$500,000,000
CREDIT AGREEMENT
dated as of June 27, 1997
among
DIMON INCORPORATED
As Borrower
THE LENDERS NAMED HEREIN
as Lenders
NATIONSBANK, N.A.
as Administrative Agent
FIRST UNION NATIONAL BANK
as Documentation Agent
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND," NEW YORK BRANCH
and
SOCIETE GENERALE
as Co-Agents
TABLE OF CONTENTS
ARTICLE I GENERAL DEFINITIONS................................................1
Section 1.1 Definitions.............................................1
Section 1.2 Other Interpretative Provisions........................17
Section 1.3 Accounting Terms and Determinations.....................18
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES................................19
Section 2.1 The Advances............................................19
Section 2.2 Evidence of Debt........................................19
Section 2.3 Making the Advances.....................................20
Section 2.4 Conversion and Continuation Elections...................21
Section 2.5 Termination or Reduction of Commitments.................22
Section 2.6 Prepayments.............................................23
Section 2.7 Repayment of the Obligations............................24
Section 2.8 Extension of Termination Date...........................24
Section 2.9 Interest................................................25
Section 2.10 Fees...................................................26
Section 2.11 Payments and Computations..............................26
Section 2.12 Sharing of Payments, Etc...............................27
Section 2.13 Limitation of Interest.................................28
Section 2.14 Use of Proceeds........................................28
ARTICLE III YIELD PROTECTION, INTEREST RATE DETERMINATION, TAXES, ETC........28
Section 3.1 Additional Interest on Eurodollar Rate Advances.........29
Section 3.2 Interest Rate Determination and Protection..............29
Section 3.3 Increased Costs.........................................30
Section 3.4 Illegality..............................................31
Section 3.5 Taxes...................................................31
Section 3.6 Funding Losses..........................................34
Section 3.7 Certificates of Lenders.................................34
Section 3.8 Replacement of a Lender.................................35
Section 3.9 Survival...............................................35
ARTICLE IV CONDITIONS PRECEDENT.............................................35
Section 4.1 Conditions of Initial Borrowing.........................35
Section 4.2 Conditions to All Borrowings............................38
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................38
Section 5.1 Corporate Existence and Power...........................38
Section 5.2 Corporate and Governmental Authorization; Contravention.39
Section 5.3 Binding Effect..........................................39
Section 5.4 Financial Information...................................39
Section 5.5 Litigation..............................................40
Section 5.6 Marketable Title........................................40
Section 5.7 Filings.................................................41
Section 5.8 Regulation U............................................41
Section 5.9 Subsidiaries and Affiliates.............................41
Section 5.10 Solvency...............................................41
Section 5.11 ERISA Compliance.......................................41
Section 5.12 Taxes..................................................42
Section 5.13 Environmental Matters..................................42
Section 5.14 Regulated Entities.....................................43
Section 5.15 No Burdensome Restrictions.............................43
Section 5.16 Labor Relations........................................43
Section 5.17 Copyrights, Patents, Trademarks and Licenses, etc......43
Section 5.18 Compliance With Laws...................................43
Section 5.19 Broker's Fees; Transaction Fees........................44
Section 5.20 Full Disclosure........................................44
ARTICLE VI FINANCIAL COVENANTS..............................................44
Section 6.1 Consolidated Working Capital............................44
Section 6.2 Minimum Consolidated Tangible Net Worth.................44
Section 6.3 Consolidated Fixed Charge Coverage Ratio................45
Section 6.4 Consolidated Leverage Ratio.............................45
ARTICLE VII AFFIRMATIVE COVENANTS...........................................46
Section 7.1 Information.............................................46
Section 7.2 Payment of Obligations..................................49
Section 7.3 Maintenance of Property; Insurance......................49
Section 7.4 Conduct of Business and Maintenance of Existence........50
Section 7.5 Compliance with Laws....................................50
Section 7.6 Accounting; Inspection of Property, Books and Records...50
