Execution Copy
================================================================================
CREDIT AGREEMENT
by and among
CONE XXXXX CORPORATION
as Borrower,
BANK OF AMERICA, N.A.,
as Agent and as Lender
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
January 28, 0000
XXXX XX XXXXXXX SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions and Terms
1.1 Definitions........................................................................................2
1.2 Rules of Interpretation...........................................................................35
ARTICLE II
The Credit Facilities
2.1 Revolving Loans...................................................................................37
2.2 Use of Proceeds...................................................................................40
2.3 Revolving Notes...................................................................................40
ARTICLE III
Letters of Credit
3.1 Letters of Credit.................................................................................41
3.2 Reimbursement and Participations..................................................................41
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1 Interest Rate Options.............................................................................45
4.2 Conversions and Elections of Subsequent Interest Periods..........................................45
4.3 Payment of Interest...............................................................................46
4.4 Prepayments of Eurodollar Rate Loans..............................................................46
4.5 Manner of Payment.................................................................................47
4.6 Fees..............................................................................................47
4.7 Pro Rata Payments.................................................................................48
4.8 Computation of Rates and Fees.....................................................................48
4.9 Deficiency Advances; Failure to Purchase Participations...........................................48
4.10 Intraday Funding..................................................................................49
ARTICLE V
Security
5.1 Security..........................................................................................51
5.2 Further Assurances................................................................................52
i
5.3 Information Regarding Collateral..................................................................52
5.4 Mortgages.........................................................................................53
ARTICLE VI
Change in Circumstances
6.1 Increased Cost and Reduced Return.................................................................55
6.2 Limitation on Types of Loans......................................................................56
6.3 Illegality........................................................................................57
6.4 Treatment of Affected Loans.......................................................................57
6.5 Compensation......................................................................................57
6.6 Taxes.............................................................................................58
ARTICLE VII
Conditions to Making Loans and Issuing Letters of Credit
7.1 Conditions of Initial Advance.....................................................................60
7.2 Conditions of Revolving Loans and Letter of Credit................................................64
ARTICLE VIII
Representations and Warranties
8.1 Organization and Authority........................................................................66
8.2 Loan Documents....................................................................................66
8.3 Solvency..........................................................................................67
8.4 Subsidiaries and Stockholders.....................................................................67
8.5 Ownership Interests...............................................................................67
8.6 Financial Condition...............................................................................67
8.7 Title to Properties...............................................................................68
8.8 Taxes.............................................................................................68
8.9 Other Agreements..................................................................................68
8.10 Litigation........................................................................................69
8.11 Margin Stock......................................................................................69
8.12 Investment Company................................................................................69
8.13 Patents, Etc......................................................................................69
8.14 No Untrue Statement...............................................................................69
8.15 No Consents, Etc..................................................................................70
8.16 Employee Benefit Plans............................................................................70
8.17 No Default........................................................................................71
8.18 Environmental Laws................................................................................71
8.19 Employment Matters................................................................................72
8.20 RICO..............................................................................................72
8.21 Year 2000 Compliance..............................................................................72
ii
ARTICLE IX
Affirmative Covenants
9.1 Financial Reports, Etc............................................................................73
9.2 Maintain Properties...............................................................................75
9.3 Existence, Qualification, Etc.....................................................................75
9.4 Regulations and Taxes.............................................................................75
9.5 Insurance.........................................................................................75
9.6 True Books........................................................................................76
9.7 Year 2000 Compliance..............................................................................76
9.8 Right of Inspection...............................................................................76
9.9 Observe all Laws..................................................................................76
9.10 Governmental Licenses.............................................................................76
9.11 Covenants Extending to Other Persons..............................................................76
9.12 Officer's Knowledge of Default....................................................................76
9.13 Suits or Other Proceedings........................................................................76
9.14 Notice of Environmental Complaint or Condition....................................................77
9.15 Environmental Compliance..........................................................................77
9.16 Indemnification...................................................................................77
9.17 Further Assurances................................................................................77
9.18 Employee Benefit Plans............................................................................78
9.19 Continued Operations..............................................................................78
9.20 New Subsidiaries..................................................................................79
9.21 Controlled Accounts...............................................................................82
9.22 Third-party Consultant............................................................................82
9.23 Post-Closing Deliveries...........................................................................82
ARTICLE X
Negative Covenants
10.1 Financial Covenants...............................................................................84
10.2 Acquisitions......................................................................................85
10.3 Capital Expenditures..............................................................................85
10.4 Liens.............................................................................................86
10.5 Indebtedness......................................................................................87
10.6 Transfer of Assets................................................................................89
10.7 Investments.......................................................................................89
10.8 Merger or Consolidation...........................................................................90
10.9 Restricted Payments...............................................................................90
10.10 Transactions with Affiliates......................................................................90
10.11 Compliance with ERISA, the Code and Foreign Benefit Laws..........................................90
10.12 Fiscal Year.......................................................................................91
10.13 Dissolution, etc..................................................................................91
10.14 Limitations on Sales and Leasebacks...............................................................91
10.15 Rate Hedging Obligations..........................................................................92
iii
10.16 Negative Pledge Clauses...........................................................................92
10.17 Compensation; Reimbursement of Expenses...........................................................92
10.18 Change in Accountants.............................................................................92
10.19 Prepayments, Etc. of Indebtedness.................................................................92
10.20 Partnerships......................................................................................92
ARTICLE XI
Events of Default and Acceleration
11.1 Events of Default.................................................................................93
11.2 Agent to Act......................................................................................96
11.3 Cumulative Rights.................................................................................96
11.4 No Waiver.........................................................................................96
11.5 Allocation of Proceeds............................................................................96
ARTICLE XII
The Agent
12.1 Appointment, Powers, and Immunities...............................................................98
12.2 Reliance by Agent.................................................................................98
12.3 Defaults..........................................................................................99
12.4 Rights as Lender..................................................................................99
12.5 Indemnification...................................................................................99
12.6 Non-Reliance on Agent and Other Lenders..........................................................100
12.7 Resignation of Agent.............................................................................100
ARTICLE XIII
Miscellaneous
13.1 Assignments and Participations...................................................................101
13.2 Notices..........................................................................................103
13.3 Right of Set-off; Adjustments....................................................................104
13.4 Survival.........................................................................................105
13.5 Expenses.........................................................................................105
13.6 Amendments and Waivers...........................................................................105
13.7 Counterparts; Facsimile Signatures...............................................................106
13.8 Termination......................................................................................106
13.9 Indemnification; Limitation of Liability.........................................................107
13.10 Severability.....................................................................................108
13.11 Entire Agreement.................................................................................108
13.12 Agreement Controls...............................................................................108
13.13 Usury Savings Clause.............................................................................108
13.14 Payments.........................................................................................109
13.15 Fees.............................................................................................109
13.16 Confidentiality..................................................................................110
iv
13.17 GOVERNING LAW; WAIVER OF JURY TRIAL..............................................................110
EXHIBIT A Applicable Commitment Percentages..........................................................A-1
EXHIBIT B Form of Assignment and Acceptance..........................................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative.........................C-1
EXHIBIT D Form of Borrowing Notice...................................................................D-1
EXHIBIT E Form of Interest Rate Selection Notice.....................................................E-1
EXHIBIT F Form of Revolving Note.....................................................................F-1
EXHIBIT G Form of Opinion of Borrower's Counsel......................................................G-1
EXHIBIT H Compliance Certificate.....................................................................H-1
EXHIBIT I Form of Facility Guaranty..................................................................I-1
EXHIBIT J-1 Form of General Security Agreement.......................................................J-1-1
EXHIBIT J-2 Form of Priority Security Agreement......................................................J-2-1
EXHIBIT K Form of Pledge Agreement (Borrower)........................................................K-1
EXHIBIT L Form of Borrowing Base Certificate.........................................................L-1
EXHIBIT M-1 Form of General Deed of Trust............................................................M-1-1
EXHIBIT M-2 Form of General Mortgage.................................................................M-2-1
EXHIBIT M-3 Form of Priority Deed of Trust...........................................................M-3-1
EXHIBIT M-4 Form of Priority Mortgage................................................................M-4-1
Schedule 1.1 Disposition of Assets..................................................................S-1
Schedule 1.2 Material Subsidiaries..................................................................S-2
Schedule 5.3 Information Regarding Collateral ......................................................S-3
Schedule 5.4 Real Property Subject to Mortgages ....................................................S-4
Schedule 8.4 Subsidiaries and Investments in Other Persons .........................................S-5
Schedule 8.6 Indebtedness ..........................................................................S-6
Schedule 8.7 Liens..................................................................................S-7
Schedule 8.8 Tax Matters ...........................................................................S-8
Schedule 8.10 Litigation ............................................................................S-9
Schedule 8.16 Employee Benefit Plan Events .........................................................S-10
Schedule 8.18 Environmental Issues .................................................................S-11
Schedule 8.19 Employment Matters ...................................................................S-12
Schedule 9.5 Insurance.............................................................................S-13
Schedule 10.10 Transactions with Affiliates .........................................................S-14
Schedule 10.14 Sale and Leaseback Transactions ......................................................S-15
v
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 28, 2000 (the "Agreement"),
is made by and among CONE XXXXX CORPORATION, a North Carolina corporation having
its principal place of business in Greensboro, North Carolina (the "Borrower"),
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, in its capacity as a Lender ("Bank of
America"), and each other financial institution executing and delivering a
signature page hereto and each other financial institution which may hereafter
execute and deliver an instrument of assignment with respect to this Agreement
pursuant to Section 13.1 (hereinafter such financial institutions may be
referred to individually as a "Lender" or collectively as the "Lenders"), and
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, in its capacity as agent for the Lenders
(in such capacity, and together with any successor agent appointed in accordance
with the terms of Section 12.7, the "Agent" or "Revolving Credit Agent");
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower a revolving credit facility of up to $80,000,000, the proceeds of
which are to be used for general corporate purposes and which shall include a
letter of credit facility of up to $10,000,000 for the issuance of standby and
commercial letters of credit; and
WHEREAS, the Lenders are willing to make such revolving credit and
letter of credit facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
ARTICLE I
Definitions and Terms
---------------------
1.1 Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Accounts" has the meaning given to such term in the Security
Agreement.
"Acquisition" means the acquisition of a controlling equity
interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or assets of another Person which constitute all or
substantially all of the assets of such Person or of a line or lines of
business conducted by such Person.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock (or
in the case of a Person which is not a corporation, 10% or more of the
equity interest) of the Borrower; or 10% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
"Applicable Commitment Fee" means .50% per annum.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction the numerator of which shall be such Lender's
Revolving Credit Commitment and the denominator of which shall be the
Total Revolving Credit Commitment, which Applicable Commitment
Percentage for each Lender as of the Closing Date is as set forth in
Exhibit A; provided that the Applicable Commitment Percentage of each
Lender shall be increased or decreased to reflect any assignments to or
by such Lender effected in accordance with Section 13.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
2
"Applicable Margin" means that percent per annum set forth
below for the Base Rate and the Eurodollar Rate, respectively:
Applicable Margin
-----------------------------------------------------------
Base Rate Eurodollar Rate
------------------------ -------------------------
1.75% 4.25%
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Approved Option Plan" means the Cone Xxxxx Amended and
Restated 1992 Stock Option Plan, as amended, the Cone Xxxxx 1983 ESOP,
as amended, the Cone Xxxxx Corporation 1994 Stock Option Plan For
Non-Employee Directors, as amended, the Shareholder Rights Plan dated
October 14, 1999, and any other stock incentive plan, stock option plan
or similar stock rights plan approved by the Board of Directors of the
Borrower in the ordinary course of business.
"Asset Disposition" means any disposition, whether by sale,
lease, assignment or other transfer of (i) any of the assets of the
Borrower or its Subsidiaries, and (ii) any of the capital stock, or
securities or investments exchangeable, exercisable or convertible for
or into, or otherwise entitling the holder to receive any of the
capital stock, of any Subsidiary (other than a disposition to the
Borrower or a Guarantor).
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 13.1.
"Authorized Representative" means any of the President or any
Vice President or the Treasurer or Controller of the Borrower or, with
respect to financial matters, the chief financial officer of the
Borrower, or any other Person expressly designated by the Board of
Directors of the Borrower (or the appropriate committee thereof) as an
Authorized Representative of the Borrower, as set forth from time to
time in a certificate in the form of Exhibit C.
"Bank of America" means Bank of America, N.A. and its
successors and permitted assigns.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base
3
Rate due to a change in the Prime Rate or the Federal Funds Rate shall
be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan made to
satisfy Reimbursement Obligations arising from a drawing under a Letter
of Credit.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Bond Trustee" means The Bank of New York, as successor to
Wachovia Bank, N.A. (formerly known as Wachovia Bank of North Carolina,
N.A.), as Trustee for the benefit of the holders of the Securities (as
defined in the Senior Indenture) under the Senior Indenture, and any
successor acting in such capacity.
"Borrower's Account" means demand deposit account number
0000000000 or any successor account with the Agent, which may be
maintained at one or more offices of the Agent or an agent of the
Agent.
"Borrowing Base" means, as of any date of determination
thereof, an amount equal to the sum of:
(i) the Eligible Receivables Amount multiplied
by 45%; plus
(ii) the Eligible Inventory Amount multiplied by
60%; plus
(iii) the Eligible Fixed Asset Amount multiplied
by 60%; plus
(iv) the Overadvance Basket if so included by the
Borrower in its determination of the Borrowing Base as set
forth in any Borrowing Base Certificate delivered to the Agent
and the Lenders pursuant to Section 9.1(g). In the event the
most recent Borrowing Base Certificate delivered to the Agent
and the Lenders pursuant to Section 9.1(g) does not include
the Overadvance Basket, and (A) the Borrower has requested an
Advance in an amount such that, immediately after giving
effect to such Advance, the Senior Debt Outstandings exceed
the Borrowing Base as so certified or (B) for any other reason
Senior Debt Outstandings exceed the Borrowing Base as so
certified, the Borrowing Base shall, ipso facto, be deemed to
include (1) such amount of the Overadvance Basket so that,
giving effect thereto, Senior Debt Outstandings do not exceed
the Borrowing Base as increased by such amount of the
Overadvance Basket or otherwise (2) the entire amount of the
Overadvance Basket and the terms of Sections 2.1(a) and (b)
shall then be applicable.
4
"Borrowing Base Certificate" means a certificate of the chief
financial officer, chief executive officer, Treasurer or Controller of
the Borrower setting forth the calculation of the Borrowing Base in the
form of Exhibit L.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility in the form of Exhibit D.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed
and, (ii) with respect to the selection, funding, interest rate,
payment, and Interest Period of any Eurodollar Rate Loan, any day which
is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of
business contemplated by this Agreement in London, England, New York,
New York and Charlotte, North Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to Section 9.1(a) or (b), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term of such Capital Lease applying a
discount rate equal to the interest rate provided in such lease (or in
the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in Section 9.1(a)),
all the foregoing in accordance with GAAP applied on a Consistent
Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement Nos. 13 and 98 of the Financial Accounting
Standards Board and any successor thereof.
"Capital Market Transaction" means the issuance or sale in a
registered public offering, Rule 144A/Regulation S transaction or
private placement of capital stock (including equity-linked
securities), other than the issuance of capital stock in connection
with the exercise of stock options existing as of the Closing Date or
hereafter granted in accordance with an Approved Option Plan.
5
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) either (A) becomes
the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act ), directly or indirectly, of Voting Securities
of the Borrower (or securities convertible into or
exchangeable for such Voting Securities) representing 25% or
more of the combined voting power of all Voting Securities of
the Borrower (on a fully diluted basis) or (B) otherwise has
the ability, directly or indirectly, to elect a majority of
the board of directors of the Borrower;
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the
Borrower shall cease for any reason (other than the death,
disability or retirement of an officer of the Borrower that is
serving as a director at such time so long as another officer
of the Borrower replaces such Person as a director) to
constitute a majority of the board of directors of the
Borrower; or
(iii) any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition
of the power to exercise, directly or indirectly, a
controlling influence on the management or policies of the
Borrower.
"CIPSA" means Compania Industrial xx Xxxxxx, X.X.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 7.1 have been satisfied.
"Closing Date Quarter" has the meaning given to such term in
Section 10.1(a).
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all General Collateral and
all Priority Collateral.
"Collateral Agency Agreements" means, collectively, the
General Collateral Agency Agreement and the Priority Collateral Agency
Agreement, as amended, supplemented or restated from time to time.
"Collateral Agents" means, collectively, the Priority
Collateral Agent, the General Collateral Agent and the Agent for the
Lenders and itself with respect to the Lien on the Senior Lease
Facility.
6
"Compliance Certificate" means a certificate of an Authorized
Representative of the Borrower demonstrating compliance with the
covenants contained in Sections 10.1, 10.3 and 10.7(g), substantially
in the form of Exhibit H.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to as of
the Closing Date in Section 8.6(a).
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any period ending on the date of computation
thereof, the sum of, without duplication, (i) Consolidated Net Income,
(ii) Consolidated Interest Expense, (iii) taxes on income, (iv)
amortization, (v) depreciation, (vi) non-cash charges otherwise
deducted in calculating Consolidated Net Income resulting from FASB No.
88 Adjustments, FASB No. 106 Adjustments, FASB No. 112 Adjustments or
FASB No. 121 Adjustments and (vii) Non-cash Restructuring Charges, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis; provided, however, in the event that any Non-Cash
Restructuring Charges accrued in a prior period are paid in cash in any
subsequent period, the amount of such cash payment shall be subtracted
from Consolidated EBITDA for such subsequent period.
"Consolidated Indebtedness" means all Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries, all determined on a
consolidated basis.
"Consolidated Interest Coverage Ratio" means for any
Four-Quarter Period ending on the date of computation thereof, the
ratio of (i) Consolidated EBITDA for such Four-Quarter Period, to (ii)
Consolidated Interest Expense for such Four-Quarter Period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Rate Hedging Obligations)
payable in connection with the incurrence of Indebtedness to the extent
included in gross interest expense, (iii) the portion of any payments
made in connection with Capital Leases allocable to interest expense,
and (iv) the net cash financing costs incurred in connection with any
Securitization Transaction, all determined on a consolidated basis in
accordance with GAAP applied on a Consistent Basis.
"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness
(determined as at such date) to (ii) Consolidated EBITDA (for the
Four-Quarter Period ending on (or most recently ended prior to) such
date).
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries other than Xxxxxx
7
Cone to the extent it constitutes a Subsidiary (including payments
received by the Borrower and its Subsidiaries of (i) interest income,
and (ii) dividends and distributions made in the ordinary course of
their businesses by Persons (including Parras Cone) in which investment
is permitted pursuant to this Agreement and not related to an
extraordinary event), less all operating and non-operating expenses of
the Borrower and its Subsidiaries including taxes on income, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis; but excluding (for all purposes other than compliance
with Section 10.1(a) hereof as income): (a) net gains or losses on the
sale, conversion or other disposition of capital assets, (b) net gains
or losses on the acquisition, retirement, sale or other disposition of
capital stock and other securities of the Borrower or its Subsidiaries,
(c) net gains on the collection of proceeds of life insurance policies,
(d) any write-up of any asset, (e) any net gain or loss recorded as a
result of FASB 133 Adjustments, and (f) any other net gain or credit of
an extraordinary nature as determined in accordance with GAAP applied
on a Consistent Basis.
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, the sum of the following in respect
of the Borrower and its Subsidiaries (determined on a consolidated
basis and excluding any upward adjustment after the Closing Date due to
revaluation of assets, including without limitation any FASB 133
Adjustment): (i) the amount of issued and outstanding share capital,
plus (ii) the amount of additional paid-in capital and retained
earnings (or, in the case of a deficit, minus the amount of such
deficit), plus (iii) the amount of any foreign currency translation
adjustment (if positive, or, if negative, minus the amount of such
translation adjustment), minus (iv) the amount of any treasury stock,
minus (v) (without duplication of deductions in respect of items
already deducted in arriving at surplus and retained earnings) all
reserves (other than contingency reserves not allocated to any
particular purpose), including without limitation reserves for
depreciation, depletion, amortization, obsolescence, deferred income
taxes, insurance and inventory valuation, all as determined on a
consolidated basis in accordance with GAAP applied on a Consistent
Basis.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness,
lease, dividend, guaranty, letter of credit or other obligation (each a
"primary obligation") of another Person (the "primary obligor"),
whether or not contingent, (i) to purchase, repurchase or otherwise
acquire any such primary obligation or any property constituting direct
or indirect security therefor, or (ii) to advance or provide funds (a)
for the payment or discharge of any such primary obligation, or (b) to
maintain working capital or equity capital of the primary obligor in
respect of any such primary obligation or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or
financial condition of such primary obligor, or (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary
obligor thereof to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss or failure or inability to perform in respect
thereof. The amount of any Contingent Obligation, to the extent not
expressly limited, shall be deemed to be an amount equal to the stated
or determinable amount of
8
the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof.
"Continue," "Continuation," and "Continued" shall refer to the
continuation pursuant to Section 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Controlled Accounts" means all depository accounts of the
Borrower and its Subsidiaries, other than the Excluded Deposit
Accounts, each of which shall be maintained with a Lender in accordance
with Section 9.21.
"Convert," "Conversion," and "Converted" shall refer to a
conversion pursuant to Section 4.2 of one Type of Loan into another
Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding property
described in clause (i) and the unpaid principal amount of any debt
instrument) given as consideration, (iii) the amount (determined by
using the face amount or the amount payable at maturity, whichever is
greater) of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower shall be valued (I) in the case
of capital stock that is then listed on a national securities exchange
or a national market system, the average of the last reported bid and
ask quotations or the last prices reported thereon, and (II) with
respect to any other shares of capital stock, as determined by a
committee composed of the disinterested members of the Board of
Directors of the Borrower and, if requested by the Agent, determined to
be a reasonable valuation by the independent public accountants
referred to in Section 9.1(a), (B) the capital stock of any Subsidiary
shall be valued as determined by a committee composed of the
disinterested members of the Board of Directors of such Subsidiary and,
if requested by the Agent, determined to be a reasonable valuation by
the independent public accountants referred to in Section 9.1(a), and
(C) with respect to any Acquisition accomplished pursuant to the
exercise of options or warrants or the conversion of securities, the
Cost of Acquisition shall include both the
9
cost of acquiring such option, warrant or convertible security as well
as the cost of exercise or conversion.
"Credit Parties" means, collectively, the Borrower, each
Guarantor and each other Person providing Collateral pursuant to any
Security Document from time to time (which Credit Parties as of the
Closing Date are listed on Schedule 1.2).
"Debenture Holders" means, at any time, collectively each of
the holders of the Senior Debentures then outstanding.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Reimbursement Obligations, fees, and other amounts payable in respect
of Obligations or (except as otherwise expressly provided therein) the
obligations of any other Credit Party under any of the other Loan
Documents, a rate of interest per annum which shall be two percent (2%)
above the Base Rate and (iii) in any case, the maximum rate permitted
by applicable law, if lower.
"Designated Collateral Subagent" means Bank of America, N.A.,
not individually but solely in its capacity as designated collateral
subagent on behalf of the General Secured Parties hereunder with
respect to the General Collateral, pursuant to the terms of the General
Collateral Agency Agreement, and its agents, successors and permitted
assigns.
"Direct Foreign Subsidiary" means a Subsidiary other than a
Domestic Subsidiary a majority of whose Voting Securities, or a
majority of whose Subsidiary Securities, are owned by the Borrower or a
Domestic Subsidiary.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 13.1, the Borrower,
such approvals not to be unreasonably withheld or delayed and such
approval to be deemed given by the Borrower (in the absence of notice
to the contrary, effective upon receipt) within two Business Days after
notice of such proposed assignment has
10
been provided by the assigning Lender to the Borrower; provided,
however, that neither the Borrower nor an affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Eligible Fixed Assets" means the land and completed
improvements thereon constituting real property and fixtures and all
fully operable machinery and equipment of the Borrower and its Domestic
Subsidiaries constituting fixed operating assets and associated repair
parts, in each case in which (i) as to such as constitute Priority
Collateral, the Priority Collateral Agent for the benefit of the
Priority Secured Parties shall have a Priority Lien pursuant to any
Priority Mortgage, and (ii) the General Collateral Agent for the
benefit of the General Secured Parties shall have a General Lien
pursuant to any General Mortgage or other General Security Instrument.
"Eligible Fixed Assets Amount" means the net book value of
Eligible Fixed Assets, all as determined in accordance with GAAP
applied on a Consistent Basis and reflected on the financial statements
of the Borrower most recently furnished to the Lenders pursuant to
Section 9.1 hereof; for purposes of calculating net book value of
Eligible Fixed Assets, the Borrowers shall not adopt any method or
schedule of depreciation providing for depreciation of such assets less
rapidly than the depreciation methods and schedules in effect as of the
Closing Date.
"Eligible Inventory" means the Inventory of the Borrower and
its Domestic Subsidiaries which consists of the raw material, yarn and
finished goods inventory (including greige goods) located in the United
States of America and in which (i) the Priority Collateral Agent for
the benefit of the Priority Secured Parties shall have a Priority Lien
pursuant to the Priority Security Agreement and (ii) the General
Collateral Agent for the benefit of the General Secured Parties shall
have a General Lien pursuant to the General Security Agreement.
