
until the date which is 60 days after the last day of the Fiscal Quarter in
which such Rate Determination Date falls (which latter date shall be a new Rate
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Rate Determination Date next following the
Closing Date, the Applicable Margin shall be (A) 0% for Base Rate Loans and (B)
.75% for Euro-Dollar Loans, (ii) in the case of any Applicable Margin determined
with respect to the ratio of Funded Debt to Total Capitalization as of the last
day of the fourth and final Fiscal Quarter of a Fiscal Year, the Rate
Determination Date shall be the date which is 105 days after the last day of
such final Fiscal Quarter and such Applicable Margin shall be determined based
upon the annual audited financial statements for the Fiscal Year ended on the
last day of such final Fiscal Quarter, and (iii) if on any Rate Determination
Date the Borrower shall have failed to deliver to the Banks the financial
statements required to be delivered pursuant to Section 5.01(b) with respect to
the Fiscal Quarter most recently ended prior to such Rate Determination Date,
then for the period beginning on such Rate Determination Date and ending on the
earlier of (A) the date on which the Borrower shall deliver to the Banks the
financial statements to be delivered pursuant to Section 5.01(b) with respect to
such Fiscal Quarter or any subsequent Fiscal Quarter, or (B) the date on which
the Borrower shall deliver to the Banks annual financial statements required to
be delivered pursuant to Section 5.01(a) with respect to the Fiscal Year which
includes such Fiscal Quarter or any subsequent Fiscal Year, the Applicable
Margin shall be determined as if the ratio of Funded Debt to Total
Capitalization was more than .35 at all times during such period. Any change in
the Applicable Margin on any Rate Determination Date shall result in a
corresponding change, effective on and as of such Rate Determination Date, in
the interest rate applicable to each Loan outstanding on such Rate Determination
Date.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue
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interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period;
provided that if any Euro-Dollar Loan shall, as a result of clause (1)(c) of the
definition of Interest Period, have an Interest Period of less than one month,
such Euro-Dollar Loan shall bear interest during such Interest Period at the
rate applicable to Base Rate Loans during such period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by applicable
law, overdue interest on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan the rate
per annum determined on the basis of the offered rate for deposits in Dollars of
amounts equal or comparable to the principal amount of such Euro-Dollar Loan
offered for a term comparable to such Interest Period, which rates appear on the
Telerate Screen Page 3750 as of 11:00 a.m., London time, 2 Euro-Dollar Business
Days prior to the first day of such Interest Period, provided that (i) if more
than one such offered rate appears on the Telerate Screen Page 3750, the "London
Interbank Offered Rate" will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100th of 1%) of such offered rates; and (ii) if
no such offered rates appear on such page, the "London Interbank Offered Rate"
for such Interest Period will be the arithmetic average (rounded, if necessary,
to the next higher 1/100th of 1%) of rates quoted by not less than 2 major banks
in New York City, selected by the Agent, at approximately 10:00 a.m., New York
City time, 2 Euro-Dollar Business Days prior to the first day of such Interest
Period, for deposits in Dollars offered by leading European banks for a period
comparable to such Interest Period in an amount comparable to the principal
amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage, provided
that with regard to any Euro-Dollar Loan outstanding on the effective date of a
change in the Euro-Dollar Reserve Percentage, the Adjusted London Interbank
Offered Rate shall not be adjusted until the first day of the immediately
succeeding Interest Period.
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(d) Any overdue principal of and, to the extent permitted by
law, overdue interest on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
(e) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telecopy of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(f) After the occurrence and during the continuance of a
Default, the principal amount of the Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate.
SECTION 2.06. Fees. (a) The Borrower shall pay to the Agent
for the ratable account of each Bank a commitment fee equal to the product of:
(i) the aggregate of the daily average amounts of such Bank's Unused Commitment,
times (ii) a per annum percentage equal to the Applicable Commitment Fee Rate.
Such commitment fee shall accrue from and including the Closing Date to and
including the Termination Date. Commitment fees shall be payable quarterly in
arrears on the first Commitment Fee Payment Date following each Commitment Fee
Determination Date and on the Termination Date; provided that should the
Commitments be terminated at any time prior to the Termination Date for any
reason, the entire accrued and unpaid commitment fee shall be paid on the date
of such termination. The "Applicable Commitment Fee Rate" shall be determined
quarterly based upon the ratio of Funded Debt to Total Capitalization
(calculated as of the last day of each Fiscal Quarter) as follows:
Ratio of Funded Debt to Applicable
Total Capitalization Commitment Fee Rate
Greater than or equal
to .35 0.300%
Greater than or equal to
.20 but less than .35 0.225%
Less than .20 0.175%
The Applicable Commitment Fee Rate shall be determined effective as of the date
(herein, the "Commitment Fee Determination Date") which is 60 days after the
last day of the Fiscal Quarter as of the end of which the foregoing ratio is
being determined, based on the quarterly financial statements for such Fiscal
Quarter, and the Applicable Commitment Fee Rate so determined shall remain
effective from such Commitment Fee Determination Date until the date which is 60
days after the last day of the Fiscal Quarter in which such Commitment Fee
Determination Date falls (which latter date shall be a new Commitment Fee
Determination Date); provided that (i) for the period from and including the
Closing Date to but excluding the Commitment Fee Determination Date next
following the Closing Date, the Applicable Commitment Fee Rate shall be .225%;
(ii) in the case of any Applicable Commitment Fee Rate determined with respect
to the ratio of Funded Debt to Total Capitalization as of the last day of the
fourth and final Fiscal Quarter of a Fiscal Year, the Commitment Fee
Determination Date shall be the date which is 105 days after the last day of
such final Fiscal Quarter and such Applicable Commitment Fee Rate shall be
determined based upon the annual audited financial statements for the Fiscal
Year
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ended on the last day of such final Fiscal Quarter, and (iii) if on any
Commitment Fee Determination Date the Borrower shall have failed to deliver to
the Banks the financial statements required to be delivered pursuant to Section
5.01(b) with respect to the Fiscal Quarter most recently ended prior to such
Commitment Fee Determination Date, then for the period beginning on such
Commitment Fee Determination Date and ending on the earlier of (A) the date on
which the Borrower shall deliver to the Banks the financial statements to be
delivered pursuant to Section 5.01(b) with respect to such Fiscal Quarter or any
subsequent Fiscal Quarter, and (B) the date on which the Borrower shall deliver
to the Banks annual financial statements required to be delivered pursuant to
Section 5.01(a) with respect to the Fiscal Year which includes such Fiscal
Quarter or any subsequent Fiscal Year, the Applicable Commitment Fee Rate shall
be determined as if the ratio of Total Capitalization to Funded Debt was more
than .35 at all times during such period.
(b) The Borrower shall pay to the Agent, for the account and
sole benefit of the Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
SECTION 2.07. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 3 Domestic Business Days' notice to
the Agent, terminate at any time, or proportionately reduce from time to time by
an aggregate amount of at least $2,500,000 or any larger multiple of $500,000,
the Commitments. If the Commitments are terminated in their entirety, all
accrued fees (as provided under Section 2.06) shall be payable on the effective
date of such termination.
SECTION 2.08. Mandatory Reduction and Termination of Commitments. (a) The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
such date.
(b) Upon the written request of the Borrower, which request
shall be delivered to the Agent at least 60 days prior to the first, second,
third or fourth anniversary dates of the Closing Date, the Banks shall have the
option (without any obligation whatsoever to do so) of extending the Termination
Date for an additional 12-month period; provided that in no event shall the
Termination Date be extended past October 25, 2002. In the event that a Bank
chooses to extend the Termination Date, notice shall be given by such Bank to
the Borrower and the Agent at least 15 days prior to the relevant anniversary of
the Closing Date. The Termination Date shall not be extended with respect to any
of the Banks (regardless of whether any relevant Bank has delivered a favorable
extension notice) unless the Required Banks shall have delivered favorable
extension notices and are willing to extend the Termination Date and either: (x)
the remaining Banks shall on the Termination Date (prior to its extension
hereunder) purchase ratable assignments (without any obligation to do so) from
each Bank (a "Terminating Bank") that has not elected to extend the Termination
Date, in accordance with their respective percentage of the remaining aggregate
Commitments; provided that, such remaining Banks shall be provided such
opportunity which opportunity shall allow such Bank at least five Domestic
Business Days in which to make a decision prior to the Borrower finding another
bank pursuant to the immediately succeeding clause (y) and provided further,
that, should any of the remaining Banks elect not to purchase such an
assignment, then, such other remaining Banks shall be entitled to purchase an
assignment on the Termination Date (prior to its extension hereunder) from any
Terminating Bank of which includes the ratable interest that was otherwise
available to such non-purchasing remaining Banks, (y) the Borrower shall find
another bank or banks, as the case may be, acceptable to the Agents, willing to
accept an
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assignment from any Terminating Bank effective on the Termination Date (prior to
its extension hereunder) in an amount equal to the sum of the Commitments of all
such Terminating Banks; or (z) the aggregate Commitments are reduced by the
aggregate amount of the Commitments of the Terminating Banks which are not
assigned pursuant to clause (x) or (y) above.
SECTION 2.09. Optional Prepayments. (a) The Borrower may, upon
at least 1 Domestic Business Day's notice to the Agent, prepay any Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $500,000 or any larger multiple of $100,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Base Rate Loans of the several Banks included in such Base Rate
Borrowing.
(b) The Borrower may, upon at least 2 Euro-Dollar Business
Days' notice to the Agent, prepay any Euro-Dollar Borrowing in whole at any
time, or from time to time in part in amounts aggregating at least $500,000 or
any larger multiple of $100,000, by paying the principal amount to be prepaid,
together with accrued interest thereon to the date of prepayment and any amount
due pursuant to Section 8.05. Each such optional prepayment shall be applied to
prepay ratably the Euro-Dollar Loans of the several Banks included in such
Euro-Dollar Borrowing.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.10. Mandatory Prepayments. On each date on which the
Commitments are reduced pursuant to Section 2.07 or Section 2.08, the Borrower
shall repay or prepay such principal amount of the outstanding Loans, if any
(together with interest accrued thereon and any amounts due under Section
8.05(a)), as may be necessary so that after such payment the aggregate unpaid
principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced. Each such payment or prepayment shall be applied to
repay or prepay ratably the Loans of the several Banks.