Section 7.7 Additional Guarantors...................................50
Section 7.8 ERISA...................................................51
ARTICLE VIII NEGATIVE COVENANTS.............................................51
Section 8.1 Restriction on Liens....................................51
Section 8.2 Debt....................................................53
Section 8.3 Guarantees..............................................53
Section 8.4 Consolidations, Mergers and Sale of Assets..............53
Section 8.5 Acquisitions and Investments............................54
Section 8.6 Transactions with Other Persons.........................57
Section 8.7 Transactions with Affiliates............................57
Section 8.8 Compliance with ERISA...................................57
Section 8.9 Change in Structure.....................................57
Section 8.10 Restrictions on Negative Pledges.......................57
Section 8.11 Limitation on Dividend Restrictions....................58
Section 8.12 Payments of Subordinated Debt Securities...............58
ARTICLE IX EVENTS OF DEFAULT................................................58
Section 9.1 Events of Default.......................................58
Section 9.2 Remedies................................................61
ARTICLE X ADMINISTRATIVE AGENT, DOCUMENTATION AGENT AND CO-AGENTS...........62
Section 10.1 Authorization and Action...............................62
Section 10.2 Administrative Agent's Reliance, etc...................62
Section 10.3 NationsBank, FUNB, Rabobank, SocGen and Affiliates.....63
Section 10.4 Lender Credit Decision.................................63
Section 10.5 Indemnification........................................63
Section 10.6 Successor Administrative Agent.........................64
Section 10.7 Notice of Default......................................64
Section 10.8 Administrative Agent's Fee.............................64
ARTICLE XI MISCELLANEOUS....................................................65
Section 11.1 Notices................................................65
Section 11.2 No Waivers.............................................65
Section 11.3 Expenses; Indemnity....................................65
Section 11.4 Amendments, etc........................................66
Section 11.5 Successors and Assigns.................................67
Section 11.6 Right of Set-off.......................................69
Section 11.7 CONSENT TO JURISDICTION................................70
Section 11.8 VIRGINIA LAW...........................................71
Section 11.9 Counterparts; Effectiveness............................71
Section 11.10 WAIVER OF JURY TRIAL..................................71
Section 11.11 Termination of Existing Credit Agreement..............71
Section 11.12 Confidentiality.......................................71
SCHEDULES AND EXHIBITS
Schedule 1.1 - Applicable Margin Calculation
Schedule 2.10 - Commitment Fee Calculation
Schedule 5.5 - Litigation
Schedule 5.9 - List of Subsidiaries and Affiliates
Schedule 5.13 - Environmental Matters
Schedule 5.17 - Intellectual Property Matters
Schedule 8.1 - Existing Liens
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Subsidiary Guaranty
Exhibit C - Form of Promissory Note
Exhibit D - Form of Notice of Borrowing
Exhibit E - Form of Notice of Continuation/Conversion
Exhibit F - Opinion of Counsel to the Borrower and the Guarantors
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of June 27, 1997 by and among
DIMON INCORPORATED, a Virginia corporation ("Borrower"), the lenders listed on
the signature pages hereof (each, a "Lender" and collectively, together with
their successors and permitted assigns, the "Lenders"), NATIONSBANK, N.A., a
national banking association ("NationsBank"), as administrative agent for the
Lenders hereunder (in such capacity, the "Administrative Agent"), FIRST UNION
NATIONAL BANK ("FUNB"), as documentation agent for the Lenders hereunder (in
such capacity, the "Documentation Agent"), and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND," NEW YORK BRANCH
("Rabobank") and SOCIETE GENERALE ("SocGen"), as co-agents for the Lenders
hereunder (in such capacity, the "Co-Agents").
ARTICLE I
GENERAL DEFINITIONS
Section 1.1 Definitions.
The following terms, as used herein, shall have the following meanings:
"Acquisition" shall mean any transaction, or any series of related
transactions, by which the Borrower and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of the
assets of any Person or division thereof, whether through purchase of assets,
merger or otherwise, (b) acquires (in one transaction or as the most recent
transaction in a series of transactions) control of at least a majority in
ordinary voting power of the securities of a Person which have ordinary voting
power for the election of directors or (c) otherwise acquires control of a 50%
or more ownership interest in any such Person.