"Eligible Inventory Amount" means the net book value of
Eligible Inventory, all as determined in accordance with GAAP applied
on a Consistent Basis and reflected on the financial statements of the
Borrower most recently furnished to the Lenders pursuant to Section 9.1
hereof.
"Eligible Receivables" means, as at any date of determination,
the sum of (i) the aggregate of all Accounts of the Borrower and its
Domestic Subsidiaries (other than Accounts subject to a Securitization
Transaction) arising from the sale of Inventory or services by the
Borrower or its Domestic Subsidiaries and in which (i) the Priority
Collateral Agent for the benefit of the Priority Secured Parties shall
have a Priority Lien pursuant to the Priority Security Agreement and
(ii) the General Collateral Agent for the benefit of the General
Secured Parties shall have a General Lien pursuant to the General
Security Agreement and (iii) the Overcollateralization Amount.
"Eligible Receivables Amount" means the net book value of
Eligible Receivables, all as determined in accordance with GAAP applied
on a Consistent Basis and reflected on the financial statements of the
Borrower most recently furnished to the Lenders pursuant to Section 9.1
hereof.
11
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(i) Government Securities;
(ii) obligations of any corporation organized under the laws
of any state of the United States of America or under the laws of any
other nation, payable in the United States of America, expressed to
mature not later than 92 days following the date of issuance thereof
and rated in an investment grade rating category by S&P and Xxxxx'x;
(iii) interest bearing demand or time deposits issued by any
Lender; and
(iv) Repurchase Agreements.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (a) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (b) has at any time been maintained for the employees of
the Borrower, any current or former ERISA Affiliate, or any Subsidiary
and (ii) any plan, arrangement, understanding or scheme maintained by
the Borrower or any Subsidiary that provides retirement, deferred
compensation, employee or retiree medical or life insurance, severance
benefits or any other benefit covering any employee or former employee
and which is administered under any Foreign Benefit Law or regulated by
any Governmental Authority other than the United States of America.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate," as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
12
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
Rate ------------------------------------- Margin
1- Reserve Requirement
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
"Event of Default" means any of the occurrences set forth as
such in Section 11.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Excluded Deposit Accounts" means (i) deposit account no.
613237765 held at Chase Manhattan Bank with aggregate deposits not in
excess of $2,000,000, (ii) deposit account no. 00000000 held at
Citibank, N.A., with aggregate deposits not in excess of $100,000,
(iii) Comercializadora accounts nos. 00000000 and 270296009 held with
Citibank, N.A., with aggregate deposits not in excess of $500,000, (iv)
cotton margin accounts with aggregate deposits not in excess of
$3,000,000 and (v) all de minimis depository accounts with aggregate
deposits not in excess of $200,000.
"Existing Credit Agreement" means that certain Credit
Agreement dated as of August 7, 1997 by and among the Borrower, Xxxxxx
Guaranty Trust Company of New York, as agent, and the lenders party
thereto, as amended.
"Facility Guaranty" means each Guaranty Agreement between one
or more Guarantors and the Agent for the benefit of the Agent and the
Lenders, Prudential, the Senior Lease Creditor, Xxxxxx, the General
Collateral Agent, the Designated Collateral Subagent and the Priority
Collateral Agent delivered as of the Closing Date and otherwise
pursuant to Section 9.20, as the same may be amended, supplemented, or
restated from time to time.
"Facility Termination Date" means such date as all of the
following shall have occurred: (i) the Borrower shall have permanently
terminated the Revolving Credit Facility by payment in full of all
Revolving Credit Outstandings and Letter of Credit Outstandings,
together with all accrued and unpaid interest thereon, except for the
undrawn portion of Letters of Credit as have been fully cash
collateralized in a manner consistent with the terms of Section
11.1(B), (ii) Revolving Credit Commitments and Letter of Credit
Commitments shall have terminated or expired and (iii) the Borrower
shall have fully, finally and irrevocably paid and satisfied in full
all Obligations (other than the Xxxxxx Swap Obligations and Obligations
consisting of continuing indemnities and other Contingent Obligations
of the Borrower or any Guarantor that may be owing to the Lenders
pursuant to the Loan Documents and expressly survive termination of
this Agreement).
13
"FASB No. 88 Adjustments" means adjustments charged to income
(or loss) and a corresponding liability resulting from "settlements and
curtailments of pension plans" (as defined in the Statement of
Financial Accounting Standards No. 88) and for related termination
benefits.
"FASB No. 106 Adjustments" means adjustments to income (or
loss) less actual cash payments resulting from "retirement benefits
other than pensions" (as defined in the Statement of Financial
Accounting Standards No. 106).
"FASB No. 112 Adjustments" means adjustments to income (or
loss) less actual cash payments resulting from "post-employment
benefits" (as defined in the Statement of Financial Accounting
Standards No. 112).
"FASB No. 121 Adjustments" means adjustments charged to income
(or loss) resulting from impairment of long-lived assets (as defined in
the Statement of Financial Accounting Standards No. 121).
"FASB 133 Adjustments" means entries on or adjustments to any
balance sheet or statement of income in respect of derivatives or
hedging instruments as required or permitted by Statement of Financial
Accounting Standards No. 133 other than adjustments relating to
transactions in cotton derivatives in the ordinary course of business.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (i) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(ii) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Quarter" means each of the three month fiscal periods
of the Borrower and its Subsidiaries ending on January 2, 2000, April
2, 2000, July 2, 2000, October 1, 2000 and December 31, 2000.
"Fiscal Year" means, with respect to fiscal year 1999, the
fiscal period of the Borrower and its Subsidiaries ending on January 2,
2000 and, with respect to fiscal year 2000, the fiscal period ending
December 31, 2000.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory,
14
protectorate or other political subdivision thereof regulating,
relating to, or imposing liability or standards of conduct concerning,
any Employee Benefit Plan.
"Four-Quarter Period" means a period of four full consecutive
Fiscal Quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"Fully Satisfied" means, with respect to (i) the Senior
Revolving Credit Obligations, the Facility Termination Date shall have
occurred, (ii) the Senior Note Obligations, the same shall have been
paid in full in cash, (iii) the Senior Lease Obligations, the same
shall have been paid in full in cash, (iv) the Senior Debenture
Obligations, the same shall have been paid in full in cash and (v) the
Xxxxxx Swap Obligations, the same, if any, shall have been paid in full
in cash and the Xxxxxx Swap Agreement shall have terminated.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"General Collateral" means the real and personal property,
fixtures and assets of the Borrower and its Material Subsidiaries
whether now existing or hereafter arising, created or acquired upon
which a General Lien has been granted to the General Collateral Agent
for the benefit of the General Secured Parties pursuant to the General
Security Instruments.
"General Collateral Agency Agreement" means that certain
Collateral Agency Agreement dated as of the date hereof among the
General Secured Parties and the General Collateral Agent, as amended,
supplemented or restated from time to time.
"General Collateral Agent" means Wilmington Trust Company, not
individually but solely in its capacity as collateral agent on behalf
of the General Secured Parties hereunder with respect to the General
Collateral, pursuant to the terms of the General Collateral Agency
Agreement, and the Designated Collateral Subagent and their agents,
successors and permitted assigns.
"General Lien" means, with respect to any General Collateral,
a valid and enforceable Lien thereon in favor of the General Collateral
Agent for the benefit of the General Secured Parties conferred under
the General Security Instruments which is fully perfected and ranking
of higher priority than any other Lien on such property other than a
Priority Lien and Permitted Liens.
"General Mortgages" means, collectively, all mortgages, deeds
of trust and deeds to secure debt substantially in the form of Exhibit
M-1 or Exhibit M-2 granting a General Lien by the Borrower or a
Guarantor to the General Collateral Agent (or a trustee for the benefit
of the General Collateral Agent) for the benefit of the General Secured
Parties in
15
General Collateral constituting real property and fixtures as
collateral security for the General Senior Obligations, and the
Guarantors' Obligations with respect thereto, as such documents may be
amended, supplemented or restated from time to time.
"General Secured Parties" means the Lenders, the Revolving
Credit Agent, Prudential, Atlantic Financial Group, Ltd. and SunTrust
Bank, Xxxxxx and the Bond Trustee for the benefit of the Debenture
Holders.
"General Security Agreement" means that certain General
Security Agreement dated as of the date hereof, and each additional
General Security Agreement entered into after the date hereof by any
Subsidiary in accordance with the terms of any Senior Credit Document,
granting a General Lien to the General Collateral Agent for the benefit
of the General Secured Parties pursuant to the General Collateral
Agency Agreement, as collateral security for the General Senior
Obligations, and the Guarantors' Obligations with respect thereto, as
amended, supplemented or restated from time to time.
"General Security Instruments" means (i) the General Security
Agreement, (ii) the General Mortgages, (iii) the Pledge Agreement and
(iv) all other agreements, instruments and other documents, whether now
existing or hereafter in effect, pursuant to which the Borrower or any
Material Subsidiary shall grant or convey to the General Collateral
Agent for the benefit of the General Secured Parties a General Lien in
property as security for payment of all or any portion of the General
Senior Obligations, and the Guarantors' Obligations with respect
thereto, all as amended, supplemented or restated from time to time.
"General Senior Obligations" mean all Senior Debt Obligations
other than Priority Senior Obligations, comprised of a pro rata portion
of the Senior Revolving Credit Obligations, the Senior Note
Obligations, the Senior Lease Obligations, Xxxxxx Swap Obligations and
Senior Debenture Obligations outstanding at any time.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America
or any agency thereof.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, at any date, the Material Subsidiaries who
are parties to a Facility Guaranty at such date which as of the Closing
Date includes the Material Subsidiaries identified on Schedule 1.2.
16
"Guarantors' Obligations" has the meaning given to such term
in the Facility Guaranty.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means as to any Person, without duplication,
(i) all Indebtedness for Money Borrowed of such Person, (ii) all Rate
Hedging Obligations of such Person, (iii) all indebtedness secured by
any Lien on any property or asset owned or held by such Person
regardless or whether the indebtedness secured thereby shall have been
assumed by such Person or is non-recourse to the credit of such Person,
and (iv) all Contingent Obligations of such Person.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, all Synthetic Lease Indebtedness, all Securitization
Outstandings, the deferred purchase price of any property or services,
the aggregate face amount of all surety bonds, letters of credit, and
bankers' acceptances, and (without duplication) all payment and
reimbursement obligations in respect thereof whether or not matured,
evidenced by a promissory note, bond, debenture or similar written
obligation for the payment of money (including reimbursement agreements
and conditional sales or similar title retention agreements), other
than trade payables, documentary letters of credit and accrued expenses
incurred in the ordinary course of business.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, provided, however; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Intercreditor Agreements" means, collectively, the Senior
Debt Intercreditor Agreement, the Leased Facility Intercreditor
Agreement and the Securitization Intercreditor Agreement.
17
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two or three months thereafter as notified to the Agent by
the Authorized Representative in accordance with the terms hereof;
provided that,
(i) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day); and
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit E.
"Inventory" has the meaning given to such term in the Security
Agreement.
"Issuing Bank" means Bank of America as issuer of Letters of
Credit under Article III and its successors and permitted assigns.
"Leased Facility Intercreditor Agreement" means that certain
Intercreditor Agreement dated as of the date hereof between the Agent
and the Senior Lease Creditor relating to relative rights and remedies
with respect to the Senior Leased Facility, as from time to time
amended, supplemented or replaced.
"Letter of Credit" means each standby or commercial letter of
credit issued by the Issuing Bank pursuant to Article III hereof for
the account of the Borrower in favor of a Person advancing credit or
securing an obligation on behalf of the Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters
18
of Credit in an aggregate stated amount at any time outstanding not
exceeding the Total Letter of Credit Commitment minus outstanding
Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any of the Revolving Loans made under
the Revolving Credit Facility.
"Loan Documents" means this Agreement, the Notes, the Security
Documents, the Intercreditor Agreements, the Facility Guaranties, the
Applications and Agreements for Letter of Credit, and all other
instruments and documents heretofore or hereafter executed or delivered
to or in favor of any Lender (including the Issuing Bank) or the Agent
in connection with the Loans made and transactions contemplated under
this Agreement, as amended, supplemented or restated from time to time.
"Master Lease" means that certain Master Lease Agreement dated
as of October 24, 1994 between the Borrower, as Lessee, and TCB Realty
II Corporation, as Lessor ("TCB"), relating to the North Pointe Center
Development, as amended, supplemented or restated from time to time and
as assigned by TCB to Atlantic Financial Group, Ltd. pursuant to that
certain Assignment Agreement dated as of April 15, 1999 among Citicorp
Leasing, Inc. and SunTrust Bank.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as
a whole, (ii) the ability of any Credit Party to pay or perform its
respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Agent or any Lender under any Loan Document or the validity, legality
or enforceability thereof.
"Material Direct Foreign Subsidiary" means any Direct Foreign
Subsidiary which would be considered a Material Subsidiary under
clauses (i) or (ii) of the definition "Material Subsidiary" if it were
a Domestic Subsidiary.
19
"Material Real Property" means (i) each Mortgaged Property set
forth on Schedule 5.4 and (ii) each other parcel of real property owned
from time to time by the Borrower or any Domestic Subsidiary having a
fair market value at any time of determination of at least $1,000,000.
"Material Real Property Support Documents" means for each
Material Real Property (other than the Comfort Sleep property) and,
with respect to Mortgaged Property subject to Sections 5.4(a)(ii)(B)
and 5.4(b)(ii)(B), only such of the following as are required by the
applicable Governmental Authority), (i) the Title Policy pertaining
thereto, (ii) such surveys, flood hazard certifications, appraisals,
and environmental assessments thereof as the Agent may require prepared
by recognized experts in their respective fields selected by the
Borrower and reasonably satisfactory to the Agent, (iii) as to Material
Real Property located in a flood hazard area, such flood hazard
insurance as the Agent may require, (iv) as to leasehold interests,
such lessor estoppel, waiver and consent certificates, (v) with respect
to facilities leased or subleased to third parties (other than
properties leased for less than $300,000 per Fiscal Year), such
lessees' estoppel, waiver and consent certificates and subordination,
nondisturbance and attornment agreements, (vi) such owner's or lessee's
affidavits as the Agent may require, (vii) such opinions of local
counsel with respect to the Mortgages or leasehold mortgages, as
applicable, as the Agent may require, and (viii) such other
documentation as the Agent may reasonably require, in each case as
shall be in form and substance reasonably acceptable to the Agent.
"Material Subsidiary" means any direct or indirect Domestic
Subsidiary of the Borrower which (i) has total assets equal to or
greater than 2% of consolidated total assets of the Borrower and its
Domestic Subsidiaries (calculated as of the most recent fiscal period
with respect to which the Agent shall have received financial
statements required to be delivered pursuant to Sections 9.1(a) or (b)
(or if prior to delivery of any financial statements pursuant to such
Sections, then calculated with respect to the Fiscal Year end financial
statements referenced in Section 8.6) (the "Required Financial
Information")) or (ii) has revenue equal to or greater than 2% of
consolidated total revenue of the Borrower and its Domestic
Subsidiaries (calculated for the most recent period for which the Agent
has received the Required Financial Information); provided, however,
that notwithstanding the foregoing, the term "Material Subsidiary"
shall mean each of those Domestic Subsidiaries that together with the
Borrower and each other Material Subsidiary have assets equal to not
less than 98% of consolidated total assets of the Borrower and its
Domestic Subsidiaries (calculated as described above) and revenue of
not less than 98% of consolidated total revenue of the Borrower and its
Domestic Subsidiaries (calculated as described above); provided further
that if more than one combination of Domestic Subsidiaries satisfies
both such thresholds, then those Domestic Subsidiaries so determined to
be "Material Subsidiaries" shall be specified by the Borrower, and
which include as of the Closing Date the Subsidiaries identified on
Schedule 1.2.
"Material Supply Agreement" means, collectively, (i) the
exclusive Supply Agreement dated as of March 30, 1992 between the
Borrower and Levi Xxxxxxx & Co., as
20
amended or replaced from time to time, and (ii) any other contract or
agreement with any retail or wholesale customer of the Borrower or any
Subsidiary the cancellation, termination, or non-renewal of which would
reasonably be likely to have a Material Adverse Effect.
"Mexican Capital Expenditures" means all Capital Expenditures
made with respect to property, plant or equipment located in Mexico
other than Parras Cone Capital Expenditures.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Xxxxxx" means Xxxxxx Guaranty Trust Company of New York, in
its capacity as party to the Xxxxxx Swap Agreement and obligee of the
Xxxxxx Swap Obligations.
"Xxxxxx Swap Agreement" means that certain ISDA Master
Agreement dated as of July 20, 1998 between the Borrower and Xxxxxx as
supplemented pursuant to that certain letter agreement dated as of July
20, 1998, as from time to time amended, supplemented or restated.
"Xxxxxx Swap Obligations" means all obligations and
liabilities of the Borrower to Xxxxxx in respect of the interest rate
hedging agreements entered into prior to, and outstanding on, the
Closing Date under the Xxxxxx Swap Agreement, including, but not
limited to, (i) the obligations of the Borrower to make periodic
payments to Xxxxxx in accordance with the terms of the Xxxxxx Swap
Agreement and (ii) the obligation of the Borrower to make a termination
payment to Xxxxxx under Section 6(e) of the Xxxxxx Swap Agreement,
provided, however, that in the event that the payments to be made by
the Borrower to Xxxxxx under (i) and (ii) above are greater than
$3,000,000, the amount of such obligations shall be deemed to be
$3,000,000 for purposes of this definition.
"Mortgaged Property" means, collectively, (i) the real
property, leasehold interests, improvements, fixtures and other items
of real and personal property related thereto and the products thereof
of the Borrower and its Domestic Subsidiaries which are subject to a
Mortgage on the Closing Date, and (ii) thereafter, any of such property
owned or acquired by the Borrower or any Domestic Subsidiary, including
any Subsidiary that is or is required to become a Guarantor after the
Closing Date pursuant to Section 9.20, which has a fair market value in
excess of $300,000 which is required to become subject to a Mortgage
hereunder and (iii) any other real property with respect to which the
Borrower or a Domestic Subsidiary has elected in its sole discretion to
make subject to a Mortgage.
"Mortgages" means, collectively, each of the Priority
Mortgages, the General Mortgages and the Senior Lease Facility
Mortgage.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making,
21
or is accruing an obligation to make, contributions or has made, or
been obligated to make, contributions within the preceding six (6)
Fiscal Years.
"Non-cash Restructuring Charges" means those expenses and
charges against earnings incurred in connection with the Borrower's
comprehensive corporate downsizing and reorganization program and which
do not result in any cash payment by the Borrower or any Subsidiary,
all as determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Notes" means the Revolving Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, and
(iii) the payment and performance of all other obligations, liabilities
and Indebtedness of the Borrower to the Lenders (including the Issuing
Bank), the Agent or BAS hereunder, under any one or more of the other
Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings and Revolving Credit Outstandings on such date.
"Overadvance Basket" means an amount of up to $5,000,000 which
may be utilized by the Borrower in the determination of the Borrowing
Base in the manner set forth in the definition of "Borrowing Base."
"Overcollateralization Amount" means, at any date of
determination, the excess of the aggregate Outstanding Balance (as
defined in the Receivables Purchase Agreement)
22
of all Transferred Receivables (as defined in the Receivables Purchase
Agreement) over the Capital Investment (as defined in the Receivables
Purchase Agreement) with respect to such Transferred Receivables.
"Parras Cone" means Parras Cone de Mexico, S. A., a joint
venture of the Borrower and CIPSA.
"Parras Cone Acquisition" means the purchase of (i)
substantially all of the assets of, or (ii) a controlling equity
interest in, Parras Cone, in each case, pursuant to a transaction
financed exclusively with Parras Cone Debt and investments permitted
under Section 10.7(h).
"Parras Cone Capital Expenditures" means all Capital
Expenditures made by Parras Cone financed exclusively from internally
generated revenue and/or the Parras Cone Debt.
"Parras Cone Debt" means Indebtedness (other than Advances
under the Revolving Credit Facility) incurred to finance the Parras
Cone Acquisition (which may include refinancing the existing
Indebtedness of Parras Cone), which Indebtedness is non-recourse to the
Borrower and its Subsidiaries.
"Participation" means, with respect to any Lender (other than
the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"PBGC Agreement" means (i) initially, the Memorandum of
Understanding dated January 3, 2000 between the Borrower and the PBGC
concerning certain of the Borrower's Pension Plans and (ii) from and
after the execution of definitive documentation thereafter entered into
between the Borrower on substantially the same terms as set forth in
such Memorandum of Understanding, such definitive documentation.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Permitted Asset Dispositions" means Asset Dispositions
consisting of (i) dispositions of inventory in the ordinary course of
business, (ii) dispositions of items of equipment which, in the
aggregate during any Fiscal Year, have a fair market value or
23
book value, whichever is greater, of $2,000,000 or less, (iii)
dispositions of property that is substantially worn, damaged, obsolete
or, in the judgment of the Borrower, no longer best used or useful in
its business or that of any Subsidiary which in the aggregate during
any Fiscal Year has a fair market value or book value, whichever is
greater, of $1,000,000 or less, (iv) transfers of assets necessary to
give effect to merger or consolidation transactions permitted by
Section 10.8, (v) the disposition of cash or Eligible Securities in the
ordinary course of management of the investment portfolio of the
Borrower and its Subsidiaries, (vi) securitization of accounts
receivable and related rights pursuant to the Securitization
Transaction, (vii) the sale or discount without recourse of accounts
receivable or notes receivable, or the conversion or exchange of
accounts receivable into or for notes receivable in connection with the
compromise or collection thereof, each in the ordinary course of
business, (viii) dispositions of assets with an aggregate book value or
fair market value, whichever is greater, of up to $2,000,000 during any
Fiscal Year of the Borrower or any Subsidiary the proceeds of which are
reinvested within 180 days of such disposition by the Borrower or such
Subsidiary in replacement assets of substantially the same or greater
such value and utility as the assets so disposed of (or such
replacement asset is otherwise purchased by the Borrower or such
Subsidiary within 180 days prior to such disposition), (ix)
dispositions of assets described on Schedule 1.1 hereto and (x) sale
and leaseback transactions permitted under Section 10.14.
"Permitted Liens" has the meaning given to such term in
Section 10.4.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Securities Pledge Agreement
dated as of the date hereof from the Borrower to the General Collateral
Agent for the benefit of the General Secured Parties, (ii) that certain
Pledge Agreement dated as of the date hereof from the Borrower pledging
65% of the total outstanding shares of each of its Material Direct
Foreign Subsidiaries to the General Collateral Agent for the benefit of
the General Secured Parties, (iii) any additional Securities Pledge
Agreement delivered to the General Collateral Agent pursuant to Section
5.1 and 9.20, and (iv) with respect to any Subsidiary Securities issued
by a Material Direct Foreign Subsidiary, any additional or substitute
charge, agreement, document, instrument or conveyance, in form and
substance acceptable to the General Collateral Agent, conferring under
applicable foreign law upon the General Collateral Agent for the
benefit of the General Secured Parties a General Lien upon such
Subsidiary Securities and equity interests as are owned by the Borrower
or any Domestic Subsidiary, in each case as hereafter amended,
supplemented (including by Pledge Agreement Supplement) or restated
from time to time.
"Pledge Agreement Supplement" means, with respect to each
Pledge Agreement, the Pledge Agreement Supplement in the form affixed
as an exhibit to such Pledge Agreement.
24
"Pledged Interests" means the Subsidiary Securities required
to be pledged as General Collateral pursuant to Article V or the terms
of any Pledge Agreement.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, XX0
000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services,
or such other office and address as the Agent may from time to time
designate.
"Priority Collateral" means the certain personal and real
property, assets and fixtures of the Borrower and its Material
Subsidiaries whether now existing or hereafter arising, created or
acquired, upon which a Priority Lien has been granted to the Priority
Collateral Agent for the benefit of the Priority Secured Parties
pursuant to the Priority Security Instruments.
"Priority Collateral Agency Agreement" means that certain
Collateral Agency Agreement dated as of the date hereof among the
Priority Secured Parties and the Priority Collateral Agent, as amended,
supplemented or restated from time to time.
"Priority Collateral Agent" means Bank of America not
individually but solely in its capacity as collateral agent for the
Priority Secured Parties with respect to the Priority Collateral
pursuant to the terms of the Priority Collateral Agency Agreement, and
its agents, successors and permitted assigns.
"Priority Lien" means, with respect to any Priority
Collateral, a valid and enforceable Lien thereon in favor of the
Priority Collateral Agent for the benefit of the Agent, the Lenders and
the other Priority Secured Parties conferred under the Priority
Security Instruments which is fully perfected and ranking of higher
priority than any other Lien, including any General Lien, on such
property, except for Permitted Liens.