SECTION 2.11. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and interest on, the Loans and
of commitment fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia time)
on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will promptly distribute to each Bank its ratable share of each such
payment received by the Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
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SECTION 2.12. Computation of Interest and Fees. Interest on
the Loans and commitment fees shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III
CONDITIONS TO CLOSING AND BORROWINGS
SECTION 3.01. Conditions to Closing. The following conditions shall be
satisfied on or before the Closing Date:
(a) receipt by the Agent from each of the parties hereto of
either (i) a duly executed counterpart of this Agreement signed by such
party or (ii) a facsimile transmission stating that such party has duly
executed a counterpart of this Agreement and sent such counterpart to
the Agent;
(b) receipt by the Agent of a duly executed Note for the
account of each Bank complying with the provisions of Section 2.03;
(c) receipt by the Agent of an opinion (together with any
opinions of local counsel relied on therein) of Xxxxxx, Xxxxxx &
Xxxxxxx, X.X., counsel for the Borrower, dated as of the Closing Date,
substantially in the form of Exhibit B hereto and covering such
additional matters relating to the transactions contemplated hereby as
the Agent or any Bank may reasonably request;
(d) receipt by the Agent of an opinion of Xxxxxx Xxxxxxx
Xxxxxxxxx & Xxxx, PLLC, special counsel for the Agent, dated as of the
Closing Date, substantially in the form of Exhibit C hereto and
covering such additional matters relating to the transactions
contemplated hereby as the Agent may reasonably request;
(e) receipt by the Agent of a certificate (the "Closing
Certificate"), dated as of the Closing Date, substantially in the form
of Exhibit D hereto, signed by a principal financial officer of the
Borrower, to the effect that (i) no Default has occurred and is
continuing on the Closing Date and (ii) the representations and
warranties of the Borrower contained in Article IV are true on and as
of the Closing Date;
(f) receipt by the Agent of all documents which the Agent or
any Bank may reasonably request relating to the existence of the
Borrower, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all in
form and substance satisfactory to the Agent, including without
limitation, a certificate of incumbency of the Borrower (the "Officer's
Certificate"), signed by the Secretary or an Assistant Secretary of the
Borrower, substantially in the form of Exhibit E hereto, certifying as
to the names, true signatures and incumbency of the officer or officers
of the Borrower authorized to execute and deliver the Loan Documents,
and certified copies of the following items: (i) the Borrower's
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Certificate of Incorporation, (ii) the Borrower's Bylaws, (iii) a
certificate of the Secretary of State of the State of Delaware as to
the good standing of the Borrower, and (iv) the action taken by the
Board of Directors of the Borrower authorizing the Borrower's
execution, delivery and performance of the Loan Documents; and
(g) receipt by the Agent, for the ratable account of each
Bank, of an upfront fee equal to .10% of the Commitment of such Bank.
SECTION 3.02. Conditions to All Borrowings. The obligation of each Bank to
make a Loan on the occasion of each Borrowing is subject to the satisfaction of
the following conditions:
(a) receipt by the Agent of Notice of Borrowing as required by Section
2.02;
(b) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing;
(c) the fact that the representations and warranties of the
Borrower contained in Article IV of this Agreement shall be true on and
as of the date of such Borrowing; and
(d) the fact that, immediately after such Borrowing (i) the
aggregate outstanding principal amount of the Loans of each Bank will
not exceed the amount of its Commitment, and (ii) the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments of all of the Banks as of such date.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in clauses (b), (c) and (d) of this Section; provided that such
Borrowing shall not be deemed to be such a representation and warranty to the
effect set forth in Section 4.04(b) as to any event, act or condition having a
Material Adverse Effect which has theretofore been disclosed in writing by the
Borrower to the Banks if the aggregate outstanding principal amount of the Loans
immediately after such Borrowing will not exceed the aggregate outstanding
principal amount thereof immediately before such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
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SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms, provided
that the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of December
31, 1994, and the related consolidated statements of income, shareholders'
equity and cash flows for the Fiscal Year then ended, reported on by Deloitte &
Touche LLP, copies of which have been delivered to each of the Banks, and the
unaudited consolidated financial statements of the Borrower for the interim
period ended July 15, 1995, copies of which have been delivered to each of the
Banks, fairly present, in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such dates and
their consolidated results of operations and cash flows for such periods stated.
(b) Since December 31, 1994, there has been no event, act,
condition or occurrence having a Material Adverse Effect.
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official which could reasonably be expected
to have a Material Adverse Effect.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and each
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled
Group is or in the 5 years preceding the Closing Date has been obligated to
contribute to any Multiemployer Plan.
SECTION 4.07. Taxes. There have been filed on behalf of the Borrower and
its Subsidiaries all Federal, state and local income, excise, property and other
tax returns which are required
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to be filed by them and all taxes due pursuant to such returns or pursuant to
any assessment received by or on behalf of the Borrower or any Subsidiary have
been paid. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate. United States income tax returns of the
Borrower and its Subsidiaries have been examined and closed through the Fiscal
Year ended December 28, 1991.
SECTION 4.08. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. The Borrower has no Subsidiaries except those
Subsidiaries listed on Schedule 4.08, which accurately sets forth each such
Subsidiary's complete name and jurisdiction of incorporation.
SECTION 4.09. Not an Investment Company. Neither the Borrower nor any of
its Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the
Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.08.
SECTION 4.12. No Default. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which could have or cause a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Agent or any
Bank will be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all facts
which could have or cause a Material Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Neither the Borrower
nor any Subsidiary is subject to any Environmental Liability which could have or
cause a Material Adverse Effect and neither the Borrower nor any Subsidiary has
been designated as a potentially responsible party under CERCLA or under any
state statute similar to CERCLA. None of the Properties has been identified on
any current or proposed (i) National Priorities List under 40 C.F.R. ss. 300,
(ii) CERCLIS list or (iii) any list arising from a state statute similar to
CERCLA.
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(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the Properties,
or, to the best of the knowledge of the Borrower, at or from any adjacent site
or facility, except for Hazardous Materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, and managed or
otherwise handled in the ordinary course of business in compliance with all
applicable Environmental Requirements.
(c) The Borrower, and each of its Subsidiaries and Affiliates,
has procured or is diligently pursuing the procurement of all Environmental
Authorizations necessary for the conduct of its business, and is in compliance
with all Environmental Requirements in connection with the operation of the
Properties and the Borrower's, and each of its Subsidiary's and Affiliate's,
respective businesses.
SECTION 4.15. Compliance with Laws. The Borrower and each
Subsidiary is in compliance with all applicable laws, including, without
limitation, all Environmental Laws, except where any failure to comply with any
such laws would not, alone or in the aggregate, have a Material Adverse Effect.
SECTION 4.16. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by the
Borrower free and clear of any Lien or adverse claim. At least a majority of the
issued shares of capital stock of each of the Borrower's other Subsidiaries
(other than Wholly Owned Subsidiaries) is owned by the Borrower free and clear
of any Lien or adverse claim.
SECTION 4.17. Margin Stock. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent with,
the provisions of Regulation X.
SECTION 4.18. Insolvency. After giving effect to the execution
and delivery of the Loan Documents and the making of the Loans under this
Agreement, the Borrower will not be "insolvent," within the meaning of such term
as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11 of the
United States Code or Section 2 of the Uniform Fraudulent Transfer Act, or any
other applicable state law pertaining to fraudulent transfers, as each may be
amended from time to time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each
of the Banks:
(a) as soon as available and in any event within 105 days
after the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous fiscal year, all
certified by Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing, with such certification
to be free of exceptions and qualifications not acceptable to the
Required Banks;
(b) as soon as available and in any event within 60 days after
the end of each of the first 3 Fiscal Quarters of each Fiscal Year, a
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Quarter and the related
statement of income and statement of cash flows for such Fiscal Quarter
and for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for
the corresponding Fiscal Quarter and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by
the chief financial officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate,
substantially in the form of Exhibit F (a "Compliance Certificate"), of
the chief financial officer or the chief accounting officer of the
Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.03 through 5.06, inclusive, and 5.08 on the
date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) within 5 Domestic Business Days after the Borrower becomes
aware of the occurrence of any Default, a certificate of the chief
financial officer or the chief accounting officer of the Borrower
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
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quarterly or monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(g) if and when the Borrower or any member of the Controlled
Group (i) gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with respect
to any Plan which might constitute grounds for a termination of such
Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable
event, a copy of the notice of such reportable event given or required
to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or
(iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy
of such notice;
(h) promptly after the Borrower knows of the commencement
thereof, notice of any litigation, dispute or proceeding involving a
claim against the Borrower and/or any Subsidiary for $5,000,000 or more
in excess of amounts covered in full by applicable insurance; and
(i) from time to time such additional information regarding
the financial position or business of the Borrower and its Subsidiaries
as the Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The
Borrower will (i) keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank's expense prior to the occurrence of an
Event of Default and at the Borrower's expense after the occurrence of an Event
of Default to visit and inspect any of their respective properties, to examine
and (after the occurrence and during the continuance (uncured) of an Event of
Default) make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants. The Borrower agrees to
cooperate and assist in such visits and inspections, in each case at such
reasonable times and as often as may reasonably be desired.
SECTION 5.03. Minimum Consolidated Tangible Net Worth.
Consolidated Tangible Net Worth will at no time be less than $39,000,000 plus
the sum of (i) 50% of the cumulative Reported Net Income of the Borrower and its
Consolidated Subsidiaries during any period after December 30, 1995 (taken as
one accounting period), calculated quarterly (but excluding from such
calculations of Reported Net Income any quarter in which the Reported Net Income
of the Borrower and its Consolidated Subsidiaries is negative), and (ii) 100% of
the cumulative Net Proceeds of Capital Stock received during any period after
December 30, 1995, calculated quarterly.
SECTION 5.04. Ratio of Funded Debt to Total Capitalization.
The ratio of Funded Debt to Total Capitalization will at all times be less than
or equal .50 to 1.00.
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SECTION 5.05. Ratio of Funded Debt to EBITDA. At the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending December 31,
1995, the ratio of Funded Debt on such date to EBITDA for the immediately
preceding 12 months then ended, shall not exceed 3.0 to 1.0.
SECTION 5.06. Loans or Advances. Neither the Borrower nor any
of its Subsidiaries shall make loans or advances to any Person except: (i) loans
or advances to employees not exceeding Two Million Dollars ($2,000,000) in the
aggregate outstanding made in the ordinary course of business and consistently
with practices existing on the Closing Date; (ii) deposits required by
government agencies or public utilities; (iii) loans or advances to Significant
Domestic Subsidiaries which have executed and delivered to the Agent a guaranty
agreement and delivered all other documents as required by Section 5.20; and
(iv) in addition to loans or advances permitted by the foregoing clauses (i)
through (iii), loans or advances not exceeding in the aggregate at any one time
outstanding an amount equal to $5,000,000; provided that after giving effect to
the making of any loans, advances or deposits permitted by clause (i), (ii),
(iii) or (iv) of this Section, no Default shall have occurred and be continuing.
SECTION 5.07. Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except as permitted by Section
5.06 and except Investments (i) in direct obligations of the United States
Government maturing within one year, (ii) in certificates of deposit issued by a
commercial bank whose credit is satisfactory to the Agent, (iii) in commercial
paper rated A-1 or the equivalent thereof by Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx, Inc. or P-1 or the equivalent thereof by Xxxxx'x
Investors Service, Inc. and in either case maturing within 6 months after the
date of acquisition, (iv) in tender bonds the payment of the principal of and
interest on which is fully supported by a letter of credit issued by a United
States bank whose long-term certificates of deposit are rated at least AA or the
equivalent thereof by Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc. and Aa or the equivalent thereof by Xxxxx'x Investors Service,
Inc., and (v) in addition to those permitted by the foregoing clauses (i)
through (iv), not exceeding (at original cost) in the aggregate during any
Fiscal Year an amount equal to $10,000,000.