"Administrative Agent" shall mean NationsBank or any successor
administrative agent appointed pursuant to Article X.
"Advance" shall mean an advance by a Lender to the Borrower pursuant to
Article II, and refers to a Base Rate Advance or a Eurodollar Rate Advance (each
of which shall be a "Type" of Advance).
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise. Without
limitation, any beneficial owner of ten percent (10%) or more of the equity of a
Person shall, for the purposes of this Agreement, be deemed to control the other
Person.
"Aggregate Commitment" shall mean the combined Commitments of the
Lenders in the amount of Five Hundred Million Dollars ($500,000,000), as such
amount may be reduced from time to time pursuant to this Agreement.
"Agreement" shall mean this Credit Agreement, together with all
Schedules and Exhibits hereto, each as amended, modified or supplemented from
time to time in accordance with the terms hereof.
"Applicable Lending Office" shall mean, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Margin" shall mean (a) with respect to each Base Rate
Advance, zero percent (0%) per annum, and (b) with respect to each Eurodollar
Rate Advance, (i) 0.70% per annum from the Closing Date through the date on
which the Administrative Agent first receives the officer's certificate to be
furnished by the Borrower pursuant to Section 7.1(c) of this Agreement, and (ii)
thereafter, the rate per annum derived from the formula set forth on Schedule
1.1 attached hereto. The Applicable Margin with respect to both Base Rate
Advances and Eurodollar Rate Advances shall be increased upon the occurrence and
during the continuance of an Event of Default (including after the acceleration
of the Obligations), by an additional two percent (2%) per annum.
"Approved Accounting Firm" shall mean Price Waterhouse LLP, Ernst &
Young LLP or any other independent public accountants selected by the Borrower
and satisfactory to the Required Lenders.
"Asset Sale" shall have the meaning given to such term in the Senior
Indenture.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an Eligible Assignee and consented to by the
Borrower and the Administrative Agent, in substantially the form of Exhibit A
hereto or such other form as shall be accepted by the Administrative Agent.
"Base Rate" shall mean, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate per annum shall at all
times be equal to the highest of:
(i) the rate of interest announced publicly by NationsBank in
Charlotte, North Carolina, from time to time, as NationsBank's prime
rate; or
(ii) one half of one percent (1/2 of 1%) per annum above
the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money center banks, such three-week
moving average being determined weekly on each Monday (or, if any such
day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by NationsBank on the
basis of such rates reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the basis of
quotations for such rates received by NationsBank from three New York
certificate of deposit dealers of recognized standing selected by
NationsBank, in either case adjusted to the nearest one sixteenth of
one percent (1/16 of 1%) or, if there is no nearest one sixteenth of
one percent (1/16 of 1%), to the next higher one sixteenth of one
percent (1/16 of 1%); or
(iii) one half of one percent (1/2 of 1%) per annum above the
Federal Funds Rate.
"Base Rate Advance" shall mean an Advance which bears interest as
provided in Section 2.9(a).
"Borrower" shall mean DIMON Incorporated, a Virginia corporation, and
its successors.
"Borrowing" shall mean a borrowing consisting of Advances of the same
Type made on the same day by the Lenders, and in the case of Eurodollar Rate
Advances, with the same Interest Period. All Advances made as, Converted to, or
Continued as, the same Type and (in the case of Eurodollars Advances) with the
same Interest Period on the same day shall be deemed to constitute a single
Borrowing until paid, prepaid or next Converted or Continued.
"Brazilian Tax Assessment" shall mean that certain assessment imposed
on the Borrower by the Brazilian taxing authorities in 1993 in an amount,
together with all interest and penalties, not exceeding $41,577,000 as of June
30, 1996, as more fully described in Note O to the Borrower's consolidated
financial statements for the fiscal year ended June 30, 1996 and incorporated
into the Borrower's 1996 Annual Report.