"Priority Mortgages" means, collectively, all mortgages, deeds
of trust and deeds to secure debt substantially in the form of Exhibit
M-3 or Exhibit M-4 granting a Priority Lien by the Borrower or a
Guarantor to the Priority Collateral Agent (or a trustee for the
benefit of the Priority Collateral Agent) for the benefit of the
Priority Secured Parties in Priority Collateral constituting real
property and fixtures as collateral security for the Priority Senior
Obligations, and if applicable, the Guarantors' Obligations with
respect thereto, as such documents may be amended, supplemented or
restated from time to time.
"Priority Secured Parties" means the Lenders, the Revolving
Credit Agent, Prudential, Atlantic Financial Group, Ltd. and SunTrust
Bank.
25
"Priority Security Agreement" means that certain Priority
Security Agreement dated as of the date hereof, and each additional
Priority Security Agreement entered into after the date hereof by any
Subsidiary in accordance with the terms of any Senior Credit Document,
granting a Priority Lien to the Priority Collateral Agent for the
benefit of the Priority Secured Parties pursuant to the Priority
Collateral Agency Agreement as collateral security for the Priority
Senior Obligations, and if applicable, the Guarantors' Obligations with
respect thereto, as amended, supplemented or restated from time to
time.
"Priority Security Instruments" means (i) the Priority
Security Agreement, (ii) the Priority Mortgages and (iii) all other
agreements, instruments and other documents, whether now existing or
hereafter in effect pursuant to which the Borrower or any Material
Subsidiary shall grant or convey a Priority Lien to the Priority
Collateral Agent for the benefit of the Priority Secured Parties as
collateral security for the Priority Senior Obligations, and if
applicable, the Guarantors' Obligations with respect thereto, all as
amended, supplemented and restated from time to time.
"Priority Senior Obligations" has the meaning given to such
term in the Intercreditor Agreement.
"Prudential" means The Prudential Insurance Company of
America, in its capacity as holder of the Senior Notes.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing; provided, however, under no circumstances shall
obligations for cotton hedging in the ordinary course of business be
considered Rate Hedging Obligations.
"Receivables Purchase Agreement" means that certain
Receivables Purchase and Servicing Agreement dated September 1, 1999 by
and among Cone Receivables II LLC, as Seller, Redwood Receivables
Corporation, as Purchaser, Cone Xxxxx Corporation, as Servicer, and
General Electric Capital Corporation, as Operating Agent and Collateral
Agent, as amended by the First Amendment and Waiver to Securitization
Agreements dated as of November 16, 1999 and the Second Amendment to
Securitization Agreements dated as of the Closing Date and as amended,
supplemented or restated from time to time.
"Receivables Transfer Agreement" means that certain
Receivables Transfer Agreement dated September 1, 1999 by and among
Cone Xxxxx Corporation, the other originators party thereto and Cone
Receivables II LLC, as amended by the First Amendment and Waiver to
Securitization Agreements dated as of November 16, 1999 and the Second
Amendment to Securitization
26
Agreements dated as of the Closing Date and as amended, supplemented or
restated from time to time.
"Registrar" means, with respect to any Subsidiary Securities
required to be pledged pursuant to the terms of any Pledge Agreement,
any Person authorized or obligated to maintain records of the
registration of ownership or transfer of ownership of interests in such
Subsidiary Securities, and in the event no such Person shall have been
expressly designated by the related Subsidiary, shall mean (i) as to
any corporation or limited liability company, its Secretary (or
comparable official), and (ii) as to any partnership, its general
partner (or managing general partner if one shall have been appointed).
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 2.1(c)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial papers are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's with a term of no more than seven days.
"Required Enforcement General Secured Parties" shall have the
meaning given to such term in the Intercreditor Agreement.
"Required General Secured Parties" means, as of any date,
General Secured Parties (other than the Bond Trustee and the Debenture
Holders) holding more than fifty percent (50%) of the General Senior
Obligations (other than the Senior Debenture Obligations) outstanding
on such date.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating (i) if there
shall be fewer than three (3) Lenders, 100% of the aggregate Credit
Exposures of all Lenders on such date, and (ii) if there shall be three
(3) or more Lenders, more than 66-2/3% of the aggregate Credit
Exposures of all the Lenders on such date. For purposes of the
preceding sentence, the
27
amount of the "Credit Exposure" of each Lender shall be equal at all
times (a) other than following the occurrence and during the
continuance of an Event of Default, to its Revolving Credit Commitment,
and (b) following the occurrence and during the continuance of an Event
of Default, to the sum of (i) the amount of such Lender's Applicable
Commitment Percentage of Revolving Credit Outstandings plus (ii) the
amount of such Lender's Applicable Commitment Percentage of Letter of
Credit Outstandings; provided that, for the purpose of this definition
only, (A) if any Lender shall have failed to fund its Applicable
Commitment Percentage of any Advance, then the Revolving Credit
Commitment of such Lender shall be deemed reduced by the amount it so
failed to fund for so long as such failure shall continue and such
Lender's Credit Exposure attributable to such failure shall be deemed
held by any Lender making more than its Applicable Commitment
Percentage of such Advance to the extent it covers such failure and (B)
if any Lender shall have failed to pay to the Issuing Bank upon demand
its Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation (whether by
funding its Participation therein or otherwise), such Lender's Credit
Exposure attributable to all Letter of Credit Outstandings shall be
deemed to be held by the Issuing Bank until such Lender shall pay such
deficiency amount to the Issuing Bank together with interest thereon as
provided in Section 4.9.
"Required Priority Secured Parties" means, as of any date,
Priority Secured Parties holding more than fifty percent (50%) of the
Priority Senior Obligations outstanding on such date.
"Required Secured Parties" means, as of any date, (i) Priority
Secured Parties holding more than fifty percent (50%) of the Priority
Senior Obligations outstanding on such date and (ii) General Secured
Parties (other than the Debenture Holders) holding more than fifty
percent (50%) of the General Senior Obligations outstanding on such
date, excluding in such calculations for all purposes of determination
the Senior Debenture Obligations.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board by member banks
of the Federal Reserve System against "Eurocurrency liabilities" (as
such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (i) any
category of liabilities which includes deposits by reference to which
the Eurodollar Rate is to be determined, or (ii) any category of
extensions of credit or other assets which include Eurodollar Rate
Loans. The Eurodollar Rate shall be adjusted automatically on and as of
the effective date of any change in the Reserve Requirement.
"Restricted Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any Subsidiary Securities of its Subsidiaries
(other than those payable or distributable solely to the
28
Borrower) now or hereafter outstanding, except a dividend payable
solely in shares of a class of stock to the holders of that class; (ii)
any redemption, conversion, exchange, put, call, retirement or similar
payment, purchase or other acquisition for value, direct or indirect,
of any shares of any class of stock of Borrower or any of its
Subsidiaries (other than those payable or distributable solely to the
Borrower) now or hereafter outstanding; (iii) any payment made to
retire, or to obtain the surrender of, any outstanding warrants,
options or other rights to acquire shares of any class of stock of
Borrower or any Subsidiary Securities of its Subsidiaries now or
hereafter outstanding; and (iv) any issuance and sale of Subsidiary
Securities (other than director qualifying shares) of any Subsidiary of
the Borrower (or any option, warrant or right to acquire such stock)
other than to the Borrower; excluding in all instances however all
payments which would otherwise be considered "Restricted Payments" made
in accordance with the terms of an Approved Option Plan.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Section 2.1 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any Determination
Date, the aggregate principal amount of all Revolving Loans then
outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 11.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings and Letter of Credit Outstandings
and cancellation (or cash collateralization) of all Letters of Credit,
together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Section 2.1.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in Section 2.3(a) substantially in the form of
Exhibit F-1, with appropriate insertions as to amounts, dates and names
of Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
29
"Secured Parties" means, collectively, the Priority Secured
Parties, the General Secured Parties and the Agent and the Lenders with
respect to the Senior Leased Facility.
"Securitization Deposit Accounts" means those certain lockbox
deposit accounts nos. 3750818293 and 0000-0-00000 with Bank of America,
N.A. and the deposit account no. 613237765 with Chase Manhattan Bank,
N.A., in each case held with such financial institutions in connection
with the transactions contemplated under the Receivables Purchase
Agreement.
"Securitization Intercreditor Agreement" means the
Intercreditor Agreement of even date herewith among General Electric
Capital Corporation, the General Collateral Agent and certain other
parties and more particularly described in the definition of "Permitted
Encumbrances" in Annex X to the Receivables Purchase Agreement, as
amended, supplemented or restated from time to time.
"Securitization Outstandings" means, at any time, the Capital
Investment (as defined in the Receivables Purchase Agreement) under the
Receivables Purchase Agreement, in an aggregate amount not in excess of
$60,000,000 at any time.
"Securitization Transaction" means any transaction pursuant to
which the Borrower or any Subsidiary, through Cone Receivables II LLC,
sells, disposes of or otherwise transfers any interest, including any
security interest, in accounts receivable and related rights pursuant
to the Receivables Purchase Agreement.
"Security Agreement" means, collectively (or individually as
the context may indicate), (i) the Priority Security Agreement, (ii)
the General Security Agreement, and (iii) any additional Security
Agreement delivered to the Agent pursuant to Section 9.20, as amended,
supplemented or restated from time to time.
"Security Documents" means, collectively, the General Security
Instruments, the Priority Security Instruments and the Senior Lease
Facility Mortgage.
"Security Termination Date" means the earliest date on which
any of the following shall occur: (i) all Senior Debt Obligations are
Fully Satisfied, (ii) all Senior Revolving Credit Obligations, all
Senior Note Obligations and all Senior Lease Obligations are Fully
Satisfied, or (iii) when each of the Agent (at the direction of all the
Lenders), the holders of the Senior Notes and the Senior Lease Creditor
agree in writing to the termination of all the General Security
Instruments and the Priority Security Instruments and to the release of
all General Liens and Priority Liens granted thereto thereunder.
"Senior Credit Documents" means, collectively, each of the
Loan Documents, the Senior Debenture Documents, the Senior Lease
Documents, the Senior Note Documents, and the Xxxxxx Swap Agreement, as
amended, supplemented or restated from time to time.
30
"Senior Creditors" means, collectively, all of (i) the Agent
and the Lenders and (ii) Prudential, (iii) the Senior Lease Creditor,
(iv) Xxxxxx and (v) the Bond Trustee on behalf of and for the benefit
of the Debenture Holders.
"Senior Debenture Documents" means, collectively, the Senior
Indenture, the Senior Debentures and all documents delivered by or on
behalf of the Borrower to the Bond Trustee or the Debenture Holders in
connection therewith, as amended, supplemented or restated from time to
time.
"Senior Debenture Obligations" means, as of any date, all
obligations, liabilities and indebtedness of the Borrower with respect
to the payment of (i) all outstanding principal, together with accrued
and unpaid interest thereon, and premium thereon, if any, of the Senior
Debentures, and (ii) all fees, expenses and other payments required by
or under the Senior Debenture Documents.
"Senior Debentures" means the 8x% Debentures due March 15,
2005 issued by the Borrower pursuant to the Senior Indenture in an
aggregate original principal amount of $100,000,000, as amended,
restated or supplemented from time to time.
"Senior Debt Intercreditor Agreement" means that certain
Intercreditor Agreement dated as of the date hereof among the
Collateral Agents and the Senior Creditors, as amended, supplemented or
restated from time to time.
"Senior Debt Obligations" means, collectively, all of the
Senior Revolving Credit Obligations, the Senior Note Obligations, the
Senior Lease Obligations, the Senior Debenture Obligations and the
Xxxxxx Swap Obligations.
"Senior Debt Outstandings" means the sum of (i) the aggregate
amount of Revolving Credit Outstandings and Letter of Credit
Outstandings, plus (ii) the aggregate outstanding principal amount of
the Senior Debentures, plus (iii) the aggregate outstanding principal
amount of the Senior Notes.
"Senior Indenture" means that certain Indenture dated as of
February 14, 1995 between the Borrower and the Bond Trustee, as
amended, restated or supplemented from time to time.
"Senior Lease Creditor" means, collectively, SunTrust Bank and
Atlantic Financial Group, Ltd., as creditors of the Senior Lease
Obligations.
"Senior Lease Documents" means the Master Lease, the Loan
Agreement (up to $16,000,000) dated as of October 24, 1994 between
Atlantic Financial Group, Ltd. (as successor to TCB Realty II
Corporation), as borrower, and SunTrust Bank (as successor to Citicorp
Leasing, Inc.), as lender (the "Development Loan Agreement") and the
other Key Agreements (as defined in the Development Loan Agreement), as
amended by the Tenth Amendment to Master Lease of even date herewith
and as amended, supplemented or restated from time to time.
31
"Senior Lease Facility" means the Borrower's corporate
headquarters, including land and improvements, located at 0000 Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx and leased by the Borrower
pursuant to the Senior Lease Documents.
"Senior Lease Facility Mortgage" means the Deed of Trust and
Security Agreement dated as of the Closing Date from Atlantic Financial
Group, Ltd. in favor of the Agent for the benefit of itself and the
Lenders granting a Lien on the Senior Lease Facility, as such document
may be amended, supplemented or restated from time to time.
"Senior Lease Obligations" means, as of any date, all
obligations, liabilities and indebtedness of the Borrower with respect
to the payment of all rent, fees, expenses and other payments required
by or under the Senior Lease Documents to which it is a party.
"Senior Note Agreement" means that certain Note Agreement
dated August 13, 1992 between the Borrower and The Prudential Insurance
Company of America pursuant to which the Senior Notes were issued, as
amended by Amendment of 1992 Note Agreement, as amended, supplemented
or restated from time to time.
"Senior Note Documents" means the Senior Note Agreement, the
Senior Notes and all documents delivered by or on behalf of the
Borrower to Prudential in connection therewith, as amended,
supplemented or restated from time to time.
"Senior Note Obligations" means, as of any date, all
obligations, liabilities and indebtedness of the Borrower with respect
to the payment of (i) all outstanding principal, together with accrued
and unpaid interest and Yield Maintenance Amount (as defined in the
Senior Note Agreement) thereon, on the Senior Notes, and (ii) all fees,
expenses and other payments required by or under the Senior Note
Agreement or any other Senior Note Document to which it is a party.
"Senior Notes" means the 8.00% Senior Notes Due August 13,
2002 issued by the Borrower pursuant to the Senior Note Agreement in
the original aggregate principal amount of $75,000,000, as amended,
supplemented or restated from time to time.
"Senior Revolving Credit Obligations" means, except as set
forth below, all obligations, liabilities and indebtedness of the
Borrower with respect to the payment of (i) all outstanding principal,
together with accrued and unpaid interest thereon, on the Revolving
Notes, (ii) all Letter of Credit Outstandings and (iii) all fees,
expenses and other payments required by or under this Agreement or any
other Loan Document to which it is a party; provided, however, with
respect to all matters covered by Section 5.5 hereof and Section 1.2(b)
of the Senior Debt Intercreditor Agreement for which determination is
made at any time other than following the occurrence and during the
continuance of an Event of Default under this Agreement or any other
Loan Document, Senior Revolving Credit Obligations shall mean and be
equal to the Total Revolving Credit Commitment.
32
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(a) the fair value of its assets (both at fair valuation and
at present fair saleable value on an orderly basis) is in excess of the
total amount of its liabilities, including Contingent Obligations; and
(b) it is then able and expects to be able to pay its debts as
they mature; and
(c) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"Stated Termination Date" means August 7, 2000.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries; provided however
that neither Cone Receivables II LLC nor Parras Cone (prior to the
consummation of the Parras Cone Acquisition in compliance with the
terms hereof) shall constitute Subsidiaries for the purposes of this
Agreement.
"Subsidiary Securities" means the shares of capital stock or
the other equity interests issued by or equity participations in any
Subsidiary, whether or not constituting a "security" under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the
Borrower and any Person with respect to Indebtedness evidenced by any
or all of the Notes, on terms mutually acceptable to Borrower and such
Person and approved by the Required Lenders, which agreements create
Rate Hedging Obligations, as amended, supplemented or restated from
time to time; provided, however, that no such approval of the Lenders
shall be required to the extent such agreements are entered into
between the Borrower and any Lender or any affiliate of any Lender.
"Synthetic Lease" means a leveraged leasing arrangement under
which the lease of property is treated as an operating lease under GAAP
but is treated as a financing lease arrangement for legal and tax
purposes and in which a special purpose entity incurs Indebtedness to
acquire such property and leases such property to the Borrower.
"Synthetic Lease Indebtedness" means, with respect to a Person
that is a lessee under a Synthetic Lease, at any time an amount equal
to (i) the aggregate purchase price of any property that the lessor
under such synthetic lease acquired, through one or a series of related
transactions, and thereafter leased to such Person pursuant to such
Synthetic Lease less (ii) the aggregate amount of all payments made on
or prior to such time of fixed rent or other rent payments which
reduced such Person's obligation under such Synthetic Lease and which
are not the financial equivalent of interest. Synthetic Lease
33
Indebtedness of a Person shall also include, without duplication, the
amount of Synthetic Lease Indebtedness of others to the extent
guarantied by such Person.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation) other
than any reportable event that is the subject of the PBGC Agreement; or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC other than those actions by the
PBGC that are the subject of the PBGC Agreement; or (v) any other event
or condition which would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan other than those actions by the PBGC that
are the subject of the PBGC Agreement; or (vi) the partial or complete
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan; or (vii) the imposition of a Lien pursuant to Section 412 of the
Code or Section 302 of ERISA other than those actions by the PBGC that
are the subject of the PBGC Agreement; or (viii) any event or condition
which results in the reorganization or insolvency of a Multiemployer
Plan under Section 4241 or Section 4245 of ERISA, respectively; or (ix)
any event or condition which results in the termination of a
Multiemployer Plan under Section 4041A of ERISA or the institution by
the PBGC of proceedings to terminate a Multiemployer Plan under Section
4042 of ERISA; or (x) any event or condition with respect to any
Employee Benefit Plan which is regulated by any Foreign Benefit Law
that results in the termination of such Employee Benefit Plan or the
revocation of such Employee Benefit Plan's authority to operate under
the applicable Foreign Benefit Law.
"Title Policy" means, with respect to each Mortgaged Property
as to which Mortgage Support Documents are required hereunder, the
mortgagee title insurance policy (together with such endorsements as
the Agent may reasonably require) issued to the General Collateral
Agent in respect of such Mortgaged Property by an insurer selected by
the Borrower and reasonably acceptable to the Revolving Credit Agent,
insuring (in an amount satisfactory to the Agent) the General Lien of
the General Collateral Agent for the benefit of the General Secured
Parties on such Mortgaged Property to be duly perfected and of first
priority, subject only to such exceptions as shall be acceptable to the
Agent.
"Total Letter of Credit Commitment" means an amount not to
exceed $10,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $80,000,000, as reduced from time to time in accordance with
Sections 2.1(e) and (f).
34
"Twelve-Month Period" means a period of twelve consecutive
calendar months taken together as one accounting period.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"UCC" means the Uniform Commercial Code of the State of North
Carolina as codified from time to time in the North Carolina General
Statutes.
"U.S. Capital Expenditures" means all Capital Expenditures
other than Mexican Capital Expenditures and Parras Cone Capital
Expenditures.
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to the Borrower's or any of its
Subsidiaries' business and operations are able to perform properly
date-sensitive functions involving all dates on and after January 1,
2000.
"Year 2000 Problem" means that computer applications used by
the Borrower or any of its Subsidiaries (including those affected by
information received from its suppliers and vendors) are unable to
recognize correctly and perform properly date-sensitive functions
involving certain dates on and after January 1, 2000.
1.2 Rules of Interpretation.
-----------------------
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the North
Carolina Uniform Commercial Code shall have the meaning given therein
unless otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
35
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and VICE VERSA, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder," "hereto," "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of EJUSDEM GENERIS shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%,"
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
supplemented or restated, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, supplemented or
restated from time to time only as and to the extent permitted therein
and in the Loan Documents.
36
ARTICLE II
The Credit Facilities
---------------------
2.1 Revolving Loans.
---------------
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrower under the Revolving Credit Facility from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage up to but
not exceeding the Revolving Credit Commitment of such Lender, provided,
however, that the Lenders will not be required and shall have no
obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent
has accelerated the maturity of any of the Notes as a result of an
Event of Default; provided further, however, that immediately after
giving effect to each such Advance, (A) the amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings shall not exceed the
Total Revolving Credit Commitment and (B) Senior Debt Outstandings
shall not exceed the Borrowing Base. Within such limits and subject to
the other terms and conditions of this Agreement, the Borrower may
borrow, repay and reborrow under the Revolving Credit Facility on any
Business Day from the Closing Date until, but (as to borrowings and
reborrowings) not including, the Revolving Credit Termination Date.
(b) Amounts. Except as otherwise permitted by the Lenders from
time to time, the amount of (i) Revolving Credit Outstandings plus
Letter of Credit Outstandings shall not exceed the Total Revolving
Credit Commitment and (ii) Senior Debt Outstandings shall not exceed
the Borrowing Base, and, in the event there shall be outstanding any
such excess, the Borrower shall immediately make such payments and
prepayments of the Revolving Credit Facility as shall be necessary to
comply with these restrictions. Each Advance under the Revolving Credit
Facility, other than Base Rate Refunding Loans, shall be in an amount
of at least $1,000,000, and, if greater than $1,000,000, an integral
multiple of $1,000,000.
(c) Advances.
--------
(i) An Authorized Representative shall give the Agent
(1) at least three (3) Business Days' irrevocable telephonic
notice of each Eurodollar Rate Loan (whether representing an
additional borrowing or the Continuation of a borrowing
hereunder or the Conversion of a borrowing hereunder from a
Base Rate Loan to a Eurodollar Rate Loan) prior to 11:00 A.M.
and (2) irrevocable telephonic notice of each Base Rate Loan
(other than Base Rate Refunding Loans to the extent the same
are effected without notice pursuant to Section 2.1(c)(iii)
and whether representing an additional borrowing hereunder or
the Conversion of borrowing hereunder from Eurodollar Rate
Loans to Base Rate Loans) prior to 11:00 A.M. on the day of
such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Agent, shall specify the amount
of the borrowing,
37
the type of Revolving Loan (Base Rate or Eurodollar Rate), the
date of borrowing and, if a Eurodollar Rate Loan, the Interest
Period to be used in the computation of interest. The
Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice in the form of a
Borrowing Notice or Interest Rate Selection Notice (as
applicable) with appropriate insertions but failure to provide
such confirmation shall not affect the validity of such
telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be,
together with the amount of each Lender's portion of an
Advance requested thereunder, shall be provided by the Agent
to each Lender by telefacsimile transmission with reasonable
promptness, but (provided the Agent shall have received such
notice by 11:00 A.M.) not later than 1:00 P.M. on the same day
as the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified
for each borrowing under this Section 2.1, each Lender shall,
pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be
made by it on such day available by wire transfer to the Agent
in the amount of its pro rata share, determined according to
such Lender's Applicable Commitment Percentage of the
Revolving Loan or Revolving Loans to be made on such day. Such
wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of Dollars constituting
immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of
the proceeds thereof to the Borrower's Account or otherwise as
shall be directed in the applicable Borrowing Notice by the
Authorized Representative and reasonably acceptable to the
Agent.
(iii) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit, such drawing is honored by
the Issuing Bank, and the Borrower shall not immediately fully
reimburse the Issuing Bank in respect of such drawing from
other funds available to the Borrower, (A) provided that the
conditions to making a Loan as herein provided shall then be
satisfied, the Reimbursement Obligation arising from such
drawing shall be paid to the Issuing Bank by the Agent without
the requirement of notice to or from the Borrower from
immediately available funds which shall be advanced as a Base
Rate Refunding Loan to the Agent at its Principal Office by
each Lender under the Revolving Credit Facility in an amount
equal to such Lender's Applicable Commitment Percentage of
such Reimbursement Obligation, and (B) if the conditions to
making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the
Agent (for the benefit of the Issuing Bank) at its Principal
Office in immediately available funds the purchase from the
Issuing Bank of their respective Participations in the related
Reimbursement Obligation based on their respective Applicable
Commitment Percentages of the Total Letter of Credit
Commitment. If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and the Borrower
shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such
38
drawing or payment shall be provided promptly by the Issuing
Bank to the Agent and the Agent shall provide notice to each
Lender by telephone or telefacsimile transmission. If notice
to the Lenders of a drawing under any Letter of Credit is
given by the Agent at or before 12:00 noon on any Business
Day, each Lender shall either make a Base Rate Refunding Loan
or fund the purchase of its Participation as specified above
in the amount of such Lender's Applicable Commitment
Percentage of such drawing or payment and shall pay such
amount to the Agent for the account of the Issuing Bank at the
Principal Office in Dollars and in immediately available funds
before 2:30 P.M. on the same Business Day. If such notice to
the Lenders is given by the Agent after 12:00 noon on any
Business Day, each Lender shall either make such Base Rate
Refunding Loan or fund such purchase before 12:00 noon on the
next following Business Day.