SECTION 5.08. Negative Pledge. Neither the Borrower nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal
amount not exceeding $5,500,000;
(b) any Lien existing on any asset of any corporation at the
time such corporation becomes a Consolidated Subsidiary and not created
in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring
or constructing such asset, provided that such Lien attaches to such
asset concurrently with or within 18 months after the acquisition or
completion of construction thereof;
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(d) any Lien on any asset of any corporation existing at the
time such corporation is merged or consolidated with or into the
Borrower or a Consolidated Subsidiary and not created in contemplation
of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the Borrower;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing clauses of this Section, provided that (i) such Debt
is not secured by any additional assets, and (ii) the amount of such
Debt secured by any such Lien is not increased;
(h) Liens incidental to the conduct of its business or the
ownership of its assets which (i) do not secure Debt and (ii) do not in
the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
(i) any Lien on Margin Stock; and
(j) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt (other than indebtedness represented by the
Notes) in an aggregate principal amount at any time outstanding not to
exceed 15% of Stockholders' Equity.
SECTION 5.09. Maintenance of Existence. The Borrower shall,
and shall cause each Subsidiary to, maintain its corporate existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained.
SECTION 5.10. Dissolution. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its own stock or that of any
Subsidiary, except through corporate reorganization to the extent permitted by
Section 5.11.
SECTION 5.11. Consolidations, Mergers and Sales of Assets. The
Borrower will not, nor will it permit any Subsidiary to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or eliminate any business
line or segment, provided that (a) the Borrower may merge with another Person if
(i) such Person was organized under the laws of the United States of America or
one of its states, (ii) the Borrower is the corporation surviving such merger
and (iii) immediately after giving effect to such merger, no Default shall have
occurred and be continuing, (b) Subsidiaries of the Borrower may merge with one
another, and (c) the foregoing limitation on the sale, lease or other transfer
of assets and on the discontinuation or elimination of a business line or
segment shall not prohibit, during any Fiscal Quarter, a transfer of assets or
the discontinuance or elimination of a business line or segment (in a single
transaction or in a series of related transactions) unless the aggregate assets
to be so transferred or utilized in a business line or segment to be so
discontinued, when combined with all other assets transferred, and all other
assets
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utilized in all other business lines or segments discontinued, during such
Fiscal Quarter and the immediately preceding seven Fiscal Quarters, either (x)
constituted more than 5% of Consolidated Total Assets at the end of the eighth
Fiscal Quarter immediately preceding such Fiscal Quarter, or (y) contributed
more than 5% of Consolidated Operating Profits during the 8 consecutive Fiscal
Quarters immediately preceding such Fiscal Quarter.
SECTION 5.12. Use of Proceeds. No portion of the proceeds of
the Loans will be used by the Borrower or any Subsidiary (i) directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock, or (ii) for any purpose in violation of
any applicable law or regulation.
SECTION 5.13. Compliance with Laws; Payment of Taxes. The
Borrower will, and will cause each of its Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited to
ERISA), regulations and similar requirements of governmental authorities
(including but not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings
diligently pursued. The Borrower will, and will cause each of its Subsidiaries
to, pay promptly when due all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which, if unpaid, might become a
lien against the property of the Borrower or any Subsidiary, except liabilities
being contested in good faith by appropriate proceedings diligently pursued and
against which, if requested by the Agent, the Borrower shall have set up
reserves in accordance with GAAP.
SECTION 5.14. Insurance. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Borrower
or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its Property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business.
SECTION 5.15. Change in Fiscal Year. The Borrower will not
change its Fiscal Year without the consent of the Required Banks, except for the
change scheduled to commence on January 1, 1996 that will result in the
Borrower's Fiscal Year commencing on January 1 and ending on December 31 of each
year.
SECTION 5.16. Maintenance of Property. The Borrower shall, and
shall cause each Subsidiary to, maintain all of its properties and assets in
good condition, repair and working order, ordinary wear and tear excepted.
SECTION 5.17. Environmental Notices. The Borrower shall
furnish to the Banks and the Agent prompt written notice of all Environmental
Liabilities, pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting the Properties or any
adjacent property, and all facts, events, or conditions that could lead to any
of the foregoing.
SECTION 5.18. Environmental Matters. The Borrower and its Subsidiaries will
not, and will not permit any Third Party to, use, produce, manufacture, process,
treat, recycle, generate, store,
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dispose of, manage at, or otherwise handle or ship or transport to or from the
Properties any Hazardous Materials except for Hazardous Materials used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed, managed or otherwise handled in the ordinary course of business in
compliance with all applicable Environmental Requirements.
SECTION 5.19. Environmental Release. The Borrower agrees that
upon the occurrence of an Environmental Release at or on any of the Properties
it will act immediately to investigate the extent of, and to take appropriate
remedial action to eliminate, such Environmental Release, whether or not ordered
or otherwise directed to do so by any Environmental Authority.
SECTION 5.20. Guaranty of Significant Domestic Subsidiaries.
(a) The Borrower shall cause any Person which becomes a Significant Domestic
Subsidiary after the Closing Date to become a party to, and agree to be bound by
the terms of a guaranty agreement substantially in the form of Exhibit I hereto,
executed and delivered to the Agent within 45 days after the last day of the
Fiscal Quarter in which such Person became a Significant Domestic Subsidiary.
The Borrower shall also deliver, concurrently with the guaranty agreement
referred to in the preceding sentence (i) a certificate substantially in the
form of Exhibit E hereto, signed by the Secretary or an Assistant Secretary of
such Significant Domestic Subsidiary (modified to refer to such Significant
Domestic Subsidiary), together with copies of all exhibits referred to in such
certificate, and (ii) a legal opinion of counsel to such Significant Domestic
Subsidiary in substantially the form of Exhibit B hereto (modified to remove
references where appropriate to the Borrower and the Credit Agreement and to
include references where appropriate to such Significant Domestic Subsidiary and
its guaranty).
(b) Once any Subsidiary becomes a Significant Domestic
Subsidiary and therefore becomes a party to a guaranty agreement in accordance
with Section 5.20(a), such Subsidiary thereafter shall remain a party to such
guaranty agreement without regard to the amount of its Operating Profits or
assets for any period.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
any Loan or shall fail to pay any interest on any Loan within five
Domestic Business Days after such interest shall become due, or shall
fail to pay any fee or other amount payable hereunder within five
Domestic Business Days after such fee or other amount becomes due; or
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(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.02(ii), 5.03 to 5.12, inclusive, or Section
5.15 or 5.20; or
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in this Agreement
(other than those covered by clause (a) or (b) above) for thirty days
after the earlier of (i) the first day on which the Borrower has
knowledge of such failure or (ii) written notice thereof has been given
to the Borrower by the Agent at the request of any Bank; or
(d) any representation, warranty, certification or statement
made or deemed made by the Borrower in Article IV of this Agreement or
in any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect or
misleading in any material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding (other than the Notes) in an
aggregate amount in excess of $5,000,000 when due or within any
applicable grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower or any
Subsidiary in an aggregate amount in excess of $5,000,000 or the
mandatory prepayment or purchase of such Debt by the Borrower (or its
designee) or such Subsidiary (or its designee) prior to the scheduled
maturity thereof, or enables (or, with the giving of notice or lapse of
time or both, would enable) the holders of such Debt or any Person
acting on such holders' behalf to accelerate the maturity thereof or
require the mandatory prepayment or purchase thereof prior to the
scheduled maturity thereof, without regard to whether such holders or
other Person shall have exercised or waived their right to do so; or
(g) the Borrower or any Subsidiary shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in
writing its inability, to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against
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the Borrower or any Subsidiary under the federal bankruptcy laws as now
or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or
notice of intent to terminate a Plan or Plans shall be filed under
Title IV of ERISA by the Borrower, any member of the Controlled Group,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Plan or Plans or
a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any such Plan or Plans must be terminated; or
the Borrower or any other member of the Controlled Group shall enter
into, contribute or be obligated to contribute to, terminate or incur
any withdrawal liability with respect to, a Multiemployer Plan; or
(j) one or more judgments or orders for the payment of money
in an aggregate amount in excess of $2,000,000 shall be rendered
against the Borrower or any Subsidiary and such judgment or order shall
continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower
under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and
in either case such lien shall remain undischarged for a period of 25
days after the date of filing; or
(l) (i) any Person or two or more Persons acting in concert
(other than Xxxxxxxxxx-Xxxxxx Manufacturing Company, a Texas
corporation) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934) of 20% or more of the outstanding
shares of the voting stock of the Borrower, unless the Required Banks
shall have consented in writing to such acquisition prior to the
occurrence of such acquisition (which consent maybe withheld by the
Banks in their sole and absolute discretion); or (ii) as of any date a
majority of the Board of Directors of the Borrower consists of
individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A), or (C)
selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in
clause (A) and individuals described in clause (B); or
(m) any guaranty executed and delivered by a Significant
Domestic Subsidiary pursuant to Section 5.20 hereof shall cease to be
in full force and effect (other than by reason of the release or
termination of such guaranty by the Agent or the Banks); or
(n) any Significant Domestic Subsidiary or any Person acting
on behalf of such Significant Domestic Subsidiary shall deny, disaffirm
or fail to perform such Significant
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Domestic Subsidiary's obligations under the guaranty executed and delivered
by it pursuant to Section 5.20 hereof;
then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by the Required Banks, by notice to
the Borrower declare the Notes (together with accrued interest thereon) and all
other amounts payable hereunder and under the other Loan Documents to be, and
the Notes (together will all accrued interest thereon) and all other amounts
payable hereunder and under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that if
any Event of Default specified in clause (g) or (h) above occurs with respect to
the Borrower, without any notice to the Borrower or any other act by the Agent
or the Banks, the Commitments shall thereupon automatically terminate and the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents shall automatically become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower. Notwithstanding the
foregoing, the Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request of the Required
Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment, Powers and Immunities. Each Bank
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions reasonably satisfactory to the Agent, and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or under
any other Loan Document or any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except
for its own gross negligence or willful misconduct. The Agent may employ agents
and attorneys-in-fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The
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provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telefax, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
non-payment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each non-payment of principal of or
interest on the Loans, whether or not it has received any notice of the
occurrence of such non-payment. The Agent shall (subject to Section 9.05) take
such action with respect to such Default or Event of Default as shall be
directed by the Required Banks, provided that, unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent and its Affiliates as a Bank.
With respect to any Loan made by Wachovia (in the event it becomes a Bank
hereunder) or an Affiliate of Wachovia, such Affiliate and Wachovia in their
capacity as a Bank hereunder shall have the same rights and powers hereunder as
any other Bank and may exercise the same as though it were not the Agent or an
Affiliate of the Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include Wachovia and such Affiliate of Wachovia in its
individual capacity. Such Affiliate and the Agent may (without having to account
therefor to any Bank) accept deposits from, lend money to and generally engage
in any kind of banking, trust or other business with the Borrower (and any of
its Affiliates) as if they were not an Affiliate of the Agent or acting as the
Agent, respectively, and such Affiliate and the Agent may accept fees and other
consideration from he Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and the Agent) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
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SECTION 7.05. Indemnification. Each Bank severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and is continuing,
the normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or any such other documents; provided, however, that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient or
become impaired, the Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. 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 and the provisions of Section 9.07(c) have
been satisfied. Any requests, 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 that Note or of any Note or Notes issued in exchange therefor or
replacement thereof.