"Business Day" shall mean a day of the year on which banks are not
required or authorized to close in Charlotte, North Carolina or New York City
and, if the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings in Dollars are carried on in the London interbank market.
"Calculation Period" shall mean (i) as of June 30, 1997, the one
fiscal-quarter period of the Borrower ending on such date, (ii) as of September
30, 1997, the two fiscal-quarter period of the Borrower ending on such date,
(iii) as of December 31, 1997, the three fiscal-quarter period of the Borrower
ending on such date and (iv) as of March 31, 1998 and the last day of any fiscal
quarter occurring thereafter, the four fiscal-quarter period of the Borrower
ending on such date.
"Capital Lease" shall mean a lease that should be capitalized on a
balance sheet of the lessee prepared in accordance with GAAP.
"Change of Control" means such time as:
(i) any Person or group (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act) (excluding one or more members
of the Monk Family) has become, directly or indirectly, the beneficial
owner, by way of merger, consolidation or otherwise, of 30% or more of
the voting power of the Voting Stock of the Borrower on a fully-diluted
basis, after giving effect to the conversion and exercise of all
outstanding warrants, options and other securities of the Borrower
convertible into or exercisable for Voting Stock of the Borrower
(whether or not such securities are then currently convertible or
exercisable); or
(ii) the sale, lease or transfer of all or substantially all
of the consolidated assets of the Borrower to any Person or group; or
(iii) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the Board
of Directors of the Borrower, together with any new members of such
Board of Directors whose election by such Board of Directors or whose
nomination for election by the stockholders of the Borrower was
approved by a vote of a majority of the members of such Board of
Directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority of the directors of the Borrower then in office; or
(iv) the Borrower consolidates with or merges with or into
another Person or any Person consolidates with, or merges with or into,
the Borrower (in each case, whether or not in compliance with the terms
of this Agreement), in any such event pursuant to a transaction in
which immediately after the consummation thereof Persons owning a
majority of the Voting Stock of the Borrower immediately prior to such
consummation shall cease to own a majority of the Voting Stock of the
Borrower; or
(v) the occurrence of a "Change of Control" under and as
defined in the Subordinated Indenture.
"Closing Date" shall mean June 27, 1997, the date as of which this
Agreement and the other Loan Documents were executed and delivered by the
parties hereto.
"Co-Agents" shall mean Rabobank and SocGen
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" shall have the meaning set forth in Section 2.1.
"Commitment Percentage" shall mean, as to any Lender, the percentage
equivalent of such Lender's Commitment divided by the Aggregate Commitment.
"Confirmed Order" shall mean an order by a customer not an Affiliate of
the Borrower which has been accepted in the ordinary course of business by
representatives of the Borrower or an Affiliate of the Borrower and recorded on
the inventory records of such Affiliate or the Borrower.
"Consolidated Capital Expenditures" shall mean, for any fiscal period
of the Borrower, all expenditures by the Borrower and its Subsidiaries during
such period for the acquisition or leasing of any fixed assets or improvements,
or for replacements, substitutions or additions thereto, which have a useful
life of more than one year and which are or should be reflected on the
Borrower's consolidated statement of cash flows for such period as capital
expenditures in accordance with GAAP.