(d) Repayment of Revolving Loans. The principal amount of each
Revolving Loan shall be due and payable to the Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or
earlier as specifically provided herein. The principal amount of any
Revolving Loan may be prepaid in whole or in part (without penalty or
premium, but subject to payment of any amounts required to be paid
pursuant to Section 6.5) on any Business Day, upon (A) at least three
(3) Business Days' irrevocable telephonic notice in the case of each
Revolving Loan that is a Eurodollar Rate Loan from an Authorized
Representative (effective upon receipt) to the Agent prior to 11:00
A.M. and (B) irrevocable telephonic notice in the case of each
Revolving Loan that is a Base Rate Loan from an Authorized
Representative (effective upon receipt) to the Agent prior to 11:00
A.M. on the day of such proposed repayment. The Authorized
Representative shall provide the Agent written confirmation of each
such telephonic notice but failure to provide such confirmation shall
not effect the validity of such telephonic notice. All prepayments of
Revolving Loans made by the Borrower shall be in the amount of
$1,000,000 or such greater amount which is an integral multiple of
$1,000,000, or the amount equal to all Revolving Credit Outstandings,
or such other amount as necessary to comply with Section 2.1(b) or
Section 2.1(g). Subject to Sections 2.1(a) and 7.2, all amounts repaid
under this Section 2.1(d) may be reborrowed hereunder.
(e) Optional Reductions. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than three
(3) Business Days' written notice to the Agent, effective upon receipt,
to reduce the Total Revolving Credit Commitment. The Agent shall give
each Lender, within one (1) Business Day of receipt of such notice,
telefacsimile notice, or telephonic notice (confirmed in writing), of
such reduction. Each such reduction shall be in the aggregate amount of
$1,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total Revolving Credit Commitment,
and shall permanently reduce the Total Revolving Credit Commitment.
Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Revolving Loans to the extent that the
principal amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings exceeds the Total Revolving Credit Commitment after giving
effect to such reduction, together with any
39
amounts required to be paid pursuant to Section 6.5 and accrued and
unpaid interest on the amounts prepaid.
(f) Mandatory Reductions. In addition to any optional
reductions of the Total Revolving Credit Commitment effected under
Section 2.1(e), the Borrower shall make a reduction of the Total
Revolving Credit Commitment in an amount equal to 100% of the Net
Proceeds of each Capital Market Transaction of the Borrower or any
Subsidiary (other than securities issued to the Borrower or another
Subsidiary) permitted, each such reduction to be effective on the date
of receipt of such proceeds and upon not less than five (5) Business
Days' prior written notice to the Agent, which notice shall include a
certificate of an Authorized Representative setting forth in reasonable
detail the calculations utilized in computing the amount of such
reduction. The Agent shall give each Lender, within one (1) Business
Day of receipt of such notice, telefacsimile notice, or telephonic
notice (confirmed in writing) of such reduction. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by prepayment of
the Revolving Loans to the extent that the principal amount of
Revolving Credit Outstandings plus Letter of Credit Outstandings
exceeds the Total Revolving Credit Commitment after giving effect to
such reduction, together with any amounts required to be paid pursuant
to Section 6.5 and accrued and unpaid interest on the amounts prepaid.
(g) Cash Flow Reductions. The Borrower shall use its best
efforts to ensure that the principal amount of all Revolving Loans is
prepaid on each Business Day in an amount equal to the difference of
(i) the aggregate collected cash balance of all Controlled Accounts as
of the close of the immediately preceding Business Day less (ii)
$3,000,000. Prepayments under this subsection shall be applied first to
Base Rate Loans and then, if no such Loans are outstanding, to
Eurodollar Rate Loans, such prepayment to be subject to the provisions
of Section 6.5. Subject to Sections 2.1(a) and 7.2, all amounts repaid
pursuant to this Section 2.1(f) may be reborrowed hereunder.
2.2 Use of Proceeds. The proceeds of Revolving Loans shall be used
by the Borrower to refinance certain existing Indebtedness of the Borrower and
for general working capital needs and other corporate purposes.
2.3 Revolving Notes. Revolving Loans made by each Lender shall be
evidenced by the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Total Revolving
Credit Commitment, which Revolving Note shall be dated the Closing Date or a
later date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
40
ARTICLE III
Letters of Credit
-----------------
3.1 Letters of Credit. The Issuing Bank agrees, subject to the
terms and conditions of this Agreement, upon request of the Borrower to issue
from time to time for the account of the Borrower Letters of Credit upon
delivery to the Issuing Bank of an Application and Agreement for Letter of
Credit relating thereto in form and content acceptable to the Issuing Bank;
provided, that (i) the Issuing Bank shall not issue (or renew) any Letter of
Credit if it has been notified by the Agent or has actual knowledge that a
Default or Event of Default has occurred and is continuing, (ii) the Letter of
Credit Outstandings shall not exceed the Total Letter of Credit Commitment and
(iii) no Letter of Credit shall be issued (or renewed) if, after giving effect
thereto, Letter of Credit Outstandings plus Revolving Credit Outstandings shall
exceed the Total Revolving Credit Commitment or Senior Debt Outstandings shall
exceed the Borrowing Base. No Letter of Credit shall have an expiry date
(including all rights of the Borrower or any beneficiary named in such Letter of
Credit to require renewal) or payment date occurring later than the earlier to
occur of one year after the date of its issuance or the seventh Business Day
prior to the Stated Termination Date.
3.2 Reimbursement and Participations.
--------------------------------
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing
Bank in connection with the Letters of Credit, and in any event and
without demand to place in possession of the Issuing Bank (which shall
include Advances under the Revolving Credit Facility if permitted by
Section 2.1) sufficient funds to pay all debts and liabilities arising
under any Letter of Credit. The Issuing Bank agrees to give the
Borrower prompt notice of any request for a draw under a Letter of
Credit. The Issuing Bank may charge any account the Borrower may have
with it for any and all amounts the Issuing Bank pays under a Letter of
Credit, plus charges and reasonable expenses as from time to time
agreed to by the Issuing Bank and the Borrower; provided that to the
extent permitted by Section 2.1(c)(iii) and Section 2.4, amounts shall
be paid pursuant to Advances under the Revolving Credit Facility. The
Borrower agrees to pay the Issuing Bank interest on any Reimbursement
Obligations not paid when due hereunder at the Default Rate.
(b) In accordance with the provisions of Section 2.1(c), the
Issuing Bank shall notify the Agent of any drawing under any Letter of
Credit promptly following the receipt by the Issuing Bank of such
drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is
obligated to pay the Issuing Bank under Section 3.2(a), each Lender
(other than the Issuing Bank) thereby
41
shall absolutely, unconditionally and irrevocably assume, and shall be
unconditionally obligated to pay to the Issuing Bank, its Applicable
Commitment Percentage of the liability of the Issuing Bank under such
Letter of Credit in the manner and with the effect provided in Section
2.1(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to Section 2.1(c)(iii)(B), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to
make payment to the Agent for the account of the Issuing Bank pursuant
to Section 2.1(c)(iii) and Section 3.2(c), and the right of the Issuing
Bank to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and shall be made
without any offset, abatement, withholding or reduction whatsoever. In
the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth above, then at any time payment
(in fully collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by the Issuing Bank from
the Borrower, the Issuing Bank shall promptly pay to each Lender an
amount equal to its Applicable Commitment Percentage of such payment
from the Borrower.
(e) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent a notice describing the
aggregate undrawn amount of all Letters of Credit at the end of such
quarter. Upon the request of any Lender from time to time, the Issuing
Bank shall deliver to the Agent, and the Agent shall deliver to such
Lender, any other information reasonably requested by such Lender with
respect to each Letter of Credit outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Article
VII, be subject to the conditions that such Letter of Credit be in such
form and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, and the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as the Issuing Bank shall
have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
or, if the Issuing Bank shall elect by express reference in an affected
Letter of Credit, the International Chamber of Commerce International
Standby Practices commonly referred to as "ISP98," or any subsequent
amendment or revision of either thereof.
(g) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be
signed or issued by an administrator, executor, trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
42
liquidator, receiver, attorney in fact or other legal representative of
a party who is authorized under such Letter of Credit to draw or issue
any drafts or other documents.
(h) Without limiting the generality of the provisions of
Section 13.9, the Borrower hereby agrees to indemnify and hold harmless
the Issuing Bank, each other Lender and the Agent from and against any
and all claims and damages, losses, liabilities, reasonable costs and
expenses which the Issuing Bank, such other Lender or the Agent may
incur (or which may be claimed against the Issuing Bank, such other
Lender or the Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any
Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, (i) caused by the willful misconduct or gross
negligence of the party to be indemnified or (ii) caused by the failure
of the Issuing Bank to pay under any Letter of Credit after the
presentation to it of a request for payment strictly complying with the
terms and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree. The
indemnification and hold harmless provisions of this Section 3.2(h)
shall survive repayment of the Obligations, occurrence of the Revolving
Credit Termination Date, the Facility Termination Date and expiration
or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in Section
3.2(h), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing
Bank's right to receive such payment shall be absolute, unconditional
and irrevocable, and such obligations of the Borrower shall be
performed strictly in accordance with the terms of this Agreement and
such Letters of Credit and the related Application and Agreement for
any Letter of Credit, under all circumstances whatsoever, including the
following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities
43
for whom such beneficiary or any such transferee may be
acting), the Agent, the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
44
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
-------------------------------------------------
4.1 Interest Rate Options.
---------------------
(a) Eurodollar Rate Loans and Base Rate Loans may be
outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have
the option to elect the Type of Loan and the duration of the initial
and any subsequent Interest Periods and to Convert Revolving Loans in
accordance with Sections 2.1(c)(i) and 4.2, as applicable; provided,
however, (a) there shall not be outstanding at any one time Eurodollar
Rate Loans having more than six (6) different Interest Periods, (b)
each Eurodollar Rate Loan (including each Conversion into and each
Continuation as a Eurodollar Rate Loan) shall be in an amount of
$1,000,000 or, if greater than $1,000,000, an integral multiple of
$1,000,000, and (c) no Eurodollar Rate Loan shall have an Interest
Period that extends beyond the Stated Termination Date. If the Agent
does not receive a Borrowing Notice or an Interest Rate Selection
Notice giving notice of election of the duration of an Interest Period
or of Conversion of any Loan to or Continuation of a Loan as a
Eurodollar Rate Loan by the time prescribed by Sections 2.1(c)(i) and
4.2, as applicable, the Borrower shall be deemed to have elected to
obtain or Convert such Loan to (or Continue such Loan as) a Base Rate
Loan until the Borrower notifies the Agent in accordance with Section
4.2. The Borrower shall not be entitled to elect to Continue any Loan
as or Convert any Loan into a Eurodollar Rate Loan if a Default or
Event of Default shall have occurred and be continuing.
(b) In the event the Borrowing Base includes the Overadvance
Basket, either as set forth in any Borrowing Base Certificate or as
otherwise determined in the definition of Borrowing Base, the
Applicable Margin shall, ipso facto, be increased by 25 basis points
(.25%) commencing on the date of inclusion of the Overadvance Basket in
the Borrowing Base as a result of a calculation of Senior Debt
Outstandings or request for an Advance, and continue to be in effect at
such increased level for each day until and including the date on which
the Borrowing Base does not include the Overadvance Basket.
4.2 Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth in the definition of "Interest Period" and in
Section 4.1 and Article VI, the Borrower may:
(a) upon delivery of telephonic notice to the Agent (which
shall be irrevocable) on or before 11:00 A.M. on any Business Day,
Convert any Eurodollar Rate Loan to a Base Rate Loan on the last day of
the Interest Period for such Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of telephonic notice to the
Agent (which shall be irrevocable
45
on or before 11:00 A.M. three (3) Business Days' prior to the date of
such Conversion or Continuation:
(i) elect a subsequent Interest Period for any
Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a Eurodollar Rate
Loan on any Business Day.
Each such notice shall be effective upon receipt by the Agent, shall specify the
amount of the Eurodollar Rate Loan affected and, if a Continuation as or
Conversion into a Eurodollar Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be, shall be provided by the
Agent to each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Agent shall have received such notice by 11:00 A.M.) not later
than 3:00 P.M. on the same day as the Agent's receipt of such notice. All such
Continuations or Conversions of Loans shall be effected pro rata based on the
Applicable Commitment Percentages of the Lenders.
4.3 Payment of Interest. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Revolving Loan, commencing on
the first date of such Revolving Loan until such Revolving Loan shall be repaid
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Revolving Loan shall be paid on the earlier
of (a) in the case of any Base Rate Loan, quarterly in arrears of the last
Business Day of each March, June, September and December, commencing on March
31, 2000, until the Revolving Credit Termination Date, at which date as
applicable the entire principal amount of and all accrued interest on the
Revolving Loans shall be paid in full, (b) in the case of any Eurodollar Rate
Loan, on last day of the applicable Interest Period for such Eurodollar Rate
Loan and if such Interest Period extends for more than three (3) months, at
intervals of three (3) months after the first day of such Interest Period, and
(c) upon payment in full of the Revolving Loan; provided, however, that if any
Event of Default shall occur and be continuing, all amounts outstanding
hereunder shall bear interest thereafter until paid in full at the Default Rate.
4.4 Prepayments of Eurodollar Rate Loans. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by prepayment or as otherwise required or permitted hereunder,
with the effect that any Eurodollar Rate Loan shall be prepaid in whole or in
part prior to the last day of the Interest Period applicable to such Eurodollar
Rate Loan, such payment of principal shall be accompanied by the additional
payment, if any, required by Section 6.5.
46
4.5 Manner of Payment.
-----------------
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Agent, or Bank of America with respect to any Revolving Loan, Letter of
Credit or Reimbursement Obligation, shall be made to the Agent at the
Principal Office in Dollars in immediately available funds without
condition or deduction for any setoff, recoupment, deduction or
counterclaim on or before 12:30 P.M. on the date such payment is due.
The Agent may, but shall not be obligated to, debit the amount of such
payment from any one or more ordinary deposit accounts of the Borrower
with the Agent.
(b) Any payment made by or on behalf of the Borrower that is
not made both in Dollars in immediately available funds and prior to
12:30 P.M. on the date such payment is to be made shall constitute a
non-conforming payment. Any such non-conforming payment shall not be
deemed to be received until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a
non-conforming payment is made from the date such amount was due and
payable until the later of (i) the date such funds become available
funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of
the Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business
Day unless provided otherwise under the definition of "Interest
Period"; provided, however, that interest shall continue to accrue
during the period of any such extension; and provided further, however,
that in no event shall any such due date be extended beyond the
Revolving Credit Termination Date.
4.6 Fees.
----
(a) Commitment Fee. For the period beginning on the Closing
Date and ending on the Revolving Credit Termination Date, the Borrower
agrees to pay to the Agent, for the pro rata benefit of the Lenders
based on their Applicable Commitment Percentages, a commitment fee
equal to the Applicable Commitment Fee multiplied by the average daily
amount by which the Total Revolving Credit Commitment exceeds the sum
of (i) Revolving Credit Outstandings plus (ii) Letter of Credit
Outstandings. Such fees shall be due in arrears on the last Business
Day of each March, June, September and December, commencing March 31,
2000 to and on the Revolving Credit Termination Date. Notwithstanding
the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender
shall not be entitled to receive payment of its pro rata share of such
fee until such Lender shall make available such portion.
47
(b) Letter of Credit Facility Fees. The Borrower shall pay to
the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a fee on the aggregate amount
available to be drawn on each outstanding Letter of Credit at a rate
equal to the Applicable Margin for Eurodollar Rate Loans. Such fees
shall be due with respect to each Letter of Credit quarterly in arrears
on the last day of each March, June, September and December, the first
such payment to be made on the first such date occurring after the date
of issuance of a Letter of Credit.
(c) Letter of Credit Fronting and Administrative Fees. The
Borrower shall pay to the Issuing Bank a fronting fee of one-eighth
percent per annum (.125%) on the stated amount of each Letter of Credit
calculated for the stated term, such fee to be payable in full at or
prior to the time of issuance of such Letter of Credit. Any renewal or
continuation of a Letter of Credit beyond its current stated term shall
be deemed to be a new issuance of such Letter of Credit subject to
payment of a fronting fee as herein calculated. The Borrower shall also
pay to the Issuing Bank such administrative fee and other fees, if any,
in connection with the Letters of Credit in such amounts and at such
times as the Issuing Bank and the Borrower shall agree from time to
time.
(d) Agent Fees. The Borrower agrees to pay to the Agent, for
the Agent's individual account, an annual Agent's fee, such fee to be
payable in such amounts and at such dates as from time to time agreed
to by the Borrower and Agent in writing.
4.7 Pro Rata Payments. Except as otherwise specified herein, (a)
each payment on account of the principal of and interest on Loans, the fees
described in Section 4.6(a), (b) and (c), and Reimbursement Obligations as to
which the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Agent for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, and (b) the Agent will
promptly distribute to the Lenders in immediately available funds payments
received in fully collected, immediately available funds from the Borrower.
4.8 Computation of Rates and Fees. Except as may be otherwise
expressly provided, all interest rates (other than the Prime Rate which shall be
computed on the basis of the actual number of days elapsed in a year of 365/366
days) and fees shall be computed on the basis of a year of 360 days and
calculated for actual days elapsed.
4.9 Deficiency Advances; Failure to Purchase Participations. No
Lender shall be responsible for any default of any other Lender in respect to
such other Lender's obligation to make any Loan or Advance hereunder or to fund
its purchase of any Participation hereunder nor shall the Revolving Credit
Commitment or Letter of Credit Commitment of any Lender hereunder be increased
as a result of such default of any other Lender. Without limiting the generality
of the foregoing or the provisions of Section 4.10, in the event any Lender
shall fail to advance funds to the Borrower as herein provided, the Agent may in
its discretion, but shall not be obligated to, advance under the applicable Note
in its favor as a Lender all or any portion of such amount or amounts (each, a
"deficiency advance") and shall thereafter be entitled to payments of principal
of and interest on such deficiency advance in the same manner and at the same
interest rate or rates to which such other Lender would have been entitled had
it made such
48
Advance under its Note; provided that, (i) such defaulting Lender shall not be
entitled to receive payments of principal, interest or fees with respect to such
deficiency advance until such deficiency advance (together with interest thereon
as provided in clause (ii)) shall be paid by such Lender and (ii) upon payment
to the Agent from such other Lender of the entire outstanding amount of each
such deficiency advance, together with accrued and unpaid interest thereon at
the Federal Funds Rate, from the most recent date or dates interest was paid to
the Agent by the Borrower on each Loan comprising the deficiency advance, then
such payment shall be credited against the applicable Note of the Agent in full
payment of such deficiency advance and the Borrower shall be deemed to have
borrowed the amount of such deficiency advance from such other Lender as of the
most recent date or dates, as the case may be, upon which any payments of
interest were made by the Borrower thereon. In the event any Lender shall fail
to fund its purchase of a Participation after notice from the Issuing Bank, such
Lender shall pay to the Issuing Bank, such amount on demand, together with
interest at the Federal Funds Rate on the amount so due from the date of such
notice to the date such purchase price is received by the Issuing Bank.
4.10 Intraday Funding. Without limiting the provisions of Section 4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
such payment, the Agent may, in its discretion, assume that the Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such payment (or portion thereof) to the Person entitled thereto as
otherwise provided herein. If such payment was not in fact remitted to the Agent
in the manner required hereunder, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid
to the Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor, the Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (B) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of Section 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the
49
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
50
ARTICLE V
Security
5.1 Security.
--------
(a) As security for the full and timely payment and
performance of all Obligations, the Borrower shall, and shall cause all
other Credit Parties to, on or before the Closing Date, do or cause to
be done all things necessary in the opinion of the Agent and its
counsel to (i) grant to the Priority Collateral Agent for the benefit
of the Priority Secured Parties to secure the Priority Senior
Obligations a Priority Lien in all now owned or hereafter acquired
Priority Collateral subject to no prior Lien or other encumbrance or
restriction on transfer (other than restrictions on transfer imposed by
applicable securities laws), and (ii) grant to the General Collateral
Agent for the benefit of the General Secured Parties to secure the
General Senior Obligations a General Lien in all now owned or hereafter
acquired General Collateral subject to no prior Lien or other
encumbrance or restriction on transfer (other than any Priority Lien
and restrictions on transfer imposed by applicable securities laws).
(b) Without limiting the foregoing, the Borrower and each
Domestic Subsidiary having rights in any Subsidiary Securities shall on
the Closing Date deliver to the General Collateral Agent, in form and
substance reasonably acceptable to the Agent, (A) a Pledge Agreement
which shall pledge to the General Collateral Agent for the benefit of
the General Secured Parties (i) 65% of the Voting Securities of each
Material Direct Foreign Subsidiary (to the extent 65% of such Voting
Securities is owned by the Borrower or such Domestic Subsidiary and, if
less than such 65% is so owned, then 100% of such lesser amount) and
100% of the non-voting Subsidiary Securities of such Direct Foreign
Subsidiary, (ii) 100% of the Subsidiary Securities of all Domestic
Subsidiaries and (iii) all of the membership interests of the Borrower
in Cone Receivables II LLC, (B) if such Subsidiary Securities are in
the form of certificated securities, such certificated securities,
together with undated stock powers or other appropriate transfer
documents endorsed in blank pertaining thereto, (C) if such Subsidiary
Securities do not constitute securities and the issuer thereof has not
elected to have such interests treated as securities under Article 8 of
the Uniform Commercial Code, a control agreement (containing the
provisions described in Section 9.20(f)(ii)) from the Registrar of such
Subsidiary Securities and (D) Uniform Commercial Code financing
statements reflecting the General Lien in favor of the General
Collateral Agent on such Subsidiary Securities, each in form and
substance acceptable to the Agent, and shall take such further action
and deliver or cause to be delivered such further documents as required
by the Security Documents or otherwise as the Agent may request to
effect the transactions contemplated by this Article V. The Borrower
shall, and shall cause each Domestic Subsidiary to, pledge to the
General Collateral Agent for the benefit of the General Secured Parties
to secure the General Senior Obligations (and as appropriate to
reaffirm its prior pledge of) all of the Pledged Interests of any
Domestic Subsidiary or Direct Foreign Subsidiary acquired or created
after the Closing Date to the respective extent set forth above and
deliver to the General Collateral Agent all of the documents
51
and instruments in connection therewith as are required pursuant to the
terms of Section 9.20 and of the Security Documents.
(c) As further security for the full and timely payment and
performance of all Obligations, Atlantic Financial Group, Ltd.
(borrower under the Senior Lease Documents) on or before the Closing
Date the Borrower will execute and deliver the Senior Lease Facility
Mortgage and do or cause to be done all things necessary in the opinion
of the Agent and its counsel to grant to the Agent for the benefit of
the Agent and the Lenders a Lien on the Senior Lease Facility subject
to no prior Lien or other encumbrance or restriction on transfer other
than Permitted Liens and Liens in favor of the Senior Lease Creditor.
The Agent and the Senior Lease Creditor shall have entered into the
Leased Facility Intercreditor Agreement on or prior to the Closing
Date.
5.2 Further Assurances. At the request of the Agent, the Borrower
will or will cause all other Credit Parties, as the case may be, to execute, by
its duly authorized officers, alone or with the Agent, General Collateral Agent
or the Priority Collateral Agent, as applicable, any certificate, instrument,
financing statement, control agreement, statement or document, or to procure any
such certificate, instrument, statement or document, or to take such other
action (and pay all connected costs) which the Agent, the Priority Collateral
Agent, the General Collateral Agent or any of them reasonably deems necessary
from time to time to create, continue or preserve the Priority Liens in the
Priority Collateral, the General Liens in the General Collateral and the Lien on
the Senior Leased Facility (and the perfection and priority thereof) and
specifically including all Collateral acquired by the Borrower or other Credit
Party after the Closing Date. Each of the Agent, General Collateral Agent and
the Priority Collateral Agent is hereby irrevocably authorized to execute and
file or cause to be filed, with or if permitted by applicable law without the
signature of the Borrower or any Credit Party appearing thereon, all Uniform
Commercial Code financing statements reflecting the Borrower or any other Credit
Party as "debtor" and the Agent (on behalf of the Lenders), General Collateral
Agent (on behalf of the General Secured Parties) or the Priority Collateral
Agent (on behalf of the Priority Secured Parties), as applicable, as "secured
party", and continuations thereof and amendments thereto, as the Agent or either
of the Collateral Agents reasonably deems necessary or advisable to give effect
to the transactions contemplated hereby and by the other Loan Documents.
5.3 Information Regarding Collateral. The Borrower represents,
warrants and covenants that (i) the chief executive office of the Borrower and
each other Person providing Collateral pursuant to a Security Document (each, a
"Grantor") at the Closing Date is located at the address or addresses specified
on Schedule 5.3, and (ii) Schedule 5.3 contains a true and complete list of (a)
the exact legal name, jurisdiction of formation, and address of each Grantor and
of each other Person that has effected any merger or consolidation with a
Grantor or contributed or transferred to a Grantor any property constituting
Collateral at any time since January 1, 1995 (excluding Persons making sales in
the ordinary course of their businesses to a Grantor of property constituting
inventory in the hands of such seller), (b) the exact legal name, jurisdiction
of formation, and each location of the chief executive office of each Grantor at
any time since January 1, 1995, (c) each location in the United States in which
goods constituting material Collateral are or have been located since January 1,
1995 (together with the name of each owner of the property located at such
address if not the applicable Grantor, and a summary
52
description of the relationship between the applicable Grantor and such Person),
and (d) each trade style used by any Grantor or any division thereof since
January 1, 1995 and the purposes for which it was used. The Borrower shall not
change, and shall not permit any other Grantor to change, its name, jurisdiction
of formation (whether by reincorporation, merger or otherwise), the location of
its chief executive office or any location specified in clause (c) of the
immediately preceding sentence, or use or permit any other Grantor or any
division thereof to use, any additional trade style, except upon giving not less
than thirty (30) days' prior written notice to the Agent and taking or causing
to be taken all such action at Borrower's or such other Grantor's expense as may
be reasonably requested by the Agent, the General Collateral Agent or the
Priority Collateral Agent to perfect or maintain the perfection of the General
Lien in the General Collateral and the Priority Lien in the Priority Collateral.