SECTION 7.08. Non-Reliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
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SECTION 7.09. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Banks of their indemnification obligations under Section 7.05 against any
and all liability and expense which may be incurred by the Agent by reason of
taking, continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Borrower and
the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right, with the prior consent of the Borrower (which consent shall not be
unreasonably withheld), to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Required Banks and approved by the Borrower
and shall have accepted such appointment within 30 days after the retiring
Agent's notice of resignation or the Required Banks' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks (and without the
consent of any Bank or the Borrower), appoint a successor Agent. Any successor
Agent shall be a bank which has a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as 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
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate as determined by the Agent will not adequately
and fairly reflect the cost to such Banks of funding the Euro-Dollar
Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the Agent at
least 2 Domestic Business Days before the date of any Euro-Dollar Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, such Borrowing shall instead be made as a Base Rate
Borrowing.
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SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such authority, bank or agency being referred to as an "Authority" and any such
event being referred to as a "Change of Law"), or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any Authority shall make it unlawful or impossible for any Bank (or
its Lending Office) to make, maintain or fund its Euro-Dollar Loans and such
Bank shall so notify the Agent, the Agent shall forthwith give notice thereof to
the other Banks and the Borrower, whereupon until such Bank notifies the
Borrower and the Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it may
not lawfully continue to maintain and fund any of its outstanding Euro-Dollar
Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each
Euro-Dollar Loan of such Bank, together with accrued interest thereon and any
amount due such Bank pursuant to Section 8.05(a). Concurrently with prepaying
each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate Loan in an
equal principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority:
(i) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Euro-Dollar Loans, its Notes
or its obligation to make Euro-Dollar Loans, or shall change the basis
of taxation of payments to any Bank (or its Lending Office) of the
principal of or interest on its Euro-Dollar Loans or any other amounts
due under this Agreement in respect of its Euro-Dollar Loans or its
obligation to make Euro-Dollar Loans (except for changes in the rate of
tax on the overall net income of such Bank or its Lending Office
imposed by the jurisdiction in which such Bank's principal executive
office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its
Lending Office); or
(iii) shall impose on any Bank (or its Lending Office) or on
the London interbank market any other condition affecting its
Euro-Dollar Loans, its Notes or its obligation to make Euro-Dollar
Loans;
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and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then the Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction, within 15 days after demand by such Bank (with a
copy to the Agent), provided that if any such additional amount or amounts are
claimed with regard to a Euro-Dollar Loan, in no event shall such payment be
required to be made before the last day of the Interest Period applicable to
such Euro-Dollar Loan.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any existing or future law, rule or regulation, or
any change in the interpretation or administration thereof, or compliance by any
Bank (or its Lending Office) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Authority, has or would
have the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction;
provided that notwithstanding the foregoing, the Borrower shall have no
obligation to compensate any Bank for: (i) any reduction resulting from
compliance by such Bank with any change, request or directive specifically
relating to such Bank's financial performance, and (ii) any amount or amounts
that any Bank has requested with regard to a Base Rate Loan made after the date
of such adoption, change or compliance.
(c) Each Bank will promptly notify the Borrower and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable
with respect to any Participant, Assignee or other Transferee, and any
calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Bank to make or maintain
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03, and the Borrower shall, by at
least 5 Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
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(a) all Loans which would otherwise be made by such Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans, and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
SECTION 8.05. Compensation. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.09,
Section 2.10, Section 8.02 or otherwise) of a Euro-Dollar Loan on a
date other than the last day of an Interest Period for such Euro-Dollar
Loan;
(b) any failure by the Borrower to prepay a Euro-Dollar
Loan on the date for such prepayment specified in the relevant notice
of prepayment hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Loan
on the date for the Euro-Dollar Borrowing of which such Euro-Dollar
Loan is a part specified in the applicable Notice of Borrowing
delivered pursuant to Section 2.02;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on (i) deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission or similar writing) and shall be given to such party at its address
or telecopy number set forth on the signature pages hereof or such other address
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or telecopy number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopy number specified in this Section and the telecopy machine used by the
sender provides a written confirmation that such telecopy has been so
transmitted or receipt of such telecopy transmission is otherwise confirmed,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, and (iii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article II or Article VIII
shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the Agent,
including reasonable fees and disbursements of special counsel for the Banks and
the Agent, in connection with the preparation of this Agreement and the other
Loan Documents, any waiver or consent hereunder or thereunder or any amendment
hereof or thereof or any Default or alleged Default hereunder or thereunder and
(ii) if a Default occurs, all out-of-pocket expenses incurred by the Agent or
any Bank, including fees and disbursements of counsel, in connection with such
Default and collection and other enforcement proceedings resulting therefrom,
including out-of-pocket expenses incurred in enforcing this Agreement and the
other Loan Documents.
(b) The Borrower shall indemnify the Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents.
(c) The Borrower shall indemnify the Agent, the Banks and each
Affiliate thereof and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims or damages to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by any
Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from investigation, litigation (including, without limitation, any
actions taken by the Agent or any of the Banks to enforce this Agreement or any
of the other Loan Documents) or other proceeding (including, without limitation,
any threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Agent and each Bank, and each Affiliate thereof and
their respective directors, officers, employees and agents, upon demand for any
expenses (including, without limitation, legal fees) incurred in connection with
any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
SECTION 9.04. Setoffs; Sharing of Set-Offs. (a) The Borrower hereby grants
to each Bank, as security for the full and punctual payment and performance of
the obligations of the Borrower
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under this Agreement, a continuing lien on and security interest in all deposits
and other sums credited by or due from such Bank to the Borrower or subject to
withdrawal by the Borrower; and regardless of the adequacy of any collateral or
other means of obtaining repayment of such obligations, each Bank may at any
time upon or after the occurrence of any Event of Default, and without notice to
the Borrower, set off the whole or any portion or portions of any or all such
deposits and other sums against such obligations, whether or not any other
Person or Persons could also withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising any right
of set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest owing with respect to the Notes held
by it which is greater than the proportion received by any other Bank in respect
of the aggregate amount of all principal and interest owing with respect to the
Note held by such other Bank, the Bank receiving such proportionately greater
payment shall purchase such participations in the Notes held by the other Banks
owing to such other Banks, and/or such other adjustments shall be made, as may
be required so that all such payments of principal and interest with respect to
the Note held by the Banks owing to such other Banks shall be shared by the
Banks pro rata; provided that (i) nothing in this Section shall impair the right
of any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under the Notes, and (ii) if all or any
portion of such payment received by the purchasing Bank is thereafter recovered
from such purchasing Bank, such purchase from each other Bank shall be rescinded
and such other Bank shall repay to the purchasing Bank the purchase price of
such participation to the extent of such recovery together with an amount equal
to such other Bank's ratable share (according to the proportion of (x) the
amount of such other Bank's required repayment to (y) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.05. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided that no such amendment or waiver
shall, unless signed by all the Banks, (i) change the Commitment of any Bank or
subject any Bank to any additional obligation, (ii) change the principal of or
rate of interest on any Loan or any fees hereunder, (iii) change the date fixed
for any payment of principal of or interest on any Loan or any fees hereunder,
(iv) change the amount of principal, interest or fees due on any date fixed for
the payment thereof, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the percentage of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement, (vi) change the manner of
application of any payments made under this Agreement or the Notes, (vii)
release or substitute all or any substantial part of the collateral (if any)
held as security for the Loans, or (viii) release any guaranty given to support
payment of the Loans.
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(b) The Borrower will not solicit, request or negotiate for or
with respect to any proposed waiver or amendment of any of the provisions of
this Agreement unless each Bank shall be informed thereof by the Borrower and
shall be afforded an opportunity of considering the same and shall be supplied
by the Borrower with sufficient information to enable it to make an informed
decision with respect thereto. Executed or true and correct copies of any waiver
or consent effected pursuant to the provisions of this Agreement shall be
delivered by the Borrower to each Bank forthwith following the date on which the
same shall have been executed and delivered by the requisite percentage of
Banks. The Borrower will not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its capacity as such) as consideration for or as an
inducement to the entering into by such Bank of any waiver or amendment of any
of the terms and provisions of this Agreement unless such remuneration is
concurrently paid, on the same terms, ratably to all such Banks.
SECTION 9.06. Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.07. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement.
(b) Upon the prior consent of the Borrower (which consent
shall not be unreasonably withheld), any Bank may at any time sell to one or
more Persons (each a "Participant") participating interests in any Loan owing to
such Bank, any Note held by such Bank, any Commitment hereunder or any other
interest of such Bank hereunder. In the event of any such sale by a Bank of a
participating interest to a Participant, such Bank's obligations under this
Agreement shall remain unchanged, such Bank shall remain solely responsible for
the performance thereof, such Bank shall remain the holder of any such Note for
all purposes under this Agreement, and the Borrower and the Agent shall continue
to deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i) the change
of any date fixed for the payment of principal of or interest on the related
Loan or Loans, (ii) the change of the amount of any principal, interest or fees
due on any date fixed for the payment thereof with respect to the related Loan
or Loans, (iii) the change of the principal of the related Loan or Loans, (iv)
any change in the rate at which either interest is payable thereon or (if the
Participant is entitled to any part thereof) commitment fee is payable hereunder
from the rate at which the Participant is entitled to receive interest or
commitment fee (as the case may be) in respect of such participation, (v) the
release or substitution of all or any substantial part of the collateral (if
any) held as security for the Loans, or (vi) the release of any guaranty given
to support payment of the Loans. Each Bank selling a participating interest in
any Loan, Note, Commitment or other interest under this Agreement shall, within
10 Domestic Business Days of such sale, provide the Borrower and the Agent with
written notification stating that such sale has occurred and identifying the
Participant and the interest purchased by such Participant. The
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Borrower agrees that each Participant shall be entitled to the benefits of
Article VIII with respect to its participation in Loans outstanding from time to
time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or a proportionate part of all,
of its rights and obligations under this Agreement, the Notes and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance in the form attached hereto as Exhibit
G, executed by such Assignee, such transferor Bank and the Agent (and, in the
case of an Assignee that is not then a Bank or an Affiliate of a Bank, by the
Borrower); provided that (i) no interest may be sold by a Bank pursuant to this
paragraph (c) unless the Assignee shall agree to assume ratably equivalent
portions of the transferor Bank's Commitment, (ii) the amount of the Commitment
of the assigning Bank subject to such assignment (determined as of the effective
date of the assignment) shall be equal to $2,500,000 (or any larger multiple of
$500,000), (iii) if no Default shall have occurred and be continuing, no
interest may be sold by a Bank pursuant to this paragraph (c) to any Assignee
that is not then a Bank or an Affiliate of a Bank without the consent of the
Borrower, which consent shall not be unreasonably withheld and (iv) a Bank may
not have more than two direct Assignees that are not then Banks at any one time.