"Consolidated EBIT" shall mean, for any fiscal period of the Borrower,
the sum (without duplication) of (i) Consolidated Net Income of the Borrower for
such period, plus (ii) the Consolidated Income Tax Expense deducted in
determining such Consolidated Net Income, plus (iii) the Consolidated Interest
Expense deducted in determining such Consolidated Net Income, minus (iv) any
extraordinary items of gain included in Consolidated Net Income for such period,
determined for the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP, plus (v) any extraordinary items of loss deducted from
Consolidated Net Income of the Borrower for such period, determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any fiscal period of the
Borrower, the sum of (i) Consolidated EBIT for such period, plus (ii) the
aggregate amount of the Borrower's depreciation expense and amortization expense
for such period to the extent deducted in determining Consolidated Net Income,
determined on a consolidated basis for the Borrower and its Subsidiaries in
accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, at any date, the
ratio of (a) the sum of (i) Consolidated EBITDA for the Calculation Period
ending on such date, minus (ii) Consolidated Income Tax Expense for such
Calculation Period, minus (iii) Consolidated Capital Expenditures for such
Calculation Period, plus (iv) Consolidated Rental Expense for such Calculation
Period to (b) the sum of (i) scheduled payments of principal of the Borrower's
Consolidated Funded Debt during such Calculation Period (including, without
limitation, the principal component of scheduled payments under Capital Leases),
plus (ii) Consolidated Interest Expense for such Calculation Period, plus (iii)
the amount of dividends, distributions, stock repurchases and stock redemptions
paid in cash by the Borrower or any of its Subsidiaries (other than any such
dividend, distribution, stock repurchase or stock redemption payments made to
the Borrower or any of its Subsidiaries) during such Calculation Period, plus
(iv) Consolidated Rental Expense for such Calculation Period, in each case
determined for the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Consolidated Funded Debt" shall mean, at any date, all liabilities of
the Borrower and its Subsidiaries that are or should be reflected at such date
on the Borrower's consolidated balance sheet as long-term debt and current
maturities of long-term debt in accordance with GAAP.
"Consolidated Income Tax Expense" shall mean, for any fiscal period of
the Borrower, the Borrower's income tax expense for such period, determined for
the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" shall mean, for any fiscal period of
the Borrower, the Borrower's interest expense for such period (including,
without limitation, the interest component of payments under Capital Leases),
determined for the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Consolidated Leverage Ratio" shall mean, at any date, the ratio of (a)
Consolidated Total Debt to (b) the sum of (i) Consolidated Net Worth, plus (ii)
Consolidated Total Debt.
"Consolidated Net Income" shall mean, for any fiscal period of the
Borrower, the Borrower's net income (or net loss) for such period, determined
for the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"Consolidated Net Worth" shall mean, at any date, (a) the Borrower's
total stockholders' equity at such date, without giving effect to (i) the effect
of foreign currency translation adjustments under Financial Accounting Standards
Board Statement No. 52, "Foreign Currency Translation", (ii) the effect of the
adjustments to the value of the Borrower's investments in debt and equity
securities under Financial Accounting Standards Board Statement No. 115,
"Accounting For Certain Investments In Debt And Equity Securities", and (iii)
the effect of the cost of postretirement benefits to employees of the Borrower
under Financial Accounting Standards Board Statement No. 106, "Employer's
Accounting for Postretirement Benefits Other Than Pensions", minus (b) any
write-up of the Borrower's assets subsequent to June 30, 1997, determined for
the Borrower and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"Consolidated Rental Expense" shall mean, for any fiscal period of the
Borrower, the Borrower's rental expense under Operating Leases for such period,
determined for the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean, at any date, the sum of
(i) Consolidated Net Worth, minus (ii) the amount of the Borrower's intangible
assets at such date, including, without limitation, goodwill (whether
representing the excess of cost over book value of assets acquired, or
otherwise), capitalized expenses, patents, trademarks, tradenames, copyrights,
franchises, licenses and deferred charges (such as, without limitation,
unamortized costs and costs of research and development), all determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Total Assets" shall mean, at any date, the Borrower's
total assets, as determined for the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP.
"Consolidated Total Debt" shall mean, at any date, the aggregate amount
of all Debt which creates Consolidated Interest Expense, whether or not such
interest is deferred.
"Consolidated Working Capital" shall mean, at any date, the amount by
which the Borrower's current assets exceed its current liabilities at such date,
determined on a consolidated basis for the Borrower and its Subsidiaries in
accordance with GAAP.
"Continue", "Continuation" and "Continued" shall each refer to the
continuation of a Borrowing comprised of Eurodollar Rate Advances for a
subsequent Interest Period upon the expiration of the preceding Interest Period
pursuant to Section 2.4.