5.4 Mortgages.
---------
(a) Without limiting the generality of Section 5.1, the
Borrower, as security for all Priority Senior Obligations, and each
Domestic Subsidiary, as security for the Guarantors' Obligations and
for all Priority Senior Obligations, as applicable, shall deliver to
the Priority Collateral Agent (i) on the Closing Date, with respect to
each parcel of real property owned or leased by the Borrower or a
Subsidiary listed on Schedule 5.4, a Priority Mortgage, and (ii)
thereafter, with respect to each parcel of real property owned,
acquired or leased by the Borrower or a Domestic Subsidiary with a fair
market value greater than $300,000, unless otherwise determined by the
Required Lenders, a Priority Mortgage with respect to such parcel of
real property and, (A) to the extent such real property is or becomes
Material Real Property, the related Material Real Property Support
Documents and (B) to the extent required by any law, regulation or
directive of any applicable Governmental Authority, such required
Material Real Property Support Documents.
(b) Without limiting the generality of Section 5.1, the
Borrower, as security for all General Senior Obligations, and each
Domestic Subsidiary, as security for all General Senior Obligations
and, if a Guarantor, for the Guarantors' Obligations, as applicable,
shall deliver to the General Collateral Agent (i) on the Closing Date,
with respect to each parcel of real property owned or leased by the
Borrower or a Subsidiary listed on Schedule 5.4, a General Mortgage,
and (ii) thereafter, with respect to each parcel of real property
owned, acquired or leased by the Borrower or a Domestic Subsidiary with
a fair market value greater than $300,000, unless otherwise determined
by the Required Lenders, a General Mortgage with respect to such parcel
of real property and, (A) to the extent such real property is or
becomes Material Real Property, the related Material Real Property
Support Documents and (B) to the extent required by any law, regulation
or directive of any applicable Governmental Authority, such required
Material Real Property Support Documents.
5.5 Intercreditor Matters.
---------------------
(a) Each Lender from time to time party hereto, the Agent and
the Borrower hereby consent to and agree with the terms of the Senior
Debt Intercreditor Agreement
53
and such Lenders hereby (i) acknowledge and agree that each General
Lien and/or Priority Lien in all Collateral now owned or hereafter
acquired and all remedies available with respect to such Collateral are
subject to the terms of the Senior Debt Intercreditor Agreement, (ii)
directs the Agent on their behalf to enter into each of the Senior Debt
Intercreditor Agreement and the Collateral Agency Agreements and
consents to the service by the Agent in the capacity of Priority
Collateral Agent and Designated Collateral Subagent (as defined in the
General Security Agreement) and (iii) acknowledges and agrees that:
(A) With respect to the Debenture Holders, the
determination of the Required Enforcement General Secured
Parties shall be made based on the entire amount of Senior
Debenture Obligations then outstanding voting on a
consolidated basis as a single vote as directed to the Bond
Trustee by such Debenture Holders as may be required for any
enforcement action under the terms of the Indenture, and
(B) With respect to the Lenders, the determination of
the Required Enforcement General Secured Parties, the Required
General Secured Parties and the Required Priority Secured
parties shall be made based on the entire amount of Senior
Revolving Credit Obligations then outstanding voting on a
consolidated basis as a single vote as directed by the
Required Lenders.
(b) Each Lender from time to time party hereto, the Agent and
the Borrower hereby further consent to and agree with the terms of the
Leased Facility Intercreditor Agreement and the Securitization
Intercreditor Agreement and directs the Agent on their behalf to enter
into such agreements.
54
ARTICLE VI
Change in Circumstances
6.1 Increased Cost and Reduced Return.
---------------------------------
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Eurodollar Rate Loans, its Note, or its obligation to
make Eurodollar Rate Loans, or change the basis of taxation of
any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Note in respect of any
Eurodollar Rate Loans (other than taxes imposed on the overall
net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Revolving Credit
Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or its Note or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Note with respect to any Eurodollar Rate Loans, then
the Borrower shall pay to such Lender on demand such amount or amounts
as will compensate such Lender for such increased cost or reduction. If
any Lender requests compensation by the Borrower under this Section
6.1(a), the Borrower may, by notice to such Lender (with a copy to the
Agent), suspend the obligation of such Lender to make or Continue Loans
of the Type with respect to which such compensation is requested, or to
Convert Loans of any other Type into Loans of such Type, until the
event or condition giving rise to such request ceases to be in effect
(in which case the
55
provisions of Section 6.4 shall be applicable); provided that such
suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
Section 6.1 and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this
Section 6.1 shall furnish to the Borrower and the Agent a statement
setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error.
In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
6.2 Limitation on Types of Loans. If on or prior to the first
day of any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
56
6.3 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Rate Loans
hereunder, then such Lender shall promptly notify the Borrower thereof and such
Lender's obligation to make or Continue Eurodollar Rate Loans and to Convert
other Types of Loans into Eurodollar Rate Loans shall be suspended until such
time as such Lender may again lawfully make, maintain, and fund Eurodollar Rate
Loans (in which case the provisions of Section 6.4 shall be applicable).
6.4 Treatment of Affected Loans. If the obligation of any Lender
to make a Eurodollar Rate Loan or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 6.1
or 6.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 6.3 hereof, on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 6.1 or 6.3 hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 6.1 or 6.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 6.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Revolving
Credit Commitments.
6.5 Compensation. Upon the request of any Lender, the Borrower
shall pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
57
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 11.1) on a date other
than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Article VII to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
6.6 Taxes.
-----
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender (or its Applicable Lending Office) or the Agent
(as the case may be) is organized or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 6.6) such Lender or the Agent receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in Section 13.2,
the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 6.6) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case
58
of each Lender listed on the signature pages hereof and on or prior to
the date on which it becomes a Lender in the case of each other Lender,
and from time to time thereafter if requested in writing by the
Borrower or the Agent (but only so long as such Lender remains lawfully
able to do so), shall provide the Borrower and the Agent with (i)
Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax treaty to
which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal
Revenue Service Form W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Lender is entitled to an exemption from or a
reduced rate of tax on payments pursuant to this Agreement or any of
the other Loan Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the appropriate form
pursuant to Section 6.6(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be
entitled to indemnification under Section 6.6(a) or 6.6(b) with respect
to Taxes imposed by the United States; provided, however, that should a
Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 6.6, then
such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent the original or a
certified copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 6.6 shall survive the termination of
the Revolving Credit Commitments and the payment in full of the Notes
and the Facility Termination Date.
59
ARTICLE VII
Conditions to Making Loans and Issuing Letters of Credit
--------------------------------------------------------
7.1 Conditions of Initial Advance. The obligation of the Lenders
to make the initial Advance under the Revolving Credit Facility, and of the
Issuing Bank to issue any Letter of Credit, is subject to the conditions
precedent that:
(a) the Agent shall have received on the Closing Date,
in form and substance satisfactory to the Agent and Lenders, the
following:
(i) executed originals of each of this Agreement, the
Notes, the initial Facility Guaranties, the initial Security
Documents, and the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinions with respect to
the Loan Documents and the transactions contemplated thereby
of special counsel to the Credit Parties (including special
indenture counsel) in the jurisdictions of North Carolina,
South Carolina, New York and Mexico, dated the Closing Date,
addressed to the Agent and the Lenders and satisfactory to
Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., special counsel to the
Agent, substantially in the form of Exhibit G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(v) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vi) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(vii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(viii) appropriate certificates of qualification to
do business, good standing and, where appropriate, authority
to conduct business under assumed name, issued in respect of
each of the Credit Parties as of a recent date by the
Secretary of State or comparable official of each jurisdiction
in which the failure
60
to be qualified to do business or authorized so to conduct
business could have a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative(s);
(x) a Compliance Certificate as of the end of the
fiscal quarter most recently ended prior to the Closing Date;
(xi) evidence of all insurance required by the Loan
Documents;
(xii) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xiii) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the General Liens of the
General Collateral Agent under the General Security
Instruments and the Priority Liens of the Priority Collateral
Agent under the Priority Security Instruments and the Lien of
the Agent in the Senior Leased Facility, as to items of
Collateral in which a security interest may be perfected by
the filing of financing statements, and such other documents
and/or evidence of other actions as may be necessary under
applicable law to perfect the General Liens of the General
Collateral Agent under the General Security Instruments and
the Priority Liens of the Priority Collateral Agent under the
Priority Security Instruments and the Lien of the Agent in the
Senior Leased Facility, as the Agent, General Collateral Agent
or Priority Collateral Agent may require, including without
limitation the delivery by the Borrower of all certificates
evidencing Pledged Interests, accompanied in each case by duly
executed stock powers (or other appropriate transfer
documents) in blank affixed thereto;
(xiv) evidence satisfactory to the Agent of the
payment in full and termination of the Existing Credit
Agreement;
(xv) executed originals of the Collateral Agency
Agreements and the Senior Debt Intercreditor Agreement;
(xvi) executed originals of the Securitization
Intercreditor Agreement and the Leased Facility Intercreditor
Agreement;
(xvii) copies of the Senior Indenture, the Senior
Note Agreement, the Xxxxxx Swap Agreement, the Receivables
Transfer Agreement, the Receivables Purchase Agreement and the
Senior Lease Documents, together with all material agreements
executed in connection therewith, and amendments of the Senior
Note Agreement, the Senior Lease Documents, the Receivables
Transfer Agreement and the Receivables Purchase Agreement each
in form and substance acceptable to the Lenders, certified as
true and correct by an Authorized Officer of the Borrower;
61
(xviii) evidence that all fees payable by the
Borrower on the Closing Date to the Agent, BAS and the Lenders
have been paid in full;
(xix) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Lenders;
(xx) the consolidated financial statements of the
Borrower and its Subsidiaries for the fiscal years ended 1996,
1997 and 1998, including balance sheets, income and cash flow
statements audited by independent public accountants of
recognized national standing and prepared in conformity with
GAAP and such other financial information as the Agent may
request, all in form and substance acceptable to the Agent and
the Lenders;
(xxi) information as may be requested by the Agent
regarding litigation, tax, accounting, labor, insurance,
pension liabilities (actual or contingent), real estate
leases, material contracts, debt agreements, property
ownership, environmental matters, contingent liabilities and
management of the Borrower and its Subsidiaries, which
information shall include, if requested by the Agent, (a)
asset appraisal reports with respect to all of the material
real and personal property owned by the Borrower and its
Subsidiaries, and (b) a written audit of the accounts
receivable not sold to Cone Receivables II LLC, inventory,
payables, controls and systems of the Borrower and its
Subsidiaries, all in form and substance acceptable to the
Agent and the Lenders;
(xxii) information confirming that the Borrower's and
its Subsidiaries' material computer applications and those of
its key vendors and customers adequately address the Year 2000
Problem in all material respects, all in form and substance
acceptable to the Agent and the Lenders;
(xxiii) delivery of Material Real Property Support
Documents as may be required by any Governmental Authority in
connection with the delivery of any Mortgage;
(xxiv) executed officer's certificate by the chief
financial officer of the Borrower as to compliance with
Section 3.9(i) of the Indenture;
62
(xxv) the projected Borrowing Base as of the Closing
Date, acceptable to the Lenders in form and substance;
(xxvi) thirteen week consolidated cash flow
projections of the Borrower and its Subsidiaries commencing
with the week starting January 17, 2000, acceptable to the
Lenders in form and substance;
(xxvii) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby; and
(b) In the good faith judgment of the Agent and the
Lenders:
(i) except as otherwise disclosed in public filings
made with the Securities and Exchange Commission or disclosed
in the financial projections delivered to the Agent by the
Borrower dated October, 1999 (the "October Projections"), or
as disclosed to the Lenders with respect to a certain
customer's payment practices, there shall not have occurred a
material adverse change since January 3, 1999 in the business,
assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole or in the facts
and information regarding such entities as represented to date
other than as reflected in the October Projections;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened in any court or before any arbitrator or
Governmental Authority which could reasonably be likely to
result in a Material Adverse Effect;
(iii) the Credit Parties shall have received all
governmental, shareholder and third party approvals, consents
and waivers necessary or advisable in connection with the Loan
Documents and the transactions contemplated thereby, all of
which shall be in full force and effect, and shall have made
or given all necessary filings and notices as shall be
required, and all applicable waiting periods shall have
expired, to consummate the transactions contemplated hereby
without the occurrence of any default under, conflict with or
violation of (A) any applicable law, rule, regulation, order
or decree of any Governmental Authority or arbitral authority
or (B) any agreement, document or instrument to which any of
the Credit Parties is a party or by which any of them or their
properties is bound, except for such approvals, consents,
waivers, filings and notices the receipt, making or giving of
which will not have a Material Adverse Effect;
(iv) each of the lenders under the Existing Credit
Agreement is a Lender party hereto with a Revolving Credit
Commitment hereunder of not less than its equivalent
commitment under the Existing Credit Agreement; and
(v) each of the Lenders is satisfied with (a) the
form and content of all agreements relating to other
Indebtedness of the Borrower and its Subsidiaries, including
the Intercreditor Agreements, (b) the corporate capital and
ownership structure of the Borrower and its Subsidiaries
(including articles of incorporation, bylaws and management of
the Borrower and its Subsidiaries) and (c) the status of all
litigation of the Borrower and its Subsidiaries.
63
7.2 Conditions of Revolving Loans and Letter of Credit. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue (or renew) Letters of Credit, hereunder on or subsequent to the Closing
Date are subject to the satisfaction of the following conditions:
(a) the Agent shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Credit Parties
set forth in Article VIII and in each of the other Loan Documents shall
be true and correct in all material respects on and as of the date of
such Advance or Letter of Credit issuance or renewal, with the same
effect as though such representations and warranties had been made on
and as of such date, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 8.6(a) shall be deemed
(solely for the purpose of the representation and warranty contained in
such Section 8.6(a) but not for the purpose of any cross reference to
such Section 8.6(a) or to the financial statements described therein
contained in any other provision of Section 8.6 or elsewhere in Article
8) to be those financial statements most recently delivered to the
Agent and the Lenders pursuant to Section 9.1 from the date financial
statements are delivered to the Agent and the Lenders in accordance
with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance
or the issuance of a Letter of Credit, no Default or Event of Default
specified in Article XI shall have occurred and be continuing; and
(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Revolving Loans for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Revolving Loan or a Letter of Credit or
renewal thereof, (A) the sum of Revolving Credit Outstandings
plus Letter of Credit Outstandings shall
64
not exceed the Total Revolving Credit Commitment and (B)
Senior Debt Outstandings shall not exceed the Borrowing Base.
65
ARTICLE VIII
Representations and Warranties
------------------------------
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
8.1 Organization and Authority.
--------------------------
(a) The Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which failure so to qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party (other than the Borrower) has the power
and authority to execute, deliver and perform the Facility Guaranty and
each of the other Loan Documents to which it is a party;
(e) When executed and delivered, each of the Loan Documents to
which any Credit Party is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of such Credit Party,
enforceable against such Credit Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar law affecting the
enforceability of creditors' rights generally and to the effect of
general principles of equity (whether considered in a proceeding at law
or in equity); and
(f) The Security Documents create valid security interests in
the Collateral purported to be covered thereby, which security
interests and Liens are and will remain perfected security interests
and Liens, prior to all other Liens other than Permitted Liens.
8.2 Loan Documents. The execution, delivery and performance by
each Credit Party of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
66
(b) do not violate any provisions of (i) any applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
or any Subsidiary except any Liens in favor of the Secured Parties
created by the Security Documents.
8.3 Solvency. Each Credit Party is Solvent after giving effect to
the transactions contemplated by the Loan Documents.
8.4 Subsidiaries and Stockholders. The Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries in Schedule 8.4 and
additional Subsidiaries created or acquired after the Closing Date in compliance
with Section 9.20; Schedule 8.4 states as of the date hereof the organizational
form of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
8.4, free and clear of any Lien (other than Liens in favor of the Collateral
Agents under the Security Documents).
8.5 Ownership Interests. Borrower owns no interest in any Person
other than the Persons listed in Schedule 8.4, equity investments in Persons not
constituting Material Subsidiaries permitted under Section 10.7 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 9.20.
8.6 Financial Condition.
-------------------
(a) The Borrower has heretofore furnished to each Lender an
audited consolidated balance sheet of the Borrower and its Subsidiaries
as at January 3, 1999 and the notes thereto and the related
consolidated statements of income, stockholders' equity and cash flows
for the Fiscal Year then ended as examined and certified by McGladrey &
Xxxxxx LLP, and unaudited consolidated interim financial statements of
the Borrower and its Subsidiaries consisting of a consolidated balance
sheets and related consolidated
67
statements of income, stockholders' equity and cash flows, in each case
without notes, for and as of the end of the nine month period ending
October 3, 1999. Except as set forth therein, such financial statements
(including the notes thereto) present fairly the financial condition of
the Borrower and its Subsidiaries as of the end of such Fiscal Year and
nine month period and results of their operations and the changes in
its stockholders' equity for the Fiscal Year and interim period then
ended, all in conformity with GAAP applied on a Consistent Basis,
subject however, in the case of unaudited interim statements to year
end audit adjustments;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to Section 8.6(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
Section 9.1(a) hereof, there has been no material adverse change in the
condition, financial or otherwise, of the Borrower or any of its
Subsidiaries or in the businesses, properties, performance, prospects
or operations of the Borrower or its Subsidiaries, nor have such
businesses or properties been materially adversely affected as a result
of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God other than (i) as
set forth in the October Projections and (ii) as disclosed to the
Lenders with respect to a certain customer's payment practices; and
(c) except as set forth in the financial statements referred
to in Section 8.6(a) or in Schedule 8.6 or permitted by Section 10.5,
neither the Borrower nor any Subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness, Contingent
Obligation or other commitment or liability which remains outstanding
or unsatisfied.
8.7 Title to Properties. The Borrower and each of its Subsidiaries
and each other Credit Party has good and marketable title to all its real and
personal properties, subject to no transfer restrictions or Liens of any kind,
except for the transfer restrictions and Liens described in Schedule 8.7 and
Liens permitted by Section 10.4.
8.8 Taxes. Except as set forth in Schedule 8.8, the Borrower and
each of its Subsidiaries has filed or caused to be filed all federal, state and
local tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves (if required in accordance with GAAP) are
reflected in the financial statements described in Section 8.6(a) or Sections
9.1(a) or (b) and satisfactory to the Borrower's independent certified public
accountants have been established, have paid or caused to be paid all taxes as
shown on said returns or on any assessment received by it, to the extent that
such taxes have become due.
8.9 Other Agreements. No Credit Party nor any Subsidiary is
----------------
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
68
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party or any Subsidiary is
a party, which default has, or if not remedied within any applicable
grace period could reasonably be likely to have, a Material Adverse
Effect.
8.10 Litigation. Except as set forth in Schedule 8.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any
Subsidiary or other Credit Party or affecting the Borrower or any Subsidiary or
other Credit Party or any properties or rights of the Borrower or any Subsidiary
or other Credit Party, which could reasonably be likely to have a Material
Adverse Effect.
8.11 Margin Stock. The proceeds of the borrowings made hereunder
will be used by the Borrower only for the purposes expressly authorized herein.
None of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 221) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
8.12 Investment Company. No Credit Party is an "investment
company," or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The application
of the proceeds of the Loans and repayment thereof by the Borrower and the
performance by the Borrower and the other Credit Parties of the transactions
contemplated by the Loan Documents will not violate any provision of said Act,
or any rule, regulation or order issued by the Securities and Exchange
Commission thereunder, in each case as in effect on the date hereof.
8.13 Patents, Etc. The Borrower and each other Credit Party owns or
has the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person.
8.14 No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of
69
material fact or omits to state a material fact necessary, in light of the
circumstance under which it was made, in order to make any such warranty,
representation or statement contained therein not misleading.
8.15 No Consents, Etc. Neither the respective businesses or
properties of the Credit Parties or any Subsidiary, nor any relationship among
the Credit Parties or any Subsidiary and any other Person, nor any circumstance
in connection with the execution, delivery and performance of the Loan Documents
and the transactions contemplated hereby and thereby, is such as to require a
consent, approval or authorization of, or filing, registration or qualification
with, any Governmental Authority or any other Person on the part of any Credit
Party as a condition to the execution, delivery and performance of, or
consummation of the transactions contemplated by the Loan Documents, which, if
not obtained or effected, would be reasonably likely to have a Material Adverse
Effect, or if so, such consent, approval, authorization, filing, registration or
qualification has been duly obtained or effected, as the case may be.
8.16 Employee Benefit Plans.
----------------------
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been determined or the Borrower or its Subsidiaries is in
the process of obtaining a determination by the Internal Revenue
Service to be so qualified, each trust related to such plan has been
determined to be exempt under Section 501(a) of the Code, and each
Employee Benefit Plan subject to any Foreign Benefit Law has received
the required approvals by any Governmental Authority regulating such
Employee Benefit Plan. No material liability has been incurred by the
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes
or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
70
(c) Except as set forth on Schedule 8.16 hereto, no
Termination Event has occurred or is reasonably expected to occur with
respect to any Pension Plan or Multiemployer Plan, and neither the
Borrower nor any ERISA Affiliate has incurred any unpaid withdrawal
liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
the funding of which is regulated by any Foreign Benefit Law did not,
as of the most recent valuation date for each such plan, exceed the
then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
8.17 No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
8.18.....Environmental Laws. Except as listed on Schedule 8.18 or as
otherwise could not reasonably be expected to have a Material Adverse Effect,
the Borrower and each Subsidiary is in compliance with all applicable
Environmental Laws and has been issued and currently maintains all required
federal, state and local permits, licenses, certificates and approvals. Except
as listed on Schedule 8.18 or as otherwise could not reasonably be expected to
have a Material Adverse Effect, neither the Borrower nor any Subsidiary has been
notified of any pending or threatened action, suit, proceeding or investigation,
and neither the Borrower nor any Subsidiary is aware of any facts, which (a)
calls into question, or could reasonably be expected to call into question,
compliance by the Borrower or any Subsidiary with any Environmental Laws, (b)
seeks, or could reasonably be expected to form the basis of a meritorious
proceeding, to suspend, revoke or terminate any license, permit or approval
necessary for the operation of the Borrower's or any Subsidiary's business or
facilities or for the generation, handling, storage, treatment or disposal of
any Hazardous Materials, or (c) seeks to cause, or could reasonably be expected
to form the basis of a meritorious proceeding to cause, any property of the
Borrower or any Subsidiary or other Credit Party to be subject to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law.
71
8.19 Employment Matters.
------------------
(a) None of the employees of the Borrower or any Subsidiary is
subject to any collective bargaining agreement except as set forth on
Schedule 8.19 and there are no strikes, work stoppages, election or
decertification petitions or proceedings, unfair labor charges, equal
opportunity proceedings, or other material labor/employee related
controversies or proceedings pending or, to the best knowledge of the
Borrower, threatened against the Borrower or any Subsidiary or between
the Borrower or any Subsidiary and any of its employees, other than
employee grievances arising in the ordinary course of business which
could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance
would not have a Material Adverse Effect, the Borrower and each
Subsidiary is in compliance in all respects with all applicable laws,
rules and regulations pertaining to labor or employment matters,
including without limitation those pertaining to wages, hours,
occupational safety and taxation and there is neither pending or
threatened any litigation, administrative proceeding nor, to the
knowledge of the Borrower, any investigation, in respect of such
matters which, if decided adversely, could reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
8.20.....RICO. Neither the Borrower nor any Subsidiary is engaged in or
has engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any racketeer
influenced and corrupt organizations law, whether civil or criminal, or other
similar laws.
8.21.....Year 2000 Compliance. All computer applications (including
those affected by information received from its suppliers and vendors) that are
material to the business and operations of the Borrower and any of its
Subsidiaries are Year 2000 Compliant, except to the extent that a failure to do
so could not reasonably be expected to have Material Adverse Effect.