Upon (A) execution of the Assignment and Acceptance by such transferor Bank,
such Assignee, the Agent and (if applicable) the Borrower, (B) delivery of an
executed copy of the Assignment and Acceptance to the Borrower and the Agent,
(C) payment by such Assignee to such transferor Bank of an amount equal to the
purchase price agreed between such transferor Bank and such Assignee, and (D)
payment of a processing and recordation fee of $2,500 to the Agent, such
Assignee shall for all purposes be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank under this Agreement (including,
without limitation, the rights of a Bank under Section 2.03) to the same extent
as if it were an original party hereto with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by the Borrower, the Banks or the Agent shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
transferor Bank, the Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note is issued to each of such Assignee and such
transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial and other information in such Bank's possession concerning the
Borrower which has been delivered to such Bank by the Borrower pursuant to this
Agreement or which has been delivered to such Bank by the Borrower in connection
with such Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Borrower's prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a different Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
(f) Anything in this Section 9.07 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank
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or the United States Treasury as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and Operating Circular
issued by such Federal Reserve Bank, provided that any payment in respect of
such assigned Loans and/or obligations made by the Borrower to the assigning
and/or pledging Bank in accordance with the terms of this Agreement shall
satisfy the Borrower's obligations hereunder in respect of such assigned Loans
and/or obligations to the extent of such payment. No such assignment shall
release the assigning and/or pledging Bank from its obligations hereunder.
SECTION 9.08. Confidentiality. Each Bank agrees to exercise
reasonable efforts to keep any information delivered or made available by the
Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, however, that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority having jurisdiction over such Bank, (iv)
which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Bank's legal counsel
and independent auditors and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 9.08.
SECTION 9.09. Representation by Banks. Each Bank hereby
represents that it is a commercial lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; provided,
however, that, subject to Section 9.07, the disposition of the Note or Notes
held by that Bank shall at all times be within its exclusive control.
SECTION 9.10. Obligations Several. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the obligations
or commitment of any other Bank hereunder. Nothing contained in this Agreement
and no action taken by the Banks pursuant hereto shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.11. Survival of Certain Obligations. Sections
8.03(a), 8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder,
shall survive, and shall continue to be enforceable notwithstanding, the
termination of this Agreement and the Commitments and the payment in full of the
principal of and interest on all Loans.
SECTION 9.12. Georgia Law. This Agreement and each Note shall be construed
in accordance with and governed by the law of the State of Georgia.
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SECTION 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of
interest due or payable hereunder or under the Notes exceed the maximum rate of
interest allowed by applicable law, and in the event any such payment is
inadvertently made to any Bank by the Borrower or inadvertently received by any
Bank, then such excess sum shall be credited as a payment of principal, unless
the Borrower shall notify such Bank in writing that it elects to have such
excess sum returned forthwith. It is the express intent hereof that the Borrower
not pay and the Banks not receive, directly or indirectly in any manner
whatsoever, interest in excess of that which may legally be paid by the Borrower
under applicable law.
SECTION 9.15. Interpretation. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.16. Consent to Jurisdiction. The Borrower (a)
submits to personal jurisdiction in the State of Georgia, the courts thereof and
the United States District Courts sitting therein, for the enforcement of this
Agreement, the Notes and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (c) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Agent from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
BLESSINGS CORPORATION
By: _________________________(SEAL)
Title:
000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Executive Vice President
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
WACHOVIA BANK OF GEORGIA, N.A., as Agent
By: __________________________(SEAL)
Title: Vice President
Wachovia Bank of Georgia, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Manager - Loan Syndications
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
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COMMITMENTS
$16,500,000 WACHOVIA BANK OF NORTH CAROLINA, N.A.
By: ___________________________(SEAL)
Title: Vice President
Lending Office
Wachovia Bank of North Carolina, N.A.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: Southeast Corporate Banking Group
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
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$8,500,000 FIRST FIDELITY BANK, N. A. (SEAL)
By: ___________________________
Title:
Lending Xxxxxx
0000 Xxxxxxx 00
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
------------
TOTAL COMMITMENTS:
$ 25,000,000
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SCHEDULE 4.08
Existing Subsidiaries
Name of Subsidiary Jurisdiction of Incorporation
Edison Plastics International, Inc. Delaware
Edison Exports, Inc., FSC Limited Jamaica
ASPEN Industrial, S.A. de C.V. Mexico
Nacional de Envases Plasticos,
S.A. de C.V. (NEPSA) Mexico
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EXHIBIT A
NOTE
$____________ Atlanta, Georgia
October 25, 1995
For value received, BLESSINGS CORPORATION, a Delaware corporation (the
"Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Lending Office, the principal sum of
________________ ______________________________ and No/100 Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of each Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Note on the dates and at the rate or rates provided for in the
Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Wachovia
Bank of Georgia, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, or
such other address as may be specified from time to time pursuant to the Credit
Agreement.
All Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto and all repayments of
the principal thereof shall be recorded by the Bank in its business records or
on the schedule attached hereto, and, prior to any transfer hereof, endorsed by
the Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make, or any error of the Bank in making, any such recordation or endorsement
shall not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This note is one of the Notes referred to in the Credit
Agreement dated as of October 25, 1995 among the Borrower, the banks listed on
the signature pages thereof and their successors and assigns and Wachovia Bank
of Georgia, N.A., as Agent (as the same may be amended or modified from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment and the repayment hereof and the acceleration of
the maturity hereof.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
The Borrower agrees, in the event that this note or any
portion hereof is collected by law or through an attorney at law, to pay all
reasonable costs of collection, including, without limitation, reasonable
attorneys' fees.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed under seal, by its duly authorized officer as of the day and year
first above written.
BLESSINGS CORPORATION
By: ______________________________
Title:
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Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Type Amount Amount of
of Interest of Principal Maturity Notation
Date Loan1 Rate Loan Repaid Date Made By
---- ----- ------- ------ --------- -------- --------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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1 i.e., a Base Rate or Euro-Dollar Loan.
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EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Dear Sirs:
We have acted as counsel for Blessings Corporation, a Delaware
corporation (the "Borrower") in connection with the Credit Agreement (the
"Credit Agreement") dated as of October 25, 1995 among the Borrower, the banks
listed on the signature pages thereof and Wachovia Bank of Georgia, N.A., as
Agent.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. We have assumed for purposes of our opinions set
forth below that the execution and delivery of the Credit Agreement by each Bank
and by the Agent have been duly authorized by each Bank and by the Agent. As to
questions of fact relating to the Borrower material to such opinions, we have
relied upon representations of appropriate officers of the Borrower.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware and has all corporate
powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes (i) are within the Borrower's corporate powers,
(ii) have been duly authorized by all necessary corporate action, (iii) require
no action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment, injunction, order, decree
or other instrument which to our knowledge is binding upon the Borrower and (v)
to our knowledge, except as provided in the Credit Agreement, do not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement
of the Borrower, enforceable against the Borrower in accordance with its terms,
and the Notes constitute valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as such
enforceability may
A#0003877.05
be limited by: (i) bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles of
equity.
4. To our knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which
could materially adversely affect the business, consolidated financial position
or consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner questions the
validity or enforceability of the Credit Agreement or any Note.
5. Each of the Borrower's Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7. Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
We are qualified to practice in the Commonwealth of Virginia and
do not purport to be experts on any laws other than the laws of the United
States and the Commonwealth of Virginia and with respect to the opinions
contained in paragraph 1, the corporate laws of the State of Delaware, and this
opinion is rendered only with respect to such laws. We have made no independent
investigation of the laws of any other jurisdiction.
We express no opinion as to the laws of any jurisdiction wherein
any Bank may be located which limits rates of interest which may be charged or
collected by such Bank other than in paragraph 3 with respect to the
Commonwealth of Virginia.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you or any Assignee,
Participant or other Transferee under the Credit Agreement, without our prior
written consent.
Very truly yours,
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EXHIBIT C
OPINION OF
XXXXXX XXXXXXX XXXXXXXXX & XXXX, PLLC, SPECIAL COUNSEL
FOR THE AGENT
[Date as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Dear Sirs:
We have participated in the preparation of the Credit Agreement
(the "Credit Agreement") dated as of October 25, 1995 among Blessings
Corporation, a Delaware corporation (the "Borrower"), the banks listed on the
signature pages thereof (the "Banks") and Wachovia Bank of Georgia, N.A., as
Agent (the "Agent"), and have acted as special counsel for the Agent for the
purpose of rendering this opinion pursuant to Section 3.01(d) of the Credit
Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement and each of the
Notes by or on behalf of the Borrower, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of the Borrower and each
Note constitutes valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations generally; (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and (iii) the enforceability
of certain of the remedial, waiver and other provisions of the Credit Agreement
and the Notes may be further limited by the laws of the State of Georgia;
provided, however, such additional laws do not, in our opinion, substantially
A#0003877.05
interfere with the practical realization of the benefits expressed in the Credit
Agreement and the Notes, except for the economic consequences of any procedural
delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the
effect (if any) of any law of any jurisdiction except the State of Georgia. We
express no opinion as to the effect of the compliance or noncompliance of the
Agent or any of the Banks with any state or federal laws or regulations
applicable to the Agent or any of the Banks by reason of the legal or regulatory
status or the nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you and any
Assignee, Participant or other Transferee under the Credit Agreement without our
prior written consent.
Very truly yours,
XXXXXX XXXXXXX XXXXXXXXX & XXXX, PLLC
By:____________________________
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EXHIBIT D
CLOSING CERTIFICATE
OF
BLESSING CORPORATION
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of October 25, 1995, among Blessings Corporation (the "Borrower"),
Wachovia Bank of Georgia, N.A., as Agent and the Banks listed on the signature
pages thereof. Capitalized terms used herein have the meanings ascribed thereto
in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
___________________, the duly authorized ____________________ of the Borrower,
hereby certifies to the Agent and the Banks that: (i) no Default has occurred
and is continuing on the date hereof; and (ii) the representations and
warranties of the Borrower contained in Article IV of the Credit Agreement are
true on and as of the date hereof.
Certified as of the ___ day of October, 1995.
BLESSINGS CORPORATION
-------------------------------------
Name:
Title:
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EXHIBIT E
BLESSINGS CORPORATION
SECRETARY'S CERTIFICATE
The undersigned, _____________, _______ Secretary of Blessings
Corporation, a Delaware corporation (the "Borrower") hereby certifies that he
has been duly elected, qualified and is acting in such capacity and that, as
such, he is familiar with the facts herein certified and is duly authorized to
certify the same, and hereby further certifies, in connection with the Credit
Agreement dated as of October 25, 1995 among the Borrower, Wachovia Bank of
Georgia, N.A., as Agent and the Banks listed on the signature pages thereof
that:
1. Attached hereto as Exhibit A is a complete and correct copy of
the Certificate of Incorporation of the Borrower as in full force and effect on
the date hereof as certified by the Secretary of State of the State of Delaware,
the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of
the Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of
the resolutions duly adopted by the Board of Directors of the Borrower on
___________ __, 19__ approving, and authorizing the execution and delivery of,
the Credit Agreement, the Notes (as such term is defined in the Credit
Agreement) and the other Loan Documents (as such term is defined in the Credit
Agreement) to which the Borrower is a party. Such resolutions have not been
repealed or amended and are in full force and effect, and no other resolutions
or consents have been adopted by the Board of Directors of the Borrower in
connection therewith.