"Convert", "Conversion" and "Converted" shall each refer to a
conversion of Advances of one Type into Advances of another Type pursuant to
Section 2.4 or Section 3.2.
"Covenant Defeasance" shall mean an election by the Borrower under the
Senior Indenture to release the obligations of the Borrower under the Senior
Debt Securities with respect to certain covenants set forth in the Senior
Indenture.
"Debt" of any Person shall mean, at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services (except trade accounts payable arising in the ordinary course of
business), (iv) all obligations of such Person as lessee under Capital Leases,
(v) all obligations of such Person to purchase securities or other property
which arise out of or in connection with the sale of the same or substantially
similar securities or property, (vi) all non-contingent obligations of such
Person to reimburse any other Person in respect of amounts paid under letters of
credit, surety and appeal bonds and performance bonds or similar instruments
assuring any other Person of the performance of any act or acts or the payment
of any obligation and (vii) all obligations of others secured by a Lien on any
asset of such Person, whether or not such obligation is assumed by such Person.
"Default" shall mean any condition or event specified in Section 9.1
which with the giving of notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"DIMON International" shall mean DIMON International, Inc., a North
Carolina corporation.
"Documentation Agent" shall mean FUNB.
"Dollars" and "$" the sign shall each mean the lawful currency of the
United States of America.
"Domestic Lending Office" shall mean, with respect to each Lender, its
office located at its address set forth on the signature pages hereof (or
identified on the signature pages hereof as its Domestic Lending Office) or such
other office as such Lender may hereafter designate as its Domestic Lending
Office by notice to the Borrower and the Administrative Agent.
"Domestic Subsidiary" shall mean any Subsidiary of the Borrower which
is not a Foreign Subsidiary.
"Eligible Assignee" shall mean (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (ii) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus of at least
$100,000,000, provided that such bank is acting through a branch or agency
located in the United States; (iii) a Lender or any Affiliate of a Lender; and
(iv) any other Person approved by the Administrative Agent and the Borrower;
provided, however, that no Person who is a nonresident alien or a foreign entity
for United States income tax purposes (except a commercial bank of the type
described in clause (ii) above), may be an Eligible Assignee unless each Note to
be acquired by such Person is reissued in registered form prior to transfer.
"Environmental Claim" shall mean any claim, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release into or
injury to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, investigation, removal, remedial or response costs,
litigation costs, restitution, civil or criminal penalties, injunctive relief,
or other type of relief, resulting from or based upon (a) the presence,
placement, discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or non-sudden, accidental or
non-accidental placement, spills, leaks, discharges, emissions, releases or
threatened releases) of any Hazardous Material at, in, or from property, whether
or not owned by the Borrower or any of its subsidiaries, or (b) any other
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Law" shall mean any federal, state or local law,
statute, ordinance, code, rule, regulation, decree, order, judgment, or
principles of common law relating to (i) releases or threatened releases of
Hazardous Materials or materials containing Hazardous Materials; (ii) the
manufacture, handling, transport, use, treatment, storage or disposal of
Hazardous Materials or materials containing Hazardous Materials; or (iii)
otherwise relating to the environment or to the protection of human health.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" shall mean any Person who for purposes of Title IV of
ERISA would, together with the Borrower or any of its Subsidiaries, be treated
as members of the same "controlled group" within the meaning of Section
4001(a)(14) of ERISA.