72
ARTICLE IX
Affirmative Covenants
---------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
9.1 Financial Reports, Etc.
----------------------
(a) As soon as practical and in any event within 90 days after
the end of each Fiscal Year of the Borrower, deliver or cause to be
delivered to the Agent and each Lender (i) consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as at
the end of such Fiscal Year, and the notes thereto, and the related
consolidated and consolidating statements of income, stockholders'
equity and cash flows, and the respective notes thereto, for such
Fiscal Year, setting forth (other than for consolidating statements)
comparative financial statements for the preceding Fiscal Year, all
prepared in accordance with GAAP applied on a Consistent Basis and
containing, with respect to the consolidated financial statements,
opinions of McGladrey & Xxxxxx LLP, or other such independent certified
public accountants selected by the Borrower and approved by the Agent,
which are unqualified as to the scope of the audit performed and as to
the "going concern" status of the Borrower and without any exception
not acceptable to the Lenders, and (ii) a Compliance Certificate as of
the end of such Fiscal Year;
(b) as soon as practical and in any event within 45 days after
the end of each fiscal quarter (except for the last fiscal quarter of
the Fiscal Year, as to which the following shall not be required to be
delivered), deliver to the Agent and each Lender (i) consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows
for such fiscal quarter and for the period from the beginning of the
then current Fiscal Year through the end of such reporting period, and
accompanied by a certificate of an Authorized Representative to the
effect that such financial statements present fairly the financial
position of the Borrower and its Subsidiaries as of the end of such
fiscal period and the results of their operations and the changes in
their financial position for such fiscal period, in conformity with the
standards set forth in Section 8.6(a) with respect to interim financial
statements, and (ii) a Compliance Certificate as of the end of such
quarter;
(c) as soon as practical and in any event within 45 days after
the end of each Fiscal Quarter deliver to the Agent and each Lender a
certificate of an Authorized Representative of the Borrower certifying
all Asset Dispositions for such Fiscal Quarter constituting Permitted
Asset Dispositions under the terms of clause (viii) of such defined
term together with evidence of application of all proceeds of each such
Permitted Asset Disposition consummated more than 180 days prior to the
end of such Fiscal Quarter;
73
(d) together with each delivery of the financial statements
required by Section 9.1(a)(i), deliver to the Agent and each Lender a
letter from the Borrower's accountants specified in Section 9.1(a)(i)
stating that in performing the audit necessary to render an opinion on
the financial statements delivered under Section 9.1(a)(i), they
obtained no knowledge of any Default or Event of Default by the
Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the
date of such statement remains uncured); or if the accountants have
obtained knowledge of such Default or Event of Default, a statement
specifying the nature and period of existence thereof;
(e) promptly upon their becoming available to the Borrower,
the Borrower shall deliver to the Agent and each Lender a copy of (i)
all regular or special reports or effective registration statements
which Borrower or any Subsidiary shall file with the Securities and
Exchange Commission (or any successor thereto) or any securities
exchange, (ii) any proxy statement distributed by the Borrower or any
Subsidiary to its shareholders, bondholders or the financial community
in general, and (iii) any management letter or other report submitted
to the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or
any Subsidiary; and
(f) not later than the last Business Day of each Fiscal Year,
deliver to the Agent and each Lender a capital and operating expense
budget and consolidated financial projections for the Borrower and its
Subsidiaries for the next Fiscal Year, prepared in accordance with GAAP
applied on a Consistent Basis;
(g) as soon as practicable and in any event within twenty-five
(25) days following the end of each fiscal month, deliver to the Agent
and each Lender (i) a Borrowing Base Certificate as of the end of such
month and an accounts receivable aging report in form and substance
acceptable to the Agent and (ii) a Compliance Certificate as of the end
of such month in form and substance acceptable to the Agent;
(h) as soon as practical and in any event within 25 days after
the end of each fiscal month, deliver to the Agent and each Lender
consolidated balance sheets of the Borrower and its Subsidiaries as at
the end of such fiscal month, and the related consolidated statements
of income, stockholders' equity and cash flows for such fiscal month
and for the period from the beginning of the then current Fiscal Year
through the end of such fiscal month all prepared by management of the
Borrower using inventory estimation, and accompanied by a certificate
of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Borrower and
its Subsidiaries as of the end of such fiscal month and the results of
their operations and the changes in their financial position for such
fiscal month; and
(i) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information regarding
Borrower's and any Subsidiary's operations, business affairs and
financial condition as the Agent or such Lender may reasonably request.
74
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any participation interest in, any Obligation permitted by this Agreement.
9.2 Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices.
9.3 Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 10.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify would not have
a Material Adverse Effect.
9.4 Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been established
unless and until any Lien resulting therefrom attaches to any of its property
and becomes enforceable against its creditors.
9.5 Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers (or on a self-insured
basis customary for companies similarly situated and in accordance with prudent
business practices) against loss or damage by fire and other hazards to the
extent and in the manner as are customarily insured against by similar
businesses owning such properties similarly situated and otherwise as required
by the Security Documents, (b) maintain general public liability insurance with
responsible insurance carriers (or self-insurance as is customary for similarly
situated companies and in accordance with prudent business practices) at all
times against liability on account of damage to persons and property and (c)
maintain insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) and against loss by reason by business interruption, each
of the foregoing policies of insurance to have such limits, deductibles,
exclusions, co-insurance and other provisions providing no less coverages than
that specified in Schedule 9.5, and such insurance policies to be in form
reasonably satisfactory to the Agent, General Collateral Agent and/or Priority
Collateral Agent.
75
9.6 True Books. Keep true books of record and account in which
full, true and correct entries will be made of all of its dealings and
transactions, and set up on its books such reserves as may be required by GAAP
with respect to doubtful accounts and all taxes, assessments, charges, levies
and claims and with respect to its business in general, and include such
reserves in interim as well as year-end financial statements.
9.7 Year 2000 Compliance. The Borrower will promptly notify the
Agent and the Lenders in the event the Borrower discovers or determines that any
computer application (including those affected by information received from its
suppliers and vendors) that is material to its or any of its Subsidiaries'
business and operations is not Year 2000 Compliant, except to the extent that
such failure could not reasonably be expected to have a Material Adverse Effect.
9.8 Right of Inspection. Permit any Person designated by any
Lender or the Agent to visit and inspect, at the Borrower's expense, any of the
properties, corporate books and financial reports of the Borrower or any
Subsidiary and to discuss its affairs, finances and accounts with its principal
officers and independent certified public accountants, all at reasonable times,
at reasonable intervals and with reasonable prior notice.
9.9 Observe all Laws. Conform to and duly observe in all material
respects all laws, including all Environmental Laws and ERISA, rules and
regulations and all other valid requirements of any Governmental Authority with
respect to the conduct of its business, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
9.10 Governmental Licenses. Obtain and maintain all licenses,
permits, certifications and approvals of all applicable Governmental Authorities
as are required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
9.11 Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 9.2 through 9.10, inclusive and
9.21.
9.12 Officer's Knowledge of Default. Upon any officer of the
Borrower obtaining knowledge of any Default or Event of Default hereunder or
under any other obligation of the Borrower or any Subsidiary or other Credit
Party to any Lender, or any event, development or occurrence which could
reasonably be expected to have a Material Adverse Effect, cause such officer or
an Authorized Representative to promptly notify the Agent of the nature thereof,
the period of existence thereof, and what action the Borrower or such Subsidiary
or other Credit Party proposes to take with respect thereto.
9.13 Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or other Credit Party, or any attachment,
levy, execution or other process being instituted against any assets of the
Borrower or any Subsidiary or other Credit Party, making a claim or claims in an
aggregate amount greater than $3,000,000, to the extent not covered by
insurance, promptly deliver to the Agent written notice thereof stating the
nature and status of such litigation, dispute, proceeding, levy, execution or
other process.
76
9.14 Notice of Environmental Complaint or Condition. Promptly
provide to the Agent true, accurate and complete copies of any and all notices,
complaints, orders, directives, claims or citations received by the Borrower or
any Subsidiary relating to any (a) material violation or alleged material
violation by the Borrower or any Subsidiary of any applicable Environmental Law;
(b) release or threatened release by the Borrower or any Subsidiary, or by any
Person handling, transporting or disposing of any Hazardous Material on behalf
of the Borrower or any Subsidiary, or at any facility or property owned or
leased or operated by the Borrower or any Subsidiary, of any Hazardous Material,
except where occurring legally pursuant to a permit or license or to the extent
such release could not have a Material Adverse Effect; or (c) material liability
or alleged material liability of the Borrower or any Subsidiary for the costs of
cleaning up, removing, remediating or responding to a release of Hazardous
Materials.
9.15 Environmental Compliance. If the Borrower or any Subsidiary
shall receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law,
has released any Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials, the
Borrower and any Subsidiary shall, within the time period permitted and to the
extent required by the applicable Environmental Law or the Governmental
Authority responsible for enforcing such Environmental Law, remove or remedy, or
cause the applicable Subsidiary to remove or remedy, such violation or release
or satisfy such liability.
9.16 Indemnification. Without limiting the generality of Section
13.9, the Borrower hereby agrees to indemnify and hold the Agent and the Lenders
and any affiliate of any Lender party to a Swap Agreement, and their respective
officers, directors, employees and agents, harmless from and against any and all
claims, losses, penalties, liabilities, damages and expenses (including
assessment and cleanup costs and reasonable attorneys', consultants' or other
expert fees, expenses and disbursements) arising directly or indirectly from,
out of or by reason of (a) the violation of any Environmental Law by the
Borrower or any Subsidiary or with respect to any property owned, operated or
leased by the Borrower or any Subsidiary or (b) the handling, storage,
transportation, treatment, emission, release, discharge or disposal of any
Hazardous Materials by or on behalf of the Borrower or any Subsidiary, or on or
with respect to property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 9.16 shall survive repayment of the
Obligations, occurrence of the Facility Termination Date and expiration or
termination of this Agreement.
9.17 Further Assurances. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement, the Security Documents and the other Loan Documents.
77
9.18 Employee Benefit Plans.
----------------------
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) the establishment of
any new Pension Plan (which notice shall include a copy of such plan),
(b) the commencement of contributions to any Employee Benefit Plan to
which the Borrower or any of its ERISA Affiliates was not previously
contributing, (c) any material increase in the benefits of any existing
Employee Benefit Plan, (d) each funding waiver request filed with
respect to any Pension Plan and all communications received or sent by
the Borrower or any ERISA Affiliate with respect to such request,
including any communications relating to the PBGC Agreement and (e) the
failure of the Borrower or any ERISA Affiliate to make a required
installment or payment under Section 302 of ERISA or Section 412 of the
Code (in the case of Employee Benefit Plans regulated by the Code or
ERISA and including any installments or payments relating to the PBGC
Agreement) or under any Foreign Benefit Law (in the case of Employee
Benefit Plans regulated by any Foreign Benefit Law) by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Agent a notice specifying the nature
thereof, what action the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to
have a trustee appointed to administer any Pension Plan, including all
correspondence associated with the PBGC Agreement, (c) each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) filed
by the Borrower or any ERISA Affiliate with the Internal Revenue
Service with respect to each Employee Benefit Plan and (d) all notices
received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA. The Borrower will notify
the Agent in writing within five (5) Business Days of the Borrower or
any ERISA Affiliate obtaining knowledge or reason to know that the
Borrower or any ERISA Affiliate has filed or intends to file a notice
of intent to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA.
9.19 Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
78
9.20 New Subsidiaries. Simultaneously with (i) the acquisition or
creation of any Material Subsidiary which is a Domestic Subsidiary, or upon any
existing Domestic Subsidiary becoming a Material Subsidiary, cause to be
delivered to the Agent each of the following and (ii) the acquisition or
creation of any Material Direct Foreign Subsidiary, cause to be delivered to the
Agent each of the items set forth in (d), (e), (f), (h) (subclauses (i), (ii),
(iii) and (v) only) and (i), below:
(a) a Facility Guaranty executed by such Subsidiary
substantially in the form of Exhibit I;
(b) a General Security Agreement of such Subsidiary
substantially in the form of Exhibit J-1, and a Priority Security
agreement substantially in the form of Exhibit J-2, together with such
Uniform Commercial Code financing statements on Form UCC-1 or otherwise
duly executed by such Subsidiary as "Debtor" and (i) naming the General
Collateral Agent for the benefit of the General Secured Parties, as
"Secured Party," and (ii) naming the Priority Collateral Agent for the
benefit of the Priority Secured Parties as "Secured Party", in each
case in form, substance and number sufficient in the reasonable opinion
of the Collateral Agents and their special counsel to be filed in all
Uniform Commercial Code filing offices in all jurisdictions in which
filing is necessary or advisable to perfect (y) the General Lien in
favor of the General Collateral Agent for the benefit of the General
Secured Parties and (z) the Priority Lien in favor of the Priority
Collateral Agent for the benefit of the Priority Secured Parties, in
each case to the extent such General Lien or Priority Lien may be
perfected by Uniform Commercial Code filing;
(c) Priority Mortgages and General Mortgages with respect to
all parcels of real property with a fair market value in excess of
$300,000 owned by such Subsidiary and with respect to any Material Real
Property or to the extent required by any law, regulation or directive
of any applicable Governmental Authority, Material Real Property
Support Documents, as applicable, and related Uniform Commercial Code
financing statements on Form UCC-1 or otherwise pertaining to fixtures;
(d) if the Subsidiary Securities issued by such Subsidiary
that are, or are required to become, Pledged Interests, shall be owned
by a Subsidiary who has not then executed and delivered to the General
Collateral Agent a Pledge Agreement granting a General Lien to the
General Collateral Agent, for the benefit of the General Secured
Parties, in such equity interests, a Pledge Agreement executed by the
Subsidiary that directly owns such Subsidiary Securities substantially
in the form attached hereto as Exhibit K (or, as to the Pledged
Interests issued by any Direct Foreign Subsidiary, in a form acceptable
to the Agent), and if such Subsidiary Securities shall be owned by the
Borrower or a Subsidiary who has previously executed a Pledge
Agreement, a Pledge Agreement Supplement in the form required by such
Pledge Agreement pertaining to such Subsidiary Securities;
(e) if the Pledged Interests issued by such Subsidiary
constitute securities under Article 8 of the Uniform Commercial Code
(i) the certificates representing such
79
Pledged Interests and (ii) duly executed, undated stock powers or other
appropriate powers of assignment in blank affixed thereto;
(f) (i) Uniform Commercial Code financing statements on form
UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming
the General Collateral Agent for the benefit of the General Secured
Parties as "Secured Party," in form, substance and number sufficient in
the reasonable opinion of the Agent and its special counsel to be filed
in all Uniform Commercial Code filing offices and in all jurisdictions
in which filing is necessary or advisable to perfect in favor of the
General Collateral Agent for the benefit of the General Secured Parties
the General Lien on such Subsidiary Securities and (ii) if the Pledged
Interests issued by such Subsidiary do not constitute securities and
such Subsidiary has not elected to have such interests treated as
securities under Article 8 of the applicable Uniform Commercial Code, a
control agreement from the Registrar of such Subsidiary, in form and
substance acceptable to the Agent and in which the Registrar (1)
acknowledges that the pledgor is at the date of such acknowledgment the
sole record, and to its knowledge, beneficial owner of such Subsidiary
Securities, (2) acknowledges the General Lien in favor of the General
Collateral Agent conferred under the Pledge Agreement and that such
General Lien will be reflected on the registry for such Subsidiary
Securities, (3) agrees that it will not register any transfer of such
Subsidiary Securities nor acknowledge any Lien in favor of any other
Person on such Subsidiary Securities, without the prior written consent
of the General Collateral Agent, in each instance, until it receives
notice from the General Collateral Agent that all General Liens on such
Collateral in favor of the General Collateral Agent for the benefit of
the General Secured Parties have been released or terminated, and (4)
agrees that upon receipt of notice from the Agent or the General
Collateral Agent that an Event of Default has occurred and is
continuing and that the Subsidiary Securities identified in such notice
have been transferred to a transferee identified in such notice, it
will duly record such transfer of Subsidiary Securities on the
appropriate registry without requiring further consent from the pledgor
and shall thereafter treat the transferee as the sole record and
beneficial owner of such Subsidiary Securities pending further
transfer, notwithstanding any contrary instruction received from the
pledgor;
(g) a supplement to the appropriate schedule attached to the
appropriate Security Documents listing the additional Collateral,
certified as true, correct and complete by the Authorized
Representative (provided that the failure to deliver such supplement
shall not impair the rights conferred under the Security Documents in
after acquired Collateral);
(h) an opinion or opinions of counsel to the Subsidiary
(including local counsel in each jurisdiction where Mortgaged Property
is located) dated as of the date of delivery of the Facility Guaranty
and other Loan Documents provided for in this Section 9.20 and
addressed to the Collateral Agents, in form and substance reasonably
acceptable to the Collateral Agents (which opinion may include
assumptions and qualifications of similar effect to those contained in
the opinions of counsel delivered pursuant to Section 7.1(a)), to the
effect that:
80
(i) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then
conducted and proposed to be conducted and to execute, deliver
and perform the Facility Guaranty and other Loan Documents
described in this Section 9.20 to which such Subsidiary is a
signatory, and is duly qualified to transact business and is
in good standing as a foreign corporation or partnership in
each other jurisdiction in which the character of the
properties owned or leased, or the business carried on by it,
requires such qualification and the failure to be so qualified
would reasonably be likely to result in a Material Adverse
Effect;
(ii) the execution, delivery and performance of the
Facility Guaranty and other Loan Documents described in this
Section 9.20 to which such Subsidiary is a signatory have been
duly authorized by all requisite corporate or partnership
action (including any required shareholder or partner
approval), each of such agreements has been duly executed and
delivered and constitutes the valid and binding agreement of
such Subsidiary, enforceable against such Subsidiary in
accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general
principles of equity (whether considered in a proceeding at
law or in equity);
(iii) the Subsidiary Securities of such Subsidiary
are duly authorized, validly issued, fully paid and
nonassessable, and free of any preemptive rights, and the
applicable General Security Instrument (including foreign
collateral documents) is effective to create a valid security
interest in favor of the General Collateral Agent for the
benefit of the General Secured Parties in such Subsidiary
Securities as constitute Pledged Interests;
(iv) (A) the Uniform Commercial Code financing
statements on Form UCC-1 delivered to the General Collateral
Agent by the Subsidiary in connection with the delivery of the
General Security Instruments of such Subsidiary have been duly
executed by the Subsidiary and are in form, substance and
number sufficient for filing in all Uniform Commercial Code
filing offices in all jurisdictions in which filing is
necessary to perfect in favor of the General Collateral Agent
for the benefit of the General Secured Parties the General
Lien on General Collateral conferred under such General
Security Instruments to the extent such General Lien may be
perfected by Uniform Commercial Code filing;
(B) the Uniform Commercial Code financing
statements on Form UCC-1 delivered to the Priority Collateral
Agent by the Subsidiary in connection with the delivery of the
Priority Security Instruments of such Subsidiary have been
duly executed by the Subsidiary and are in form, substance and
number sufficient for filing in all Uniform Commercial Code
filing offices in all jurisdictions in which filing is
necessary to perfect in favor of the Priority Collateral Agent
for the benefit of the Priority Secured Parties the Priority
Lien on Priority Collateral conferred under such Priority
Security Instruments to the extent such Priority Lien may be
perfected by Uniform Commercial Code filing;
81
(v) in the case of Direct Foreign Subsidiaries only,
that under the laws of the applicable foreign jurisdiction,
all agreements, notices and other documents that are required
to be executed, delivered, filed or recorded and all other
action required to be taken, within or pursuant to the laws of
such jurisdiction to perfect the General Lien conferred in
favor of the General Collateral Agent under the applicable
General Security Instrument as against creditors of and
purchasers for value from the holder of the Pledged Interests
has been duly executed, delivered, filed, recorded or taken,
as the case may be;
(vi) each Mortgage is in appropriate form for due
recordation and upon recordation shall constitute a valid and
effective, fully perfected Priority Lien and General Lien, as
applicable, on the real property and fixtures described
therein; and
(i) current copies of the Organizational Documents and
Operating Documents of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such Organizational Documents, Operating Documents or
applicable law, of the shareholders, members or partners) of such
Subsidiary authorizing the actions and the execution and delivery of
documents described in this Section 9.20.
9.21 Controlled Accounts. Cause at all times all of its depository
accounts, other than Excluded Deposit Accounts, to be held by and maintained
with the Agent or any Lender.
9.22 Third-party Consultant. Pay all fees and expenses of a
third-party business consultant to be hired on or before February 15, 2000 in a
manner acceptable to the Agent on behalf of the Lenders, the Senior Lease
Creditor and Prudential, such consultant to be mutually acceptable to the
Borrower, Agent and Lenders, to report to and be available for meetings with the
Lenders, the Agent, the Senior Lease Creditor and Prudential and to have a scope
of duties and cost structure to be agreed upon. Copies of any consultant reports
will be delivered to the Borrower. In the event such consultant shall cease to
be acceptable to the Agent and the Lenders or shall not be available for
meetings or shall not deliver copies of such consultant reports as a result of
its employment by or client relationship with Prudential, the Borrower agrees to
pay all fees and expenses of an additional independent third-party consultant to
be hired thereafter by the Agent on behalf of the Lenders and to have a scope of
duties and cost structure to be agreed upon.
9.23 Post-Closing Deliveries. Deliver to the Agent within the time
periods indicated the following documents in form and substance satisfactory to
the Agent and the Lenders:
(a) within ninety (90) days of the Closing Date, the following
Material Real Property Support Documents relating to each Mortgaged
Property set forth on Schedule 5.4 hereto (other than the Comfort Sleep
property) to the extent not delivered at the Closing Date:
82
(i) commitments for Title Policies with such
endorsements as may be requested by the Agent;
(ii) copies of title exceptions with respect to the
Mortgaged Property, acceptable in form and substance to the
Agent;
(iii) Phase I environmental reports with respect to
the Mortgaged Property, acceptable in form, scope, detail,
analysis, and results to the Agent;
(iv) current surveys of the Mortgaged Property and
surveyor's affidavits;
(v) appraisals of the Mortgaged Property and all
machinery and equipment constituting Collateral;
(vi) Borrower's affidavit for the Mortgaged Property;
(b) Within thirty (30) days of the Closing Date, the
following to the extent not delivered at the Closing Date:
(i) stock certificates and stock registry forms, as
required by and acceptable in detail to the Agent, including
any schedules affected thereby;
(ii) Account Control Agreements together with
attached copies of account statements and customer-commodities
intermediary account agreements;
(iii) third party consent of CIPCO S.C., Inc. and
Prospin Industries, Inc. to assignment of any rights under
their respective License Agreements with the Borrower; and
(iv) third party consent of Xxxxxx, Xxxxxxx & Co.,
Inc. to assignment of any rights under its License Agreement
with the Borrower, subject to the Borrower's exercise of its
best efforts.
(c) Within five (5) business days of the Closing
Date, the following to the extent not delivered at Closing
Date:
(i) all original schedules to this Agreement and any
other Loan Document, revised and completed; and
(ii) executed originals of the Compliance
Certificate, Initial Borrowing Notice, Interest Rate Selection
Notice, Certificate of Borrowing Base and any other
certificates required under this Agreement.
83
ARTICLE X
Negative Covenants
------------------
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
10.1 Financial Covenants.
-------------------
(a) Consolidated Net Worth. Permit Consolidated Net Worth to
be less than (i) $145,000,000 from the Closing Date until (but
excluding) the last day of the fiscal quarter that includes the Closing
Date (the "Closing Date Quarter"), and (ii) as at the last day of each
fiscal quarter of the Borrower commencing with the Closing Date Quarter
and until (but excluding) the last day of the next following fiscal
quarter of the Borrower, the sum of (A) the amount of Consolidated Net
Worth required to be maintained pursuant to this Section 10.1(a) as at
the end of the immediately preceding fiscal quarter (or, in the case of
the Closing Date Quarter, required to be maintained as of the Closing
Date), plus (B) 100% of the aggregate amount of all increases in the
stated capital and additional paid-in capital accounts of the Borrower
resulting from the issuance of equity securities or other capital
investments.
(b) Consolidated Leverage Ratio. Permit as of the end of each
Four-Quarter Period set forth below the Consolidated Leverage Ratio to
be more than that set forth opposite each such period:
Period Leverage Ratio
Must Not Exceed
---------------------------- -----------------------------
Four Quarter Period ended
January 2, 2000 13.05 to 1.00
Four Quarter Period ending
April 2, 2000 10.25 to 1.00
Four Quarter Period ending
July 2, 2000 9.50 to 1.00
(c) Consolidated Interest Coverage Ratio. Permit as of the end
of each month for the Twelve-Month Periods set forth below the
Consolidated Interest Coverage Ratio to be less than that set forth
opposite each such period:
84
Interest Coverage Ratio
Period Must Exceed
---------------------------- --------------------------------
Twelve Month Period ended
January 2, 2000 1.00 to 1.00
Twelve Month Period ending
April 2, 2000 1.35 to 1.00
Twelve Month Period
ending July 2, 2000 1.40 to 1.00
(d) Consolidated EBITDA. Permit Consolidated EBITDA for each
period set forth below to be less than the amount set forth opposite
such period:
Period Ending Consolidated EBITDA Must Exceed
---------------------------- --------------------------------
Fiscal Quarter ended
January 2, 2000 $2,000,000
Fiscal Quarter ending
April 2, 2000 $8,550,000
Two Fiscal Quarters ending
July 2, 2000 $20,450,000
10.2 Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition; provided however, the Borrower may (a)
consummate the Parras Cone Acquisition and (b) enter into such agreements and
take other actions to effect any Acquisition other than the Parras Cone
Acquisition to the extent the Cost of Acquisition with respect thereto when
aggregated with the Cost of Acquisition of all other Acquisitions other than the
Parras Cone Acquisition and all loans, advances and investments permitted under
Section 10.7(h) (including any such investment to finance the Parras Cone
Acquisition) does not exceed $500,000.