4. ____________, who as ________________________ of the Borrower
signed the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party, was duly elected, qualified and acting as such at the time
he signed the Credit Agreement, the Notes and other Loan Documents to which the
Borrower is a party, and his signature appearing on the Credit Agreement, the
Notes and the other Loan Documents to which the Borrower is a party is his
genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as
of the ____ day of October, 1995.
--------------------------------
Name:
Title:
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EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of October 25,
1995 (as modified and supplemented and in effect from time to time, the "Credit
Agreement") among Blessings Corporation, the Banks from time to time parties
thereto, and Wachovia Bank of Georgia, N.A., as Agents. Capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement
____________________, the duly authorized __________________, of Blessings
Corporation, hereby certifies to the Agent and the Banks that the information
contained in the Compliance Check List attached hereto is true, accurate and
complete as of ____________, 199_, and that no Default is in existence on and as
of the date hereof.
BLESSINGS CORPORATION
By: ___________________________
Title:
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COMPLIANCE CHECKLIST
Blessings Corporation
As of ____________, _____
1. Minimum Consolidated Tangible Net Worth (Section 5.03).
------------------------------------------------------
Consolidated Tangible Net
Worth will at no time be less than $39,000,000 plus the sum of (i) 50%
of the cumulative Reported Net Income of the Borrower and its
Consolidated Subsidiaries during any period after December 30, 1995
(taken as one accounting period), calculated quarterly (but excluding
from such calculations of Reported Net Income any quarter in which the
Reported Net Income of the Borrower and its Consolidated Subsidiaries
is negative), and (ii) 100% of the cumulative Net Proceeds of Capital
Stock received during any period after December 30, 1995 calculated
quarterly.
A. Reported Net Income
(12/30/95 through __/__/__) $ __________.__
B. Net Proceeds of Capital Stock
(12/30/95 through __/__/__) $ __________.__
Minimum Consolidated Tangible Net Worth
($39,000,000 + .5(A) + B) $ __________.__
Actual Consolidated Tangible Net Worth
as of __/__/___ $ __________.__
2. Ratio of Funded Debt to Total Capitalization (Section 5.04). The ratio
of Funded Debt to Total Capitalization will at all times be less than
or equal .50 to 1.00.
A. Funded Debt for Four Fiscal Quarters Ended
__/__/____ (See Schedule 1 attached)$ __________.__
----------
B. Total Capitalization for Four Fiscal Quarters Ended
__/__/____ (See Schedule 2 attached)$ __________.__
----------
Actual Ratio of A to B _______ to 1.00
Maximum Ratio .50 to 1.00
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3. Ratio of Funded Debt to EBITDA (Section 5.05). As of the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending December 31,
1995, the ratio of Funded Debt on such date to EBITDA for the
immediately preceding 12 months then ended shall not exceed 3.0 to 1.0.
A. Funded Debt as of Fiscal Quarter
Ended __/__/_____ (See Schedule 1 attached)$ __________.__
----------
B. EBITDA for Four Fiscal Quarters
Ended __/__/_____ (See Schedule 3 attached)$ __________.__
----------
Actual Ratio of A to B _____ to 1.00
Maximum Ratio 3.00 to 1.00
4. Loans or Advances (Section 5.06). Neither the Borrower nor any of its
--------------------------------
Subsidiaries shall
make loans or advances to any Person except: (i) loans or advances to
employees not exceeding Two Million Dollars ($2,000,000) in the
aggregate outstanding in the ordinary course of business and
consistently with practices existing on the Closing Date; (ii) deposits
required by government agencies or public utilities; (iii) loans or
advances to Significant Domestic Subsidiaries which have executed and
delivered to the Agent a guaranty agreement and delivered all other
documents as required by Section 5.20; and (iv) in addition to loans or
advances permitted by the foregoing clauses (i) through (iii), loans or
advances not exceeding in the aggregate at any time outstanding an
amount equal to $5,000,000; provided that after giving effect to the
making of any loans, advances or deposits permitted by clause (i),
(ii), (iii) or (iv) of this Section, no Default shall have occurred and
be continuing.
Outstanding Loans or Advances to employees $ __________.__
Outstanding Loans or Advances not permitted by
clauses (i) through (iii) of Section 5.06 $ __________.__
5. Negative Pledge (Section 5.08). Neither the Borrower nor any
Consolidated Subsidiary will create, incur, assume or suffer to exist,
any Lien or any Asset now owned or hereafter acquired by it, except:
...
(j) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt (other than indebtedness represented by the
Notes) in an aggregate principal amount at any time outstanding not to
exceed 10% of Consolidated Tangible Net Worth.
A. Consolidated Tangible Net Worth
as of __/__/____ $ __________.__
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B. Outstanding Principal Amount of Debt secured
by Liens not permitted by clauses (a) through (i)
of Section 5.08 as of __/__/_____ $ __________.__
C. Maximum permissible Liens not permitted
by clauses (a) through (i) in Section 5.08 (.10(A))$ __________.__
6. Guaranty of Significant Domestic Subsidiaries (Section 5.20)
The Borrower shall cause any Person which becomes a Significant
Domestic Subsidiary after the Closing Date to become a party to, and
agree to be bound by the terms of, a guaranty agreement substantially
in the form attached as Exhibit I to the Credit Agreement, executed and
delivered to the Agent within 45 days of the last day of the Fiscal
Quarter in which such Person became a Significant Domestic Subsidiary.
A Subsidiary is a Significant Domestic Subsidiary if it (i) is
organized under the laws of the United States of American or any state,
territory or possession thereof or the District of Columbia; and (ii)
either (x) has assets which constitute more than 10% of Consolidated
Total Assets at the end of the most recent Fiscal Quarter, or (y)
contributed more than 10% of Consolidated Operating Profits during the
most recent Fiscal Quarter and the 3 Fiscal Quarters immediately
preceding such Fiscal Quarter (or, with respect to any Subsidiary which
existed during the entire 4-Fiscal Quarter period but was acquired by
the Borrower during such period, which would have contributed more than
10% of Consolidated Operating Profits during such period had it been a
Subsidiary for the entire period).
A. Consolidated Total Assets as of __/__/____ $ __________.__
B. Consolidated Operating Profits for Four Fiscal
Quarters ended __/__/_____ $ __________.__
Operating Profits for Four
Fiscal Quarters ended
Assets as of __/__/____ __/__/____ (Guaranty
(Guaranty Threshold is equal Threshold is equal to .10(B)
Domestic Subsidiaries to .10(A) or $ _______.__) or $ _______.__)
--------------------- -------------------------- ----------------
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Schedule 1
Funded Debt
Outstanding Principal Balances As of ___/___/_____
(a) Debt Under Credit Agreement $ _________.__
(b) Other Debt for Borrowed Money or Evidenced by Bonds, Notes, Etc.
Interest Outstanding
Obligee Rate Maturity Balance
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
============
Total $ _________.__
(c) Guaranties
Outstanding
Interest Balance (Primary
Obligee Rate Maturity Debt)
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
============
Total $ __________.__
(d) Deferred Purchase Price of Property or Services
Interest Outstanding
Obligee Rate Maturity Balance
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
___________________ ____% __/__/____ $ _______.00
============
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Total $ __________.__
(e) Capital Leases
Interest Outstanding
Lessor Equipment Rate Maturity Balance
------ --------- ---- -------- -------
_________________ ________________ ____% __/__/____ $ _______.00
_________________ ________________ ____% __/__/____ $ _______.00
_________________ ________________ ____% __/__/____ $ _______.00
_________________ ________________ ____% __/__/____ $ _______.00
============
Total $ __________.__
(f) Redeemable Preferred Stock
(aggregate amount redeemable in respect of
shares issued and outstanding)
Total $ __________.__
(h) Other Debt (Banker's acceptances, Debt secured by Liens, exposure under
letters of credit, etc.)
Interest [Outstanding
Obligee Description Rate Maturity Balance]
[Contingent
Exposure]
_______________ _____________ ____% __/__/____ $ _______.00
_______________ _____________ ____% __/__/____ $ _______.00
_______________ _____________ ____% __/__/____ $ _______.00
_______________ _____________ ____% __/__/____ $ _______.00
============
Total $ __________.__
TOTAL FUNDED DEBT
(sum of (a) through (h), inclusive) $ __________.__
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Schedule 2
Total Capitalization
As of __/__/____
(a) Funded Debt (adjusted according to definition of Total Capitalization)
(i) Funded Debt (from Schedule 1)
as of ___/___/______ $ _________.__
(ii) Debt under Guaranties (line (c) on Schedule 1)$ _________.__
(iii) Debt under letters of credit $ _________.__
(iv) Debt of others secured by Liens $ _________.__
Funded Debt for purposes of Total Capitalization
(i) - ((ii) + (iii) + (iv)) $ _________.__
(b) Net Worth of the Borrower
(i) Stockholder's Equity of the Borrower
as of __/__/_____ $ _________.__
(ii) Stockholder's Equity of Consolidated
Subsidiaries $ ________.__
Net Worth of the Borrower ((i) - (ii)) $ ________.__
Total Capitalization
as of __/__/_____((a)+(b)) $ ________.__
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Schedule 3
EBITDA
Four Fiscal Quarters ended __/__/____
(a) Fiscal Quarter Ended __/__/____
Net Income $ _______.__
Interest Expense $ _______.__
Depreciation $ _______.__
Taxes $ _______.__
Amortization $ _______.__
Total For Quarter $_______.__
(b) Fiscal Quarter Ended __/__/____
Net Income $ _______.__
Interest Expense $ _______.__
Depreciation $ _______.__
Taxes $ _______.__
Amortization $ _______.__
Total For Quarter $ _______.__
(c) Fiscal Quarter Ended __/__/____
Net Income $ _______.__
Interest Expense $ _______.__
Depreciation $ _______.__
Taxes $ _______.__
Amortization $ _______.__
Total For Quarter $ _______.__
(d) Fiscal Quarter Ended __/__/____
Net Income $ _______.__
Interest Expense $ _______.__
Depreciation $ _______.__
Taxes $ _______.__
Amortization $ _______.__
Total For Quarter $ _______.__
EBITDA [(a) + (b) + (c) + (d)] $ _______.__
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EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Dated ________________ __, ____
Reference is made to the Credit Agreement dated as of October
25, 1995 (together with all amendments and modifications thereto, the "Credit
Agreement") among Blessings Corporation, a Delaware corporation (the
"Borrower"), the Banks (as defined in the Credit Agreement) and Wachovia Bank of
Georgia, N.A., as Agent (the "Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning.