"ERISA Event" shall mean (i) a Reportable Event, unless the 30-day
notice requirement with respect thereto has been waived by the PBGC; (ii) the
provision by the administrator of any Plan of a notice of intent to terminate
such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA); (iii)
the cessation of operations at a facility in the circumstances described in
Section 4062(e) of ERISA; (iv) the withdrawal by the Borrower or an ERISA
Affiliate from a Multiemployer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (v) the failure
by the Borrower or any ERISA Affiliate to make a payment to a Plan required
under Section 302(f)(1) of ERISA, which Section imposes a lien for failure to
make required payments; (vi) the adoption of an amendment to a Plan requiring
the provision of security to such Plan, pursuant to Section 307 of ERISA; or
(vii) the institution by the PBGC of proceedings to terminate a Plan, pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" shall have the meaning assigned to that term
in Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Lending Office" shall mean, with respect to each Lender,
its office, branch or affiliate located at its address set forth on the
signature pages hereof (or identified on the signature pages hereof as its
Eurodollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Eurodollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Eurodollar Rate" shall mean, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an interest rate
per annum equal to the average (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a multiple) of the rate per
annum at which deposits in Dollars are offered by the principal office of each
of the Reference Lenders to prime banks in the London interbank market at 11:00
A.M. (London, England time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Lender's
Eurodollar Rate Advance comprising part of such Borrowing and for a period equal
to such Interest Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference Lenders
two Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 3.2.
"Eurodollar Rate Advance" shall mean an Advance which bears interest is
provided in Section 2.9(b).
"Eurodollar Rate Reserve Percentage", of any Lender for any Interest
Period for any Eurodollar Rate Advance, shall mean the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such Lender
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" shall have the meaning set forth in Section 9.1;
provided that any requirement for notice or lapse of time or both shall have
been satisfied.
"Excess Proceeds" shall have the meaning given to such term in the
Senior Indenture.
"Exempt Asset Sale" shall have the meaning given to such term in the
Senior Indenture.
"FUNB" shall mean First Union National Bank and its successors.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System, or any successor thereto.
"Fee Letter" shall mean the fee letter agreement, dated April 24, 1997,
among the Borrower, NationsBank and NCMI.
"Florimex" shall mean Florimex Worldwide, Inc., a Virginia corporation.
"Foreign Subsidiary" shall mean any Subsidiary of the Borrower (i)
which is organized under the laws of any jurisdiction outside of the United
States of America, (ii) which conducts the major portion of its business outside
of the United States of America and (iii) all or substantially all of the
property and assets of which are located outside of the United States of
America.
"GAAP" shall mean generally accepted accounting principles in the
United States, as set forth from time to time in the opinions and pronouncements
of the Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the accounting profession), which are applicable to the
circumstances as of the date of determination; provided, however, that, in the
event any changes are mandated by any of the accounting authorities noted above,
such changes shall be included in GAAP as applicable to the Borrower (and its
Subsidiaries) only from and after such date as the Borrower and the Required
Lenders shall have amended this Agreement to the extent necessary to reflect any
such changes in the financial covenants set forth in Article VI hereto (and any
related defined terms).
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guarantee" shall mean, with respect to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing, or
making such Person contingently liable for, any Debt or other obligation of any
other Person and, without limiting the generality of the foregoing, includes any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise), (ii)
entered into for the purpose of assuring in any other manner the obligee of such
Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part) or (iii) to reimburse any
bank or other Person in respect of amounts paid or payable under letters of
credit surety and appeal bonds and performance bonds or similar instruments
assuring any other Person of the performance of any act or acts or the payment
of any obligation; provided, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" shall mean, collectively, (i) each of DIMON International
and Florimex, which will become parties to the Subsidiary Guaranty on the
Closing Date; and (ii) each of the other Material Domestic Subsidiaries of the
Borrower which becomes a party to the Subsidiary Guaranty pursuant to Section
7.7 hereof.
"Hazardous Materials" shall mean (i) those substances defined in or
regulated as toxic or hazardous under the following federal statutes and their
state counterparts, as well as the statutes' implementing regulations, as
amended from time to time: the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act; the Comprehensive Environmental
Response, Compensation and Liability Act; the Clean Water Act; the Safe Drinking
Water Act; the Toxic Substances Control Act; the Federal Insecticide, Fungicide
and Rodenticide Act; the Federal Food, Drug, and Cosmetic Act; and the Clean Air
Act; and (ii) any pollutant, contaminant or other substance with respect to
which a Governmental Authority requires environmental investigation, monitoring,
reporting or remediation.
"Hostile Acquisition" shall mean any Acquisition involving a tender
offer or proxy contest that has not been recommended or approved by the board of
directors of the Person that is the subject of the Acquisition prior to the
first public announcement or disclosure relating to such Acquisition.
"Insolvency Proceeding" shall mean (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in the case of each of clauses (a) and (b), undertaken under U.S.
federal, state or foreign law, including the Bankruptcy Reform Act of 1978 (12
U.S.C. ss. 101, et seq.), as amended.
"Insufficiency" shall mean, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Intabex" shall mean Intabex Holdings Worldwide S.A., a Luxembourg
holding company.
"Interest Period" shall mean, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date of such
Advance or the date of the Conversion of any Base Rate Advance into a Eurodollar
Rate Advance or of the Continuation of a Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be one, two, three or six months, in each case as the
Borrower may, upon notice received by the Administrative Agent not later than
11:00 A.M. (Charlotte, North Carolina time) on the second Business Day prior to
the first day of such Interest Period, select; provided, that:
(i) no Interest Period may extend beyond the Termination Date;
(ii) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided, that if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) there shall not be more than five (5) Interest Periods
under this Agreement in effect at any time.
"Investment" shall mean, with respect to any Person, any investment by
that Person in any other Person, whether by means of the purchase or other
acquisition of any stock, evidence of indebtedness or other security of such
Person, the making of any loan, advance, guarantee or contribution of capital to
such Person, or the purchase of any other debt or equity participation or
interest in such Person, in each case other than an Acquisition. Each Investment
shall be valued as of the date made; provided that any Investment or portion of
an Investment consisting of Debt shall be valued at the outstanding principal
balance thereof as of the date of determination.
"IRS" shall mean the Internal Revenue Service, an agency of the United
States government, or any successor thereto.
"Legal Defeasance" shall mean an election by the Borrower under the
Senior Indenture to discharge the obligations of the Borrower and the guarantors
of the Senior Debt Securities under or in respect of the Senior Debt Securities.
"Lender" shall have the meaning assigned to such term in the heading
hereof.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the UCC or any comparable law) and any contingent
or other agreement to provide any of the foregoing, but not including the
interest of a lessor under an Operating Lease.
"Loan Documents" shall mean a collective reference to this Agreement,
the Notes, the Subsidiary Guaranty, the Fee Letter, each Notice of Borrowing,
each Notice of Continuation/Conversion and all documents delivered to the
Administrative Agent, the Documentation Agent, the Co-Agents or the Lenders in
connection therewith.
"Margin Stock" shall mean margin stock, as such term is defined in
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" shall mean (a) a material adverse change in,
or a material adverse effect, at such time or in the future, in or upon the
operations, business, properties or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Borrower or any Guarantor to perform its obligations under any
Loan Document to which it is a party; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability of any Loan Document.
"Material Domestic Subsidiary" shall mean any Subsidiary of the
Borrower which is organized under the laws of the United States, any state
thereof or the District of Columbia and would constitute a "significant
subsidiary" of the Borrower as defined in Rule 1.02 of Regulation S-X
promulgated by the Securities and Exchange Commission except that for purposes
of this definition all references in such Rule 1.02 to "ten percent (10%)" shall
be deemed to be references to "five percent (5%)".
"Material Foreign Subsidiary" shall mean each Foreign Subsidiary which
constitutes a "significant subsidiary" as such term is defined in Rule 1.02 of
Regulation S-X promulgated by the Securities and Exchange Commission.
"Material Subsidiary" shall mean, collectively, each of the Material
Domestic Subsidiaries and the Material Foreign Subsidiaries.
"Monk Family" shall have the meaning assigned to such term in the
Senior Indenture.
"Multiemployer Plan" shall mean a "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA) to which the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate is or has been obligated to contribute.
"NationsBank" shall mean NationsBank, N.A., and its successors.
"NCMI" shall mean NationsBanc Capital Markets, Inc., and its
successors.
"Net Proceeds" shall have the meaning given to such term in the Senior
Indenture