10.3 Capital Expenditures.
--------------------
(a) Make or become committed to make U.S. Capital Expenditures
which exceed in the aggregate in any Fiscal Year of the Borrower
described below (on a noncumulative basis, with the effect that amounts
not expended in any Fiscal Year may not be carried forward to a
subsequent period), the amount set forth opposite each such period:
85
Capital Expenditures
Period Not to Exceed
--------------------------------------- -----------------------
Fiscal Year ended January 2, 2000 $13,500,000
January 3, 2000 through and including $8,000,000
Facility Termination Date
(b) Make or become committed to make Mexican Capital
Expenditures from the Closing Date until the Facility Termination Date
except to the extent an Event of Default has not occurred and is
continuing, for Capital Expenditures in an aggregate amount not in
excess of $1,000,000 for the purpose of purchasing certain real
property in Altamira, Mexico and making certain improvements thereto to
the extent such improvements have been contractually agreed to with
third parties prior to the Closing Date.
10.4 Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than the
following (collectively, "Permitted Liens"):
(a) Liens on the General Collateral and the Priority
Collateral created under the General Security Instruments and the
Priority Security Instruments in favor of the General Collateral Agent
or the Priority Collateral Agent, as applicable;
(b) Liens on Receivables (as defined in and transferred by an
Originator in accordance with the Receivables Transfer Agreement) and
Returned Goods (as defined in the Securitization Intercreditor
Agreement) in favor of General Electric Capital Corporation, as
collateral agent under the Receivables Purchase Agreement including,
but not limited to, either (i) Liens securing an increase in the
Securitization Outstandings under the Receivables Purchase Agreement
from $50,000,000 to $60,000,000 or (ii) Liens securing an additional
factoring or securitization of receivables in an aggregate amount not
to exceed $10,000,000;
(c) Liens existing on the date hereof, other than as referred
to in clauses (a) and (b) above, and set forth on Schedule 8.7;
(d) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, which, except as expressly so specified on Schedule 8.7, are
inferior in respect of the Collateral to the Liens conferred under the
Security Documents, and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable by such creditors against
other creditors;
86
(e) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other similar Liens imposed by
law or created in the ordinary course of business and in existence less
than 90 days from the date of creation thereof for amounts not yet due
or which are being contested in good faith by appropriate proceedings
diligently conducted, which, except as expressly so specified on
Schedule 8.7, are inferior in respect of the Collateral to the Liens
conferred under the Security Documents, and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP and which Liens are not yet enforceable by such
creditors against other creditors;
(f) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(g) with respect to all real property to which (h) below does
not apply, easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(h) with respect to Mortgaged Real Property for which a Title
Policy is required to be issued pursuant to the terms hereof, matters
acceptable to the Agent appearing as exceptions to coverage on the
Title Policies;
(i) purchase money Liens to secure Indebtedness permitted
under Section 10.5(d) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% and not more than 95% of
the purchase price of such assets as of the date of purchase thereof
and no property other than the assets so purchased secures such
Indebtedness;
(j) Liens arising in connection with Capital Leases permitted
under Section 10.5(f); provided that no such Lien shall extend to any
Collateral or to any other property other than the assets subject to
such Capital Leases; and
(k) Liens on assets of Parras Cone to secure Indebtedness
permitted under Section 10.5(i).
10.5 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in Schedule 8.6; provided, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended,
supplemented or restated after the Closing Date to change any terms of
subordination, repayment or rights of enforcement, conversion, put or
exchange rights to be materially less favorable to the Agent or the
Lenders than the terms and rights as in effect on the Closing Date;
87
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) purchase money Indebtedness (other than the Parras Cone
Debt) described in Section 10.4(i) not to exceed an aggregate
outstanding principal amount at any time of $10,000,000;
(e) Indebtedness arising from Rate Hedging Obligations
permitted under Section 10.15;
(f) obligations under Capital Leases not to exceed an
aggregate principal amount at any time in excess of $5,000,000;
(g) unsecured intercompany Indebtedness for loans and advances
made by the Borrower or any Guarantor to the Borrower or any Guarantor,
any such Indebtedness of the Borrower owing to any Guarantor shall be
subordinate to payment of the Obligations hereunder at all times in
accordance with the terms of the Facility Guaranty;
(h) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (g) above, provided that the
aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (h) shall in no event exceed $10,000,000 at
any time;
(j) the Parras Cone Debt;
(k) Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, Indebtedness incurred
under clauses (a), (b), (g), (h) and (i) of this Section 10.5, provided
that the terms of any such extension, renewal, refunding or refinancing
Indebtedness (and of any agreement or instrument entered into in
connection therewith) shall not change any terms of subordination,
repayment or rights of enforcement, conversion, put or exchange rights
to be materially less favorable to the Agent and the Lenders than the
terms of the Indebtedness as in effect prior to such action, and
provided further that (1) the aggregate principal amount of such
extended, renewed, refunded or refinanced Indebtedness shall not be
increased by such action, (2) the group of direct or contingent
obligors on such Indebtedness shall not be expanded as a result of any
such action, and (3) immediately before and immediately after giving
effect to any such extension, renewal, refunding or refinancing, no
Default or Event of Default shall have occurred and be continuing; and
88
(l) Securitization Outstandings or Indebtedness described in
and secured by Liens permitted under Section 10.4(b)(ii).
10.6 Transfer of Assets. Conduct, permit, or suffer, or agree to
conduct or permit, or acquiesce in, any Asset Disposition other than Permitted
Asset Dispositions.
10.7 Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may make or maintain:
(a) investments in securities of any Person acquired in
an Acquisition permitted hereunder;
(b) investments in Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in Schedule 8.4;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss; and
(e) investments in (i) Guarantors and (ii) Cone Receivables II
LLC in connection with the Securitization Transaction;
(f) loans between the Borrower and the Guarantors described in
Section 10.5(g);
(g) investments made at such time as no Event of Default shall
have occurred and be continuing relating to the site in Altamira,
Mexico (at which site the Borrower intends to construct a denim
manufacturing facility), not in excess of the amounts set forth below
for the periods indicated (but in no event shall such facility
construction be commenced prior to the Facility Termination Date);
provided that any amount not invested during the period indicated may
be carried forward and invested in any following period.
Mexico Investments
Period: Not to Exceed:
------
------------------
First Fiscal Quarter of 2000 $2,195,000
Second Fiscal Quarter 2000 $2,577,500
August 1, 2000 through the Facility
Termination Date $ 955,300
89
(h) other loans, advances and investments (including
investments to finance the Parras Cone Acquisition) in an aggregate
principal amount at any time outstanding which, when aggregated with
the aggregate Costs of Acquisition for all Acquisitions (other than the
Parras Cone Debt in the case of the Parras Cone Acquisition) agreed to
or consummated after the Closing Date permitted under Section 10.2(b),
does not exceed $500,000.
10.8 Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of all or a substantial part of its
assets (other than Permitted Asset Dispositions); provided, however, any
Subsidiary of the Borrower may merge or transfer all or substantially all of its
assets into or consolidate with the Borrower (with the Borrower as the survivor)
or any Guarantor, provided further, that any resulting or surviving entity shall
execute and deliver such agreements and other documents, including a Facility
Guaranty, and take such other action as the Agent may require to evidence or
confirm its express assumption of the obligations and liabilities of its
predecessor entities under the Loan Documents.
10.9 Restricted Payments. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing.
10.10 Transactions with Affiliates. Other than transactions permitted
under Sections 10.7 and 10.8 or as set forth on Schedule 10.10, enter into any
transaction after the Closing Date, including, without limitation, the purchase,
sale, lease or exchange of property, real or personal, or the rendering of any
service, with any Affiliate of the Borrower, except (a) that such Persons may
render services to the Borrower or its Subsidiaries for compensation at the same
rates generally paid by Persons engaged in the same or similar businesses for
the same or similar services, (b) that the Borrower or any Subsidiary may render
services to such Persons for compensation at the same rates generally charged by
the Borrower or such Subsidiary and (c) in either case in the ordinary course of
business and pursuant to the reasonable requirements of the Borrower's (or any
Subsidiary's) business consistent with past practice of the Borrower and its
Subsidiaries and upon fair and reasonable terms no less favorable to the
Borrower (or any Subsidiary) than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate.
10.11 Compliance with ERISA, the Code and Foreign Benefit Laws. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of (i) any Termination Event which
would result in a material liability on the part of the Borrower or any
ERISA Affiliate to the PBGC or to any Governmental Authority, (ii) any
action that violates the Borrower's material obligations under the PBGC
Agreement, except those that are waived by the PBGC; or
(b) except for amounts defined as "Unfunded Benefit Liability"
in the PBGC Agreement, permit the present value of all accumulated
benefit obligations under all Pension Plans to exceed the current value
of the assets of such Pension Plans allocable to such benefit
liabilities; or
90
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived, except for the "Unfunded Benefit
Liability" as defined in the PBGC Agreement; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan which annual liability or increase, individually or together with
all similar liabilities and increases, is in excess of $1,000,000; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
10.12 Fiscal Year. Change its Fiscal Year.
10.13 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 10.8.
10.14 Limitations on Sales and Leasebacks. Other than sale and
leaseback transactions in the ordinary course of business having an aggregate
value not in excess of $250,000 in any Fiscal Year and except as set forth on
Schedule 10.14, enter into any arrangement or arrangements with any Person
providing for the leasing by the Borrower or any Subsidiary of real or personal
property, whether now owned or hereafter acquired in a single transaction or
series of related transactions, which has been or is to be sold or transferred
by the Borrower or any Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of such
property or rental obligations of the Borrower or any Subsidiary.
91
10.15 Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except pursuant to Swap Agreements, in an aggregate
notional amount not to exceed at any time 50% of the Total Revolving Credit
Commitment, which create Rate Hedging Obligations incurred to limit risks of
currency or interest rate fluctuations to which the Borrower and its
Subsidiaries are otherwise subject by virtue of the operations of their
businesses, and not for speculative purposes.
10.16 Negative Pledge Clauses. Except (i) as may exist on the Closing
Date pursuant to any Senior Credit Documents or any Securitization Transaction
documents or (ii) in connection with any refinancing of the foregoing, enter
into or cause, suffer or permit to exist any agreement with any Person other
than the Agent and the Lenders pursuant to this Agreement or any other Loan
Documents which prohibits or limits the ability of any of the Borrower or any
Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, provided
that the Borrower and any Subsidiary may enter into such an agreement in
connection with, and that applies only to, property acquired with the proceeds
of purchase money Indebtedness permitted hereunder.
10.17 Compensation; Reimbursement of Expenses.
(a) Pay any salary, fees, and other direct and indirect
remuneration and compensation to any of its directors and executive
officers in an amount in excess of those amounts paid to directors and
executive officers of comparable companies engaged in the same general
type of business and in similar financial condition;
(b) Reimburse any stockholder, officer, director, employee or
agent of the Borrower or any Subsidiary for any expenses incurred by
such Person other than reasonable expenses incurred for or on behalf of
the Borrower or any Subsidiary in the ordinary course of business.
10.18 Change in Accountants. Change its independent public accountants.
10.19 Prepayments, Etc. of Indebtedness. Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Indebtedness (other than the Obligations)
other than in connection with any refinancing permitted under Section
10.5(j).
10.20 Partnerships. Become a general partner in any general or
limited partnership.
92
ARTICLE XI
Events of Default and Acceleration
----------------------------------
11.1 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III or Article IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent on the date on which the same shall be due and
payable and such default shall continue for a period of two or more
days; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 9.8, 9.12, 9.13, 9.20, 9.21 or
Article X;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Agent
or an officer of the Borrower becomes aware of such default, or if a
default shall be made in the performance or observance of, or shall
occur under any covenant, agreement or provision contained in any of
the other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than as expressly provided for hereunder or thereunder or
with the express written consent of the Agent), or if without the
written consent of the Lenders, this Agreement or any other Loan
Document or either of the Collateral Agency Agreements or any of the
Intercreditor Agreements shall be disaffirmed or shall terminate, be
terminable or be terminated or become void or unenforceable for any
reason whatsoever (other than as expressly provided for hereunder or
thereunder or with the express written consent of the Agent), or if the
Lien created by any of the Security Documents shall at any time fail to
constitute a valid and perfected Lien on any material portion of the
Collateral purported to be secured thereby, subject to no prior or
equal Lien except Permitted Liens and, with respect only to General
Collateral, the Priority Liens, or the Borrower or any other Credit
Party shall so assert in writing; or
93
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness or Rate Hedging Obligation (other than the
Loans and other Obligations) of the Borrower or any Subsidiary in an
amount not less than $500,000 in the aggregate outstanding, or (ii) a
default, which is not waived, in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness or Rate
Hedging Obligation may have been issued, created, assumed, guaranteed
or secured by the Borrower or any Subsidiary, or (iii) any other event
of default as specified in any agreement or instrument under or
pursuant to which any such Indebtedness or Rate Hedging Obligation may
have been issued, created, assumed, guaranteed or secured by the
Borrower or any Subsidiary, and such default or event of default
referred to in clauses (i), (ii) and (iii) above shall continue for
more than the period of grace, if any, therein specified, or such
default or event of default shall permit the holder of any such
Indebtedness (or any agent or trustee acting on behalf of one or more
holders) to accelerate the maturity thereof or to commence any remedy
in respect thereof ; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any Subsidiary or other Credit Party
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of debtors,
a court of competent jurisdiction shall assume custody or control of
the Borrower or any Subsidiary or other Credit Party or of the whole or
any substantial part of its properties, which control is not
relinquished within sixty (60) days; or if there is commenced against
the Borrower or any Subsidiary or other Credit Party any proceeding or
petition seeking reorganization, arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute of
the United States of America or any state which proceeding or petition
remains undismissed for a period of sixty (60) days; or if the Borrower
or any Subsidiary or other Credit Party takes any action to indicate
its consent to or approval of any such proceeding or petition; or
94
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $2,500,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $5,000,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days; or
(k) if the Borrower or any Subsidiary shall breach any of the
material terms or conditions of any agreement under which any Rate
Hedging Obligations permitted hereby is created and such breach shall
continue beyond any grace period, if any, relating thereto pursuant to
the terms of such agreement, or if the Borrower or any Subsidiary shall
disaffirm or seek to disaffirm any such agreement or any of its
obligations thereunder; or
(l) if any Material Supply Agreement shall be terminated,
canceled or not renewed, or any notice of the foregoing shall be given
by any other party thereto, or a default shall occur under such
agreement and continue beyond the grace or cure period, if any,
applicable thereto; or
(m) if there shall occur any Change in Control; or
(n) if there shall occur any Termination Event as defined in
the Receivables Purchase Agreement; or
(o) if there shall occur any Event of Default as defined in
the Senior Note Agreement;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: (i)
the Agent may, and at the direction of the Required Lenders shall,
declare any obligation of the Lenders and the Issuing Bank to make
further Revolving Loans or to issue additional Letters of
95
Credit terminated, whereupon the obligation of each Lender to make
further Revolving Loans, and of the Issuing Bank to issue additional
Letters of Credit, hereunder shall terminate immediately, and (ii) the
Agent shall at the direction of the Required Lenders, at their option,
declare by notice to the Borrower any or all of the Obligations to be
immediately due and payable, and the same, including all interest
accrued thereon and all other obligations of the Borrower to the Agent
and the Lenders, shall forthwith become immediately due and payable
without presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything contained
herein or in any instrument evidencing the Obligations to the contrary
notwithstanding; provided, however, that notwithstanding the above, if
there shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lenders to make Revolving Loans, and of the
Issuing Bank to issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be immediately due
and payable without the necessity of any action by the Agent or the
Required Lenders or notice to the Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or the
Required Lenders, deposit cash with the Agent in an amount equal to the
amount of any Letter of Credit Outstandings, as collateral security for
the repayment of any future drawings or payments under such Letters of
Credit, and such amounts shall be held by the Agent pursuant to the
terms of a cash collateral agreement acceptable to the Agent; and
(C) the Agent and each of the Lenders shall have all of the
rights and remedies available under the Loan Documents or under any
applicable law.
11.2 Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, subject to the provisions of Article XII, the
Agent may, and at the direction of the Required Lenders shall, proceed to
protect and enforce their rights and remedies contained herein or in any other
Loan Document, or as may be otherwise available at law or in equity.
11.3 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
11.4 No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
11.5 Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article XI hereof, all payments received by the Agent pursuant to the terms of
the Intercreditor Agreements, in respect of any principal of or interest on the
Obligations or any other amounts payable by the Borrower hereunder, shall be
applied by the Agent in the following order:
96
(a) the reasonable expenses incurred in connection with
retaking, holding, preserving, processing, maintaining or preparing for
sale, lease or other disposition of, any Collateral, including
reasonable attorney's fees and legal expenses pertaining thereto;
(b) amounts due to the Lenders and the Issuing Bank pursuant
to Sections 4.6(a), 4.6(b), 4.6(c) and 13.5;
(c) amounts due to the Agent pursuant to Section 4.6(d);
(d) payments of interest on Revolving Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(e) payments of principal of Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(f) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 11.1(B);
(g) amounts due to the Issuing Bank, the Agent and the Lenders
pursuant to Sections 3.2(h), 9.16 and 13.9;
(h) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders; and
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
97
ARTICLE XII
The Agent
---------
12.1 Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 12.5 and
the first sentence of Section 12.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents and
shall not be a trustee or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
by any Credit Party in or in connection with any Loan Document or any
certificate or other document referred to or provided for in, or
received by any of them under, any Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability, or sufficiency of
any Loan Document, or any other document referred to or provided for
therein or for any failure by any Credit Party or any other Person to
perform any of its obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document (except as
directed by the Required Lenders in accordance with the terms of the
Loan Documents); and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
98
12.2 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Credit Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 13.1 hereof. As to any matters not expressly provided for by this
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to any
Loan Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
12.3 Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender 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
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 12.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
12.4 Rights as Lender. With respect to its Revolving Credit Commitment
and the Loans made by it and Letters of Credit issued by it, Bank of America
(and any successor acting as Agent) in its capacity as a Lender hereunder shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not acting as the Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity. Bank of America (and any successor acting as Agent) and
its affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any
Credit Party or any of its Subsidiaries or affiliates as if it were not acting
as Agent, and Bank of America (and any successor acting as Agent) and its
affiliates may accept fees and other consideration from any Credit Party or any
of its Subsidiaries or affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
12.5 Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under Section 13.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including reasonable attorneys' fees), or disbursements of any kind
and nature whatsoever that may be imposed on, incurred by or asserted (including
by any Lender) against the Agent in any way relating to or arising out of any
Loan Document or the transactions contemplated thereby or any action taken or
omitted by the Agent under any Loan Document; provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs or expenses payable by the
Borrower under Section 13.5, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. The agreements contained
in this Section 12.5 shall survive payment in full of the Loans and all other
amounts payable under this Agreement.
99
12.6 Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
12.7 Resignation of Agent. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article XII shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
100
ARTICLE XIII
Miscellaneous
-------------
13.1 Assignments and Participations.
------------------------------
(a) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Loans, its Note
and its Revolving Credit Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 or an
integral multiple of $5,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Agreement and the Notes (except that
any assignment by Bank of America shall not include its
rights, benefits or duties as the Issuing Bank);
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit B hereto, together with any
Note subject to such assignment and a processing fee of
$3,500; and
(v) the Eligible Assignee shall execute and deliver
to the Collateral Agents a supplement to the Intercreditor
Agreement in form and substance acceptable to the Collateral
Agents; and
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, the Agent and the
Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 6.6.
101
(b) The Agent shall maintain at its address referred to in
Section 13.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Revolving Credit Commitments of, and
principal amount of the Loans owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or its Loans); provided, however, that (i)
such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection provisions
contained in Article VI and the right of set-off contained in Section
13.3, and (iv) the Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to its Loans
and its Note and to approve any amendment, modification, or waiver of
any provision of this Agreement (other than amendments, modifications,
or waivers decreasing the amount of principal of or the rate at which
interest is payable on such Loans or Note, extending any scheduled
principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants) to the extent such recipients agree to be
bound by the terms of Section 13.16.
102
(g) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in the
Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Agent, the Lenders, or any of them. The
Borrower may not assign or otherwise transfer to any other Person any
right, power, benefit, or privilege (or any interest therein) conferred
hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or
liability arising hereunder or under any of the other Loan Documents,
and any such purported assignment, delegation or other transfer shall
be void.
13.2 Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
Cone Xxxxx Corporation
0000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxx, Treasurer
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Cone Xxxxx Corporation
0000 Xxxxx Xxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
103
(b) if to the Agent:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-03
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, XX-0000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set forth on
the signature page of the Facility Guaranty or Security Document
executed by such Credit Party, as the case may be.
13.3 Right of Set-off; Adjustments.
-----------------------------
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its
affiliates) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under
this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this
Section 13.3 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
104
(b) If any Lender (a "benefited Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or
interest thereon, such benefited Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefited Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefited
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this Section 13.3 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
13.4 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment hereunder or the Borrower has continuing obligations
hereunder unless otherwise provided herein.
13.5 Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agent and the Lenders in connection with the preparation,
execution and delivery of this Agreement, the other Loan Documents, and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Agent and each of the Lenders
with respect thereto and with respect to advising the Agent and the Lenders as
to their rights and responsibilities under the Loan Documents. The Borrower also
agrees to pay on demand all costs and expenses of the Agent in connection with
the syndication and administration and any modification or amendment of this
Agreement, the other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
counsel for the Agent. The Borrower further agrees to pay on demand all costs
and expenses of the Agent and the Lenders, if any (including, without
limitation, reasonable attorneys' fees and expenses and the cost of internal
counsel), in connection with the enforcement (whether through negotiations,
legal proceedings, or otherwise) of the Loan Documents and the other documents
to be delivered hereunder.
13.6 Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than the Credit Agreement) the Agent on behalf of the Required
Lenders (and, if Article XII or 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 Lenders, (i) increase the Revolving Credit Commitments of the
Lenders or the Total Revolving Credit Commitment, (ii) reduce the principal of
or rate of interest on any Loan or any fees or other amounts payable hereunder,
(iii) postpone any date fixed for the payment of any scheduled installment of
principal of or interest on any Loan or any fees or other amounts payable
hereunder or for termination of any Revolving Credit Commitment, or (iv) change
the percentage of the Revolving Credit Commitment or of the unpaid principal
amount of the Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action under this Section 13.6 or any other
provision of this Agreement or (v) release any Guarantor or all or any material
portion of the Collateral except as otherwise permitted by the Loan Documents or
(vi) increase the amount of the Overadvance Basket or change any term relating
thereto or (vii) modify the calculation of the Borrowing Base; and provided,
further, that no such amendment or waiver that affects the rights, privileges or
obligations of the Issuing Bank as issuer of Letters of Credit, shall be
effective unless signed in writing by the Issuing Bank. Notwithstanding the
foregoing, each amendment, modification, supplement or restatement of any Loan
Document shall also comply with the terms of Section 5.11 of the Intercreditor
Agreement.
105
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
13.7 Counterparts; Facsimile Signatures. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such fully-executed
counterpart. Signatures on communications and other documents may be transmitted
by facsimile only with the consent of the Agent in its sole and absolute
discretion in each instance. The effectiveness of any such signatures accepted
by the Agent shall, subject to applicable law, have the same force and effect as
manual signatures and shall be binding on all parties. The Agent may also
require that any such signature be confirmed by a manually-signed hard copy
thereof. Each party hereto hereby adopts as an original executed signature page
each signature page hereafter furnished by such party to the Agent (or an agent
of the Agent) bearing (with the consent of the Agent) a facsimile signature by
or on behalf of such party. Nothing contained in this Section shall limit the
provisions of Section 12.2.
13.8 Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower has furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Agent or such Lender harmless for, the amount of such payment surrendered
until the Agent or such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent or the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
106
13.9 Indemnification; Limitation of Liability.
----------------------------------------
(a) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their respective affiliates and their
respective officers, directors, employees, agents, and advisors (each,
an "Indemnified Party") from and against any and all claims, damages,
losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees (including the reasonably
documented allocated cost of internal counsel) and settlement costs)
that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason
of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Revolving Credit Facility, the Loan
Documents, any of the transactions contemplated herein or therein or
the actual or proposed use of the proceeds of the Loans, except to the
extent such claim, damage, loss, liability, cost, or expense is found
in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section
13.9 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any
other Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated.
The foregoing provisions of this Section 13.9(a) shall be in addition
to any right that an Indemnified Party shall have at common law or
otherwise. No Indemnified Party shall be liable for any damages arising
from the use by others of information or other materials obtained
through internet, Intralinks or other similar information transmission
systems in connection with the Loan Documents, except to the extent
that such liability is found in a final non-appealable judgment by a
court of competent jurisdiction to have directly resulted from such
Indemnified Party's gross negligence or willful misconduct. The
Borrower agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to it,
any of its Subsidiaries, any Guarantor, or any security holders or
creditors thereof arising out of, related to or in connection with the
transactions contemplated herein and in the other Loan Documents,
except to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to have
directly resulted from such Indemnified Party's gross negligence or
willful misconduct. The Borrower agrees not to assert any claim against
the Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and
advisers, on any theory of liability, for special, indirect,
consequential, or punitive damages arising out of or otherwise relating
to the Loan Documents, any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of the Loans.