_____________________________________________________ (the "Assignor") and
_____________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse to
the Assignor, and the Assignee hereby purchases and assumes from the Assignor, a
______% interest in and to all of the Assignor's rights and obligations under
the Credit Agreement as of the Effective Date (as defined below) (including,
without limitation, a ______% interest (which on the Effective Date hereof is
$_______________) in the Assignor's Commitment and a ______% interest (which on
the Effective Date hereof is $_______________) in the Loans owing to the
Assignor and a ______% interest in the Note held by the Assignor (which on the
Effective Date hereof is $__________________)).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement, any other
instrument or document furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other Loan Document or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of the
interest being assigned by it hereunder, that such interest is free and clear of
any adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$_________________ and the aggregate outstanding principal amount of Loans owing
to it (without giving effect to assignments thereof which have not yet become
effective) is $_________________; (ii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; and (iii) attaches the Note
referred to in paragraph 1 above and requests that the Agent exchange such Note
as follows: [a new Note dated _______________, ____ in the principal amount of
_________________ payable to the order of the Assignee] [new Notes as follows: a
Note dated _________________, ____ in the principal amount of $_______________
payable to the order of the Assignor and a Note dated ______________, ____ in
the principal amount of $______________ payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.04(a) thereof (or any more recent
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financial statements of the Borrower delivered pursuant to Section 5.01(a) or
(b) thereof) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a bank or financial institution; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; (vi) specifies as its Lending Office (and address for
notices) the office set forth beneath its name on the signature pages hereof,
(vii) represents and warrants that the execution, delivery and performance of
this Assignment and Acceptance are within its corporate powers and have been
duly authorized by all necessary corporate action[, and (viii) attaches the
forms prescribed by the Internal Revenue Service of the United States certifying
as to the Assignee's status for purposes of determining exemption from United
States withholding taxes with respect to all payments to be made to the Assignee
under the Credit Agreement and the Notes or such other documents as are
necessary to indicate that all such payments are subject to such taxes at a rate
reduced by an applicable tax treaty].*
4. The Effective Date for this Assignment and Acceptance shall be
_______________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent [and to the Borrower for execution by the Borrower].**
5. Upon such execution and acceptance by the Agent [and
execution by the Borrower]**, from and after the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent rights and
obligations have been transferred to it by this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent its rights and obligations have been transferred to the Assignee by
this Assignment and Acceptance, relinquish its rights (other than under Section
8.03 and Section 9.03 of the Credit Agreement) and be released from its
obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent [and
execution by the Borrower]**, from and after the Effective Date, the Agent shall
make all payments in respect of the interest assigned hereby to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments for
periods prior to such acceptance by the Agent directly between themselves.
--------
* If the Assignee is organized under the laws of a jurisdiction outside the
United States.
** If the Assignee is not a Bank or an Affiliate of a Bank prior to the
Effective Date, and a Default has not occurred and is continuing.
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7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:____________________________________
Title:
[NAME OF ASSIGNEE]
By:____________________________________
Title:
Lending Office:
[Address]
WACHOVIA BANK OF GEORGIA, N.A., as Agent
By:____________________________________
Title:
BLESSINGS CORPORATION*
By:____________________________________
Title:
--------
* If the Assignee is not a Bank or an Affiliate of a Bank prior to the
Effective Date, and Default has not occurred and is continuing.
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EXHIBIT H
NOTICE OF BORROWING
__________, 19__
Wachovia Bank of Georgia, N.A., as Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Manager - Loan Syndications
Re: Credit Agreement (as amended and modified from time
to time, the "Credit Agreement") dated as of October
25, 1995 by and among Blessings Corporation, the
Banks from time to time parties thereto, and Wachovia
Bank of Georgia, N.A., as Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used
herein shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to
Section 2.02 of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing][Base
Rate Borrowing] in the aggregate principal amount of $___________ to be made on
________, 19__, and for interest to accrue thereon at the rate established by
the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of
the Interest Period with respect to the Euro-Dollar Loans comprising such
Euro-Dollar Borrowing shall be [1 month] [2 months] [3 months] [6 months].
The Borrower has caused this Notice of Borrowing to be
executed and delivered by its duly authorized officer this ___ day of ____,
199_.
BLESSINGS CORPORATION
By:______________________
Title:
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EXHIBIT I
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") is made as of the
____ day of _________, 1995, by the undersigned (hereinafter collectively
referred to as the "Guarantors" and individually as a "Guarantor"), to and for
the benefit of WACHOVIA BANK OF GEORGIA, N.A., a national banking association in
its capacity as Agent (the "Agent") for the Banks as defined in that certain
Credit Agreement dated October 25, 1995 between Blessings Corporation, a
Delaware corporation (the "Borrower"), the Agent and the Banks (as amended,
modified or extended from time to time, the "Credit Agreement") and for the
benefit of the Banks. The Banks have agreed to extend credit to the Borrower in
the principal amount of up to $25,000,000 upon the terms and conditions set
forth in the Credit Agreement. As a condition to extending such credit, the
Banks have required that any Subsidiary which is or becomes a Significant
Domestic Subsidiary execute and deliver a guaranty agreement to the Agent. The
undersigned is a Significant Domestic Subsidiary. Capitalized terms used but not
defined herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
NOW THEREFORE, in consideration of the Loans extended by the
Banks to the Borrower under the Credit Agreement and for other consideration,
the receipt and sufficiency of which are hereby acknowledged, each Guarantor
agrees as follows:
1. Guaranty. Each Guarantor hereby unconditionally,
absolutely, jointly and severally, guarantees to the Agent, the Banks and their
successors and assigns that (a) the Borrower will duly and punctually pay and
perform, at the place specified therefor, all indebtedness, obligations and
liabilities, direct or indirect, matured or unmatured, primary or secondary,
certain or contingent, of the Borrower to the Banks or the Agent now or
hereafter owing or incurred pursuant to the Credit Agreement or any of the other
Loan Documents (including without limitation reasonable attorneys' fees and
other costs and expenses incurred by the Agent or the Banks in attempting to
collect or enforce any of the foregoing after an Event of Default) accrued in
each case to the date of payment hereunder (collectively, the "Obligations" and
individually, an "Obligation"); and (b) the Borrower will perform in all other
respects its obligations under the Loan Documents in accordance with the terms
of the Loan Documents.
2. Guaranty Absolute. This Guaranty is an absolute,
unconditional, continuing and unlimited guaranty of the full and punctual
payment and performance by the Borrower of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that the
Agent or the Banks first attempt to collect any of the Obligations from the
Borrower, any other Guarantor, or any other person, or resort to any security
for the Obligations or this Guaranty or to other means of obtaining payment of
any of the Obligations which the Agent or the Banks now have or may acquire
after the date hereof, or upon any other contingency whatsoever, and the Agent
may proceed hereunder against any Guarantor in the first instance to collect the
Obligations when due, without first proceeding against the Borrower or any other
Person (including without limitation any other Guarantor) and without first
resorting to any security or other means of obtaining payment. The obligations
of each Guarantor hereunder are irrevocable, absolute and unconditional,
irrespective of genuineness, validity, regularity or enforceability of the
Obligations or any security given therefor or in connection therewith or any
other circumstance (except payment to, or express written waiver, release or
consent by, the Agent acting pursuant to the provisions of the Credit Agreement)
which might otherwise constitute a legal or equitable discharge of a surety or
guarantor. This Guaranty shall be in addition to any other guaranty or other
security for the Obligations, and it shall not be prejudiced or rendered
unenforceable by the invalidity of any such other guaranty or security. The
liability of each Guarantor hereunder shall in no way be affected or impaired by
any acceptance by the Agent or the Banks of any direct or indirect security for,
or other guaranties of, the Obligations or any other indebtedness,
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liability or obligations of the Borrower, any Guarantor or other Person to the
Agent or the Banks or by any failure, delay, neglect or omission of the Agent or
the Banks to realize upon or protect any Obligations or any such other
indebtedness, liability or obligation or any notes or other instruments
evidencing the same or any direct or indirect security therefor, or by any
approval, consent, waiver or other action taken or omitted to be taken by the
Agent or the Banks. Upon any default by the Borrower in the payment and
performance of the Obligations (and after the expiration of any applicable grace
period provided in the Loan Documents), the liabilities and obligations of the
Guarantors hereunder shall, at the option of the Agent, become forthwith due and
payable to the Agent without demand or notice of any nature, all of which are
expressly waived by each Guarantor. Payments by the Guarantors, or any of them,
hereunder may be required by the Agent on any number of occasions.
3. No Impairment. Each Guarantor agrees that its obligations
hereunder shall not be impaired, modified, changed, released or limited in any
manner whatsoever by any impairment, modification, change, release or limitation
of liability of the Borrower or any other Guarantor or its estate by reason of
the commencement of any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution or composition of the Borrower
or any other Guarantor or its property under any law relating to bankruptcy,
insolvency, reorganization, relief of debtors or seeking appointment of a
receiver, trustee, custodian or similar official for the Borrower or any other
Guarantor or for all or part of its property.
4. Guarantors' Further Agreement to Pay. Each Guarantor
further agrees to pay to the Agent forthwith upon demand, in funds immediately
available to the Agent, all costs and expenses (including court costs and
reasonable attorneys' fees) incurred or expended by the Agent or any Bank in
connection with the enforcement of this Guaranty.
5. Termination of Guaranty. It is the intention hereof that
the Guarantors shall remain liable under this Guaranty until (i) all of the
Obligations have been fully paid and performed notwithstanding any act, omission
or thing (except payment to, or express written waiver, release or consent by,
the Agent acting pursuant to the provisions of the Credit Agreement) which might
otherwise operate as a legal or equitable discharge of the Guarantors, and (ii)
the Banks' obligations to make further advances under the Credit Agreement have
terminated. Notwithstanding anything contained herein to the contrary, each
Guarantor agrees that to the extent all or any part of any payment of any of the
Obligations previously received by the Agent or the Bank pursuant to the Loan
Documents or otherwise is subsequently invalidated, voided, declared to be
fraudulent or preferential, set aside, recovered, rescinded or is required to be
retained by or repaid to a trustee, receiver, or any other Person under any
bankruptcy code, common law, or equitable cause, or otherwise required to be
returned by the Agent or any Bank for any reason, whether by court order,
administrative order or settlement, this Guaranty and the obligation or part
thereof intended to be satisfied shall be revived and reinstated and continued
in full force and effect as to each Guarantor's obligations hereunder, and each
Guarantor agrees that it shall immediately pay to the Agent or the Banks the
amount of such payment, notwithstanding any termination of this Guaranty or any
cancellation of any of the Loan Documents.
6. Security; Setoff. In addition to all the rights and
remedies available to the Agent and Banks at law, each Guarantor hereby grants
to the Agent and the Banks, as security for the full and punctual payment and
performance of such Guarantor's obligations hereunder, a continuing lien on and
security interest in all deposits and other sums credited by or due from the
Agent or the Banks to such Guarantor or subject to withdrawal by such Guarantor.