107
(b) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 13.9 shall survive the payment in
full of the Loans and all other amounts payable under this Agreement.
13.10 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
13.11 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter and
joint investor letter, both dated as of January 14, 2000, executed by Bank of
America and BAS and accepted by the Borrower, survive the closing of the
Revolving Credit Facility and Letter of Credit Facility, shall survive and
continue in effect).
13.12 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts directly with any express term of
this Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
13.13 Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
108
13.14 Payments. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, recoupment, deduction or counterclaim. Subject to the
definition of "Interest Period" herein, whenever any payment under this
Agreement or any other Loan Document shall be stated to be due on a day that is
not a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time in such case shall be included in the
computation of interest and fees, as applicable, and as the case may be.
13.15 Fees. The Borrower agrees to pay to the General Collateral Agent,
for its individual account, an annual agent's fee in such amount as shall be
agreed to from time to time by the Borrower and the General Collateral Agent,
not to exceed the fee customarily charged by the General Collateral Agent in
similar transactions, such fee to be deemed and agreed by the Borrower to be
earned upon payment and to be paid in one installment in advance on the date of
this Agreement and on each anniversary date hereof with respect to the period
commencing on the date hereof and continuing until the General Collateral Agent
resigns or is removed as General Collateral Agent hereunder or the occurrence of
the Termination Date, whichever shall first occur.
109
13.16 Confidentiality. The Agent and each Lender (each, a "Lending
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement; provided that nothing herein
shall prevent any Lending Party from disclosing such information (a) to any
other Lending Party or any affiliate of any Lending Party, or any officer,
director, employee, agent, or advisor of any Lending Party or affiliate of any
Lending Party whom it determines has a reasonable need to be furnished such
information and who agrees to be bound by the terms of this Section 13.16, (b)
to any other Person who agrees to be bound by the terms of this Section 13.16 if
such disclosure is reasonably incidental to the administration of the Revolving
Credit Facility or Letter of Credit Facility, (c) as required by any law, rule,
or regulation, (d) upon a request or requirement (orally or in writing, by
interrogatory, court order, subpoena, administrative proceeding, civil
investigatory demand, or any similar legal process) of any court or
administrative agency, governmental authority or civil litigant (each Lending
Party, however, shall to the extent permitted by law and as promptly as
practicable, notify Borrower prior to such disclosure so that the Borrower may
seek at the Borrower's sole expense a protective order or other appropriate
remedy), (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Lending Party other than as a result of a disclosure by any Lending Party
prohibited by this Agreement, (g) to the extent necessary in connection with the
exercise of any remedy under this Agreement or any other Loan Document, and (h)
subject to provisions substantially similar to those contained in this Section,
to any actual or proposed participant or assignee.
13.17 GOVERNING LAW; WAIVER OF JURY TRIAL.
-----------------------------------
(A) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY DOCUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(B) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF AMERICA AND, BY
THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY
BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE
BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR
PROCEEDING.
110
(C) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 13.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NORTH CAROLINA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(F) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[Signatures on following pages]
111
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
CONE XXXXX CORPORATION
By:________________________________
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By:________________________________
Name: Xxxxxx Xxxxx
Title: Managing Director
CREDIT AGREEMENT
Signature Page 1 of 6
BANK OF AMERICA, N.A.
By:_______________________________
Name: Xxxxxx Xxxxx
Title: Managing Director
Lending Office for Base Rate Loans:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: CCS/Agency Services
Telephone:(000) 000-0000
Telefacsimile:(000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.: 1366212250600
Reference: Cone Xxxxx Corporation
Attention: CCS/Agency Services
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx,00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: CCS/Agency Services
Telephone:(000) 000-0000
Telefacsimile:(000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.: 1366212250600
Reference: Cone Xxxxx Corporation
Attention: CCS/Agency Services
CREDIT AGREEMENT
Signature Page 2 of 6
FIRST UNION NATIONAL BANK
By:___________________________________
Name: Xxxxx Xxxx
Title: Senior Vice President
Lending Office for Base Rate Loans:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
First Union National Bank
ABA# 053 000219
Account No.: 1459168109011
Reference: Cone Xxxxx
Attention: Xxxx Xxxxxxx
Lending Office for Eurodollar Rate Loans:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
First Union National Bank
ABA# 053 000219
Account No.: 1459168109011
Reference: Cone Xxxxx
Attention: Xxxx Xxxxxxx
CREDIT AGREEMENT
Signature Page 3 of 6
WACHOVIA BANK, N.A.
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Lending Office for Base Rate Loans:
Wachovia Bank, N.A.
000 X. Xxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
Attention: Xxxx Xxxxx or Xxxxx Xxxxx
Telephone: 000-000-0000 or -5181
Telefacsimile: 000-000-0000
Wire Transfer Instructions:
Wachovia Bank, N.A.
ABA# 0531 00494
Account No.: 8791-998539
Reference: Loan Proceeds for Cone Xxxxx
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
Wachovia Bank, N.A.
000 X. Xxxx Xxxxxx
Xxxxxxx-Xxxxx, XX 00000
Attention: Xxxx Xxxxx or Xxxxx Xxxxx
Telephone: 000-000-0000 or -5181
Telefacsimile: 000-000-0000
Wire Transfer Instructions:
Wachovia Bank, N.A.
ABA# 0531 00494
Account No.: 8791-998539
Reference: Loan Proceeds for Cone Xxxxx
Attention: Agency Services
CREDIT AGREEMENT
Signature Page 4 of 6
SUNTRUST BANK
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Lending Office for Base Rate Loans:
SunTrust Bank
00 Xxxx Xxxxx, 00xx Xxxxx, XX-0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxx-Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
SunTrust Bank
ABA# 000-000-000
Account No.: 9088000112
Reference: Cone Xxxxx
Attention: Corporate Banking Operations
Support (Xxxxxxx Xxxxxx)
Lending Office for Eurodollar Rate Loans:
SunTrust Bank
00 Xxxx Xxxxx, 00xx Xxxxx, XX-0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxx-Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
Wire Transfer Instructions:
SunTrust Bank
ABA# 000-000-000
Account No.: 9088000112
Reference: Cone Xxxxx
Attention: Corporate Banking Operations
Support (Xxxxxxx Xxxxxx)
CREDIT AGREEMENT
Signature Page 5 of 6
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:_______________________________________
Name:_____________________________________
Title:____________________________________
Lending Office for Base Rate Loans:
Xxxxxx Guaranty Trust Company of
New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telefacsimile: 000-000-0000
Wire Transfer Instructions:
Xxxxxx Guaranty Trust Company of
New York
ABA# 000-000-000
Account No.: 000-00-000
Reference: Cone Xxxxx Corp.
Attention: Unit # 8
Lending Office for Eurodollar Rate Loans:
Xxxxxx Guaranty Trust Company of
New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telefacsimile: 000-000-0000
Wire Transfer Instructions:
Xxxxxx Guaranty Trust Company of
New York
ABA# 000-000-000
Account No.: 000-00-000
Reference: Cone Xxxxx Corp.
Attention: Unit # 8
CREDIT AGREEMENT
Signature Page 6 of 6
EXHIBIT A
Applicable Commitment Percentages
Lender Revolving Credit Applicable Commitment
Commitment Percentage
--------------------- ---------------- ---------------------
Bank of America, N.A. $ 25,000,000.00 31.250000%
First Union National Bank $ 20,000,000.00 25.000000%
Xxxxxx Guaranty Trust $ 10,000,000.00 12.500000%
Company of New York
SunTrust Bank $ 5,000,000.00 6.250000%
Wachovia Bank, N.A. $ 20,000,000.00 25.000000%
--------------- ----------
TOTAL $ 80,000,000.00 100%
A-1
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Credit Agreement dated as of January 28, 2000
(the "Credit Agreement") among Cone Xxxxx Corporation, a North Carolina
corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement)
and Bank of America, N.A., as agent for the Lenders (the "Agent"). Terms defined
in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents.* After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Loans owing to the Assignee will be as set
forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Loan Documents or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Notes held by the Assignor and requests that the
Agent exchange such Notes for new Notes payable to the order of the Assignee in
an amount equal to the Revolving Credit Commitment assumed by the Assignee
pursuant hereto and to the Assignor in an amount equal to the Revolving Credit
Commitment retained by the Assignor, if any, as specified on Schedule 1.
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 9.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under Section 6.6.
-----------
*In the case of Bank of America as Assignor, excluding any rights, benefits or
duties as Issuing Bank.
B-1
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of North Carolina.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
Schedule 1
Revolving Credit
Facility
Percentage interest assigned: _____%
Assignee's Commitment: $
_____________
Aggregate outstanding principal amount of Loans assigned: $
_____________
Principal amount of Note payable to Assignee: $
_____________
Principal amount of Note payable to Assignor: $
_____________
Effective Date (if other than date of acceptance by Agent): *________, ___
[NAME OF ASSIGNOR], as Assignor
By: ____________________
Title:
Dated: __________, ____
[NAME OF ASSIGNEE], as Assignee
By: ____________________
Title:
Domestic Lending Office:
Eurodollar Lending Office:
-----------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
B-3
Accepted [and Approved] **
this ___ day of ___________, ____
BANK OF AMERICA, N.A., as Agent
By: __________________________
Title:
[Approved this ____ day
of ____________, ____
[NAME OF BORROWER]
By:_____________________________]**
Title:
-----------------------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee."
B-4
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of January
28, 2000 (the "Agreement") among Cone Xxxxx Corporation, a North Carolina
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
--------------------- --------------- ----------------------
--------------------- --------------- ----------------------
---------------------
---------------------
--------------------- --------------- ----------------------
--------------------- --------------- ----------------------
---------------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of __________________, ____.
CONE XXXXX CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
C-1
EXHIBIT D
Form of Borrowing Notice
To: Bank of America, N.A.,
as Agent
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000)000-0000
Reference is hereby made to the Credit Agreement dated as of January
28, 2000 (the "Agreement") among Cone Xxxxx Corporation, a North Carolina
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent that Loans of the type and amount set forth below be made on the
date indicated:
Type of Loan (check one) Interest Period(1) Aggregate Amount(2) Date of Loan(3)
------------------------------- -- ------------------------ -- ---------------------------- --- --------------------
Revolving Loan
-------------------------------
Base Rate Loan
Eurodollar Rate Loan ------------------------ ---------------------------- -------------------- ---
------------------------ ---------------------------- -------------------- ---
-------------------------------
(1) For any Eurodollar Rate Loan, one, two or three months.
(2) Must be $_________ or if greater an integral multiple of $_______,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or
after giving effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VIII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are
D-1
true and correct as of the date hereof except that the reference to the
financial statements in Section 8.6(a) of the Agreement shall be deemed (solely
for the purpose of the representation and warranty contained in such Section
8.6(a) but not for the purpose of any cross reference to such Section 8.6(a) or
to the financial statements described therein contained in any other provision
of Section 8.6 or elsewhere in Article 8) to refer to those financial statements
most recently delivered to you pursuant to Section 9.1 of the Agreement (it
being understood that any financial statements delivered pursuant to Section
9.1(b) have not been certified by independent public accountants).
3. All conditions contained in the Agreement to the making of
any Loan requested hereby have been met or satisfied in full.
CONE XXXXX CORPORATION
BY:________________________________
Authorized Representative
DATE:______________________________
D-2
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, N.A., as Agent
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of January
28, 2000 (the "Agreement") among Cone Xxxxx Corporation, a North Carolina
corporation (the "Borrower"), the Lenders (as defined in the Agreement), and
Bank of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms
used but not defined herein shall have the respective meanings therefor set
forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent of the following selection of a type of Loan and Interest Period:
Type of Loan (check one) Interest Period(1) Aggregate Amount(2) Date of Loan(3)
---------------------------------- ---------------------- -------------------------- --------------------
Revolving Loan
----------------------------------
Base Rate Loan
---------------------- -------------------------- --------------------
Eurodollar Rate Loan
---------------------- -------------------------- --------------------
-----------------------
(1) For any Eurodollar Rate Loan, one, two or three months.
(2) Must be $_________ or if greater an integral multiple of $_______,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Eurodollar Rate Loan;
CONE XXXXX CORPORATION
BY:________________________________
Authorized Representative
DATE:______________________________
E-1
EXHIBIT F
Form of Revolving Note
Promissory Note
(Revolving Loan)
$______________ Charlotte, North Carolina
-------- --, ----
FOR VALUE RECEIVED, CONE XXXXX CORPORATION, a North Carolina
corporation having its principal place of business located in Greensboro, North
Carolina (the "Borrower"), hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as agent for the
Lenders (the "Agent"), located at 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places as the Agent
may designate in writing) at the times set forth in the Credit Agreement dated
as of ________________, ____ among the Borrower, the financial institutions
party thereto (collectively, the "Lenders") and the Agent (the "Agreement" --all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of
________________________________ DOLLARS ($__________) or, if less than such
principal amount, the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the Borrower pursuant to the Agreement on the Revolving
Credit Termination Date or such earlier date as may be required pursuant to the
terms of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Articles II and IV of the Agreement. All or any portion of the
principal amount of Loans may be prepaid or required to be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Revolving Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
F-1
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is hereby made for a more complete statement of
the terms and conditions upon which the Revolving Loans evidenced hereby were or
are made and are to be repaid. This Revolving Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Revolving Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-2
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
CONE XXXXX CORPORATION
By:___________________________
Name:_________________________
Title:_________________________
F-3
EXHIBIT G
Form of Opinion of Borrower's Counsel
H-1
EXHIBIT H
Compliance Certificate
Bank of America, N.A.,
as Agent
000 Xxxxx Xxxxx Xxxxxx, 8th Floor
NC1-007-08-17
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Bank of America, N.A.,
as Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of January
28, 2000 (the "Agreement") among Cone Xxxxx Corporation, a North Carolina
corporation (the "Borrower"), the Lenders (as defined in the Agreement) and Bank
of America, N.A., as Agent for the Lenders ("Agent"). Capitalized terms used but
not otherwise defined herein shall have the respective meanings therefor set
forth in the Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of __________ (the "Determination
Date") as follows:
1. Calculations:
I. Compliance with Section 10.1(a): Consolidated Net Worth
A. Consolidated Net Worth as of the Closing Date Quarter $__________
REQUIRED: THE CONSOLIDATED NET WORTH FROM THE CLOSING DATE UNTIL
THE END OF THE CLOSING DATE QUARTER (I.A) MUST NOT BE
LESS THAN $145,000,000.
B. Consolidated Net Worth as at the last day of most recent Fiscal
Quarter $__________
C. amount of Consolidated Net Worth required to be maintained
as of the end of the penultimate Fiscal Quarter $__________
H-2
D. 100% of the aggregate amount of increases in stated capital
and additional paid-in capital accounts resulting from
issuance of equity securities or other capital investments
during the most recent Fiscal Quarter $__________
E. Sum of I.C and I.D $__________
REQUIRED: I.B MUST NOT BE LESS THAN I.E.
II. Compliance with Section 10.1(b): Consolidated Leverage Ratio
A. Consolidated Indebtedness $_________
B. Consolidated EBITDA
1. Consolidated Net Income (as calculated
in the definition thereof, including certain
exclusions therefrom) $_________
2. Consolidated Interest Expense (as
calculated in the definition thereof) $_________
3. Taxes on income $_________
4. Amortization $_________
5. Depreciation $_________
6. non-cash charges otherwise deducted
in calculating Consolidated Net Income
resulting from FASB No. 88,
FASB No. 106 Adjustments,
FASB No. 112 Adjustments
or FASB No. 121 Adjustments $_________
7. Non-cash Restructuring Charges $_________
8. Consolidated EBITDA
(sum of X.0, X.0, X.0, X.0, X.0.,
X.0 and B.7) $_________
C. Consolidated Leverage Ratio: Ratio of Consolidated
Indebtedness (II.A.) to Consolidated EBITDA
(II.B.8) is ____ to 1.00.
REQUIRED: THE CONSOLIDATED LEVERAGE RATIO FOR A FOUR QUARTER PERIOD
ENDING DURING THE APPLICABLE PERIOD BELOW MUST NOT EXCEED THE
CORRESPONDING RATIO:
H-3
LEVERAGE RATIO
PERIOD MUST NOT EXCEED
-------------------------- ----------------------
FOUR QUARTER PERIOD ENDED
JANUARY 2, 2000 13.05 TO 1.00
FOUR QUARTER PERIOD ENDING
APRIL 2, 2000 10.25 TO 1.00
FOUR QUARTER PERIOD
ENDING JULY 2, 2000 9.50 TO 1.00
III. Compliance with Section 10.1(c): Consolidated Interest Coverage Ratio
A. Consolidated EBITDA (from II.B.8, above) $_________
B. Consolidated Interest Expense
1. Debt discounts $_________
2. Fees in connection with Indebtedness $_________
3. Payments in connection with Capital Leases$_________
4. Net cash financing costs in connection
with any Securitization Transaction $_________
5. Consolidated Interest Expense
(sum of B.1, B.2, B.3 and B.4) $_________
--
C. Consolidated Interest Coverage Ratio: The ratio of the
Consolidated EBITDA (III.A) to Consolidated Interest Expense
(III.B.5, above) is ______ to 1.00.
REQUIRED: THE CONSOLIDATED INTEREST COVERAGE RATIO FOR A TWELVE-
MONTH PERIOD ENDING DURING THE APPLICABLE PERIOD MUST EXCEED
THE CORRESPONDING RATIO:
INTEREST COVERAGE RATIO
PERIOD MUST EXCEED
------------------------ --------------------
TWELVE-MONTH PERIOD ENDED
JANUARY 2, 2000 1.00 TO 1.00
TWELVE-MONTH PERIOD ENDING
APRIL 2, 2000 1.35 TO 1.00
TWELVE-MONTH PERIOD
ENDING JULY 2, 2000 1.40 TO 1.00
H-4
IV. Compliance with Section 10.1(d): Consolidated EBIDTA
Consolidated EBITDA (from 11.B.8 above) for the most recent
Fiscal Quarter $________
REQUIRED: THE CONSOLIDATED EBIDTA FOR A FOUR-QUARTER PERIOD ENDING
DURING THE APPLICABLE PERIOD MUST EXCEED THE CORRESPONDING
RATIO:
PERIOD ENDING CONSOLIDATED EBITDA MUST EXCEED
------------- -------------------------------
FISCAL QUARTER ENDED JANUARY 2, 2000 $2,000,000
FISCAL QUARTER ENDING
APRIL 2, 2000 $8,550,000
TWO FISCAL QUARTERS ENDING
JULY 2, 2000 $20,450,000
V. Compliance with Section 10.3: Capital Expenditures
A. U.S. Capital Expenditures $________
REQUIRED: U.S. CAPITAL EXPENDITURES FOR THE FOLLOWING PERIODS MUST
NOT EXCEED THE CORRESPONDING AMOUNTS:
CAPITAL EXPENDITURES
PERIOD: NOT TO EXCEED:
------- --------------
FISCAL YEAR ENDED JANUARY 2, 2000 $13,500,000
JANUARY 3, 2000 THROUGH AND INCLUDING FACILITY
TERMINATION DATE $8,000,000
B. Mexican Capital Expenditures $________
REQUIRED: MEXICAN CAPITAL EXPENDITURES FROM THE CLOSING DATE
UNTIL THE FACILITY TERMINATION DATE MUST NOT EXCEED
AN AGGREGATE AMOUNT OF $1,000,000 FOR THE PURPOSE OF
PURCHASING CERTAIN REAL PROPERTY IN ALTAMIRA, MEXICO
AND MAKING CERTAIN IMPROVEMENTS THERETO TO THE EXTENT
SUCH IMPROVEMENTS HAVE BEEN CONTRACTUALLY AGREED TO
WITH THIRD PARTIES PRIOR TO THE CLOSING DATE.
VI. Compliance with Section 10.7(g): Investments in Altamira, Mexico site:
X-0
X. Xxxxxxxx, Xxxxxx site investments for [___ Fiscal
Quarter of 2000] [the period of August 1, 2000
through the Facility Termination Date]: $________
REQUIRED: INVESTMENTS MADE RELATING TO ALTAMIRA, MEXICO SITE FOR THE
FOLLOWING PERIODS MUST NOT EXCEED THE CORRESPONDING AMOUNTS:
MEXICAN INVESTMENTS
PERIOD: NOT TO EXCEED:
------ ----------------------
FIRST FISCAL QUARTER OF 2000 $2,195,000
SECOND FISCAL QUARTER OF 2000 JANUARY
$2,577,500
AUGUST 1, 2000 THROUGH THE FACILITY $955,300
TERMINATION DATE
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrower has not defaulted in the keeping,
observance, performance or fulfillment of its obligations pursuant to
any of the Loan Documents; and (b) no Default or Event of Default
specified in Article XI of the Agreement has occurred and is
continuing.
B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the Borrower
proposes to take the following action with respect to such Default or
Event of Default: ___________________________________________________
_____________________________________________________________________.
(Note, if no Default or Event of Default has occurred, insert
"Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 9.1 of the
Agreement.
H-6
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 20__.
CONE XXXXX CORPORATION
By:___________________________________
Authorized Representative
Name:_________________________________
Title:________________________________
H-7
EXHIBIT I
Form of Facility Guaranty
I-1
EXHIBIT J-1
Form of General Security Agreement
J-1-1
EXHIBIT J-2
Form of Priority Security Agreement
J-2-1
EXHIBIT K
Form of Pledge Agreement (Borrower)
K-1
EXHIBIT L
Form of Borrowing Base Certificate
Bank of America, N.A.,
as Agent
000 Xxxxx Xxxxx Xxxxxx, 8th Floor
NC1-007-08-17
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Bank of America, N.A.,
as Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of January
28, 2000 (the "Agreement") among Cone Xxxxx Corporation (the "Borrower"), the
Lenders (as defined in the Agreement) and Bank of America, N.A., as Agent for
the Lenders ("Agent"). Capitalized terms used but not defined herein shall have
the respective meanings therefor set forth in the Agreement. The undersigned, a
duly authorized and acting chief financial officer, chief executive officer,
treasurer or controller, hereby certifies to you as of __________ [insert
Determination Date] as follows:
Compliance with Borrowing Base Requirement
A. Borrowing Base
1. Eligible Receivables Amount $_______
2. A1 Times 45% $_______
3. Eligible Inventory Amount $_______
4. A3 Times 60% $_______
5. Eligible Fixed Asset Amount $_______
6. A5 Times 60% $_______
7. Overadvance Basket* $_______
8. TOTAL (Sum of A2, A4, A6 and A7) $_______
B. Revolving Credit Facility
1. Revolving Credit Outstandings $_______
2. Letter of Credit Outstandings $_______
3. TOTAL (Sum of B1 and B2) $_______
L-1
C. Senior Debt
1. Senior Debentures $_______
2. Senior Notes $_______
3. TOTAL (Sum of C1 and C2) $_______
D. Senior Debt Outstandings
1. Revolving Credit Facility (Item B4) $_______
2. Senior Debt (Item C3) $_______
3. TOTAL (Sum of D1 and D2) $_______
E. Borrowing Base - Senior Debt Outstandings (A8 minus D3) $_______
Line E must be greater than zero. If Line E is less than zero,
either (i) the Overadvance Basket (Line A7) must be
included/increased by such deficiency, and (ii) if a deficiency
still exists with the Overadvance Basket equal to $5,000,000, then
the Revolving Credit Facility (Line B4) must be reduced immediately
by an amount not less than the absolute value of Line E.
*Not to exceed $5,000,000.
CONE XXXXX CORPORATION
By: __________________________
Name:_________________________
Position:_____________________
Date:_________________________
X-0
XXXXXXX X-0
Form of General Deed of Trust
M-2-1
EXHIBIT M-2
Form of General Mortgage
M-2-1
EXHIBIT M-3
Form of Priority Deed of Trust
M-3-1
EXHIBIT M-4
Form of Priority Mortgage
M-4-1
Schedule 1.1
Disposition of Assets
S-1
Schedule 1.2
Material Subsidiaries
S-2
Schedule 5.3
Information Regarding Collateral
S-3
Schedule 5.4
Real Property Subject to Mortgages
S-4
Schedule 8.4
Subsidiaries and Investments in Other Persons
S-5
Schedule 8.6
Indebtedness
S-6
Schedule 8.7
Liens
S-7
Schedule 8.8
Tax Matters
S-8
Schedule 8.10
Litigation
S-9
Schedule 8.16
Employee Benefit Plan Events
S-10
Schedule 8.18
Environmental Issues
S-11
Schedule 8.19
Employment Matters
S-12
Schedule 9.5
Insurance
S-13
Schedule 10.10
Transactions with Affiliates
S-14
Schedule 10.14
Sale and Leaseback Transactions
S-15