Regardless of the adequacy of any collateral or other means of obtaining
repayment of the Obligations, the Agent and the Banks may at any time and
without notice to any Guarantor, set off the whole or any portion or portions of
any or all deposits and other sums credited by or due from the Agent or the
Banks to a Guarantor or subject to withdrawal by a Guarantor
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against amounts payable under this Guaranty, whether or not any other Person or
Persons could also withdraw money therefrom.
7. Bank's Freedom to Deal with Borrower and Other Parties.
The Agent and the Banks shall be at liberty, without giving notice to or
obtaining the assent of the Guarantors, or any of them, and without relieving
any Guarantor of any liability hereunder, to deal with the Borrower and with
each other party who is now, or after the date hereof becomes, liable in any
manner for any of the Obligations (including, without limitation, any
co-guarantor), in such manner as the Agent and the Banks in their sole
discretion deem fit and to this end each Guarantor hereby gives to the Agent and
the Banks full authority in their sole discretion to do any or all of the
following things: (a) extend credit, make loans and afford other financial
accommodations to the Borrower or to any such other party at such times, in such
amounts and on such terms as the Agent or such Bank may approve, (b) vary the
terms and grant extensions or renewals of any present or future indebtedness or
obligation of the Borrower or of any such other party to the Agent or the Banks,
(c) grant extensions of time, waivers and other indulgences in respect thereof,
(d) vary, exchange, release or discharge, wholly or partially, or delay in or
abstain from perfecting and enforcing any security or guaranty or other means of
obtaining payment of any of the Obligations or any liability under this
Guaranty, which security or guaranty the Agent or the Banks now have or acquire
after the date hereof, (e) accept partial payments from the Borrower or such
other party, (f) release or discharge, wholly or partially, any endorser or
guarantor, and (g) compromise or make any settlement or other arrangement with
the Borrower or any such other party. The Guarantors acknowledge that under the
terms of the Credit Agreement, the Borrower may borrow, repay and reborrow
proceeds of the Loans from time to time and that the outstanding principal
balance of the Loans may be reduced to zero and thereafter increased.
8. Representations and Warranties of Guarantors. Each
Guarantor represents and warrants that:
(a) The execution, delivery and performance of this Guaranty
(i) are within such Guarantor's corporate powers, (ii) have been duly authorized
by all necessary corporate action, (iii) require no action by or in respect of,
or filing with, any governmental body, agency or official, (iv) do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or articles of incorporation
or by-laws of such Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument binding upon such Guarantor, and (v) do not result in
the creation or imposition of any Lien on any asset of such Guarantor (except as
provided in Section 6 hereof).
(b) This Guaranty constitutes a valid and binding agreement
of such Guarantor enforceable in accordance with its terms except as such
enforceability may be (i) limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of
creditors' rights generally, and (ii) subject to general legal and equitable
principles of good faith, fair dealing and equity, as well as considerations of
public policy as the same may be held or deemed to apply.
(c) Such Guarantor's guaranty pursuant to this Guaranty
reasonably may be expected to benefit, directly or indirectly, such Guarantor.
9. Waivers by Guarantors. Each Guarantor hereby waives: (a)
acceptance or notice of acceptance of this Guaranty by the Agent or the Banks;
(b) notice of any action taken or omitted by the Agent or the Banks in reliance
hereon; (c) any duty on the part of the Agent or the Banks to disclose to the
Guarantors, or any of them, any facts they may now or hereafter know regarding
the Borrower or any other Guarantor; (d) notice of presentment and demand for
payment or performance of any of the Obligations; (e) protest and notice of
dishonor or of default to the Guarantors, or any of them, or to any other party
with
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respect to the payment or performance of the Obligations hereby guaranteed; (f)
any and all other notices whatsoever from the Agent or the Banks to which the
Guarantors, or any of them, might otherwise be entitled; and (g) any requirement
that the Agent or the Banks be diligent or prompt in making demands hereunder,
giving notice of any default by the Borrower or asserting any other right of the
Agent or the Banks hereunder. Each Guarantor also irrevocably waives, to the
fullest extent permitted by law, and agrees not to assert or take advantage of
any and all defenses which at any time may be available in respect of such
Guarantor's obligations to the Agent or the Banks hereunder by virtue of: (i)
the statute of limitations in any action hereunder or for the collection or the
performance of any of the Obligations; (ii) the incapacity, lack of authority,
death or disability of any Guarantor or any other Person, or the failure of the
Agent or the Banks to file or enforce a claim against the estate (either in
administration, bankruptcy, or any other proceeding) of the Borrower, any
Guarantor or any other Person; (iii) the failure of the Agent or the Banks to
give notice of any action or non-action on the part of any other Person
whomsoever, in connection with any of the Obligations; (iv) an election of
remedies by the Agent or the Banks which destroys or otherwise impairs any
subrogation rights of the Guarantors, or any of them, the right of a Guarantor
to proceed against the Borrower for reimbursement, or the right of a Guarantor
to seek contribution from any co-guarantor, or all or any combination of such
rights; (v) the failure of the Agent or the Banks to commence an action against
the Borrower, any Guarantor, or any other Person; (vi) any homestead exemption,
valuation, stay, moratorium law or other similar law now or hereafter in effect;
(vii) any defense based on lack of due diligence by the Agent or the Banks in
collection, protection or realization upon any collateral securing the
Obligations; (viii) any and all rights the Guarantors, or any of them, may now
or hereafter have arising under Section 10-7-24 of the Georgia Code; (ix) the
amendment of, supplement to or waiver of any provision of the Credit Agreement,
the Notes or any other Loan Documents, (x) the failure of any Guarantor to
receive any benefit from or as a result of its execution, delivery and
performance of this Guaranty; and (xi) any other legal or equitable defenses
whatsoever to which the Guarantors, or any of them, might otherwise be entitled,
except payment in full of the Obligations or that such Obligations are not yet
due and payable.
10. No Contest with the Agent or the Banks. So long as any
Obligation remains unpaid or undischarged, no Guarantor will, by paying any sum
recoverable hereunder (whether or not demanded by the Agent or the Banks) or by
any means or on any other ground, claim any right of subrogation with respect to
any of the Obligations guaranteed hereby or to any collateral now or hereafter
granted to secure the Obligations or claim any setoff or counterclaim against
the Borrower in respect of any liability of the Guarantors, or any of them, to
the Borrower or of the Borrower to the Guarantors, or any of them, or, in
proceedings under any federal or state bankruptcy code or insolvency proceedings
of any nature, proceed in competition with the Agent or the Banks in respect of
payment hereunder or be entitled to have the benefit of any counterclaim or
proof of claim or dividend or payment by or on behalf of the Borrower or the
benefit of any other security for any Obligation which, now or hereafter, the
Agent or the Banks may hold or in which they may have any share.
11. Remedies Cumulative. Each right, privilege, power and
remedy of the Agent and the Banks under this Guaranty, the Loan Documents or
other agreement or instrument signed by the Borrower or any Guarantors, or under
any other instrument of any other party securing or guaranteeing any of the
Obligations or under applicable laws shall be cumulative and concurrent and the
exercise of any one or more of them shall not preclude the simultaneous or later
exercise by the Agent and the Banks of any or all such other rights, privileges,
powers and remedies.
No failure or delay by the Agent or the Banks to exercise any
right, power or privilege hereunder shall operate as a waiver of any such right,
power or privilege nor shall any single or partial exercise of any right, power
or privilege preclude any other or further exercise thereof. The rights and
remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
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12. Demands and Notices. All notices, requests and other
communications to the parties hereunder shall be in writing and shall be given
(i) to a Guarantor in care of the Borrower at the address for the Borrower set
forth in the Credit Agreement, and (ii) to the Agent at its address set forth in
the Credit Agreement. All notices shall be given in the manner specified in the
Credit Agreement.
13. Amendments, Waiver, Etc. No provision of this Guaranty
can be changed, waived or discharged or terminated except by an instrument in
writing signed by the Agent acting pursuant to the provisions of the Credit
Agreement and the Guarantors and consented to by the Banks as required by the
Credit Agreement. No course of dealing or delay or omission on the part of any
party in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto.
14. Counterparts. This Guaranty may be executed in any
number of counterparts. Each of the counterparts will be considered an original
and all counterparts constitute but one and the same instrument.
15. Pari Passu Obligations. Each Guarantor warrants and
represents that payment obligations and liabilities of such Guarantor under this
Guaranty shall at all times rank pari passu with all other unsecured and
unsubordinated payment obligations and liabilities (including contingent
obligations and liabilities) of such Guarantor (other than those which are
mandatorily preferred by laws or regulations of general application). Each
Guarantor shall assure that the representation set forth herein is true and
correct at all times.
16. Indemnity. Each Guarantor agrees to indemnify the Agent
and the Banks against, and hold the Agent and the Banks harmless from, any loss,
cost, charge, expense (including reasonable attorneys' fees), claims, demands,
suits, damages, penalties, taxes, fines, levies and assessments which may be
asserted or imposed against, or suffered or incurred by, the Agent and the Banks
as a direct or indirect result of any representation or warranty of the Borrower
in any of the Loan Documents or of the Guarantors herein being untrue or
inaccurate in any respect or as a direct or indirect result of the failure by
the Borrower or any Guarantor to observe, perform or comply with any of its
respective covenants, undertakings or obligations set forth in the Loan
Documents or this Guaranty.
17. Maximum Liability. Notwithstanding anything in this
Guaranty to the contrary, the maximum liability of each Guarantor under this
Guaranty shall in no event exceed such Guarantor's Maximum Obligated Amount.
"Maximum Obligated Amount" of any Guarantor shall mean the maximum amount which
could be paid out by such Guarantor without rendering this Guaranty, in whole or
in part, void or voidable under applicable law, including, without limitation,
(i) the Bankruptcy Code of 1978, as amended, and (ii) any applicable state or
federal law relative to fraudulent conveyances.
18. Subordination. In the event that Borrower is now or shall
hereafter become indebted to any Guarantor, each of the Guarantors agrees that
the amount of such indebtedness and all interest thereon shall at all times be
subordinate as to lien, times of payment and in all other respects to all sums
at any time owing to the Banks or the Agent under the Notes or any security
therefor or the Credit Agreement, and that after an Event of Default, no
Guarantor shall be entitled to enforce or receive payment on account of such
other indebtedness until all sums owing to the Banks and the Agent have been
paid.
19. Miscellaneous Provisions. This Guaranty is intended
to take effect as a sealed instrument to be governed by and construed in
accordance with the laws of the State of Georgia (but not including the choice
of law rules thereof). This Guaranty shall bind the successors and assigns of
each Guarantor and shall inure to the benefit of the Agent and each Bank, their
successors and assigns. All words
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herein shall be deemed to refer to the singular, plural, masculine, feminine or
neuter as the identity of the Person or entity may require. The descriptive
headings of the several paragraphs of this Guaranty are inserted for convenience
only and do not constitute a part of this Guaranty.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty
under seal as of the day and year first above written.
GUARANTOR:
[SIGNIFICANT SUBSIDIARIES]
By:___________________________(SEAL)
Title:
ACCEPTED:
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
By:___________________________(SEAL)
Title:
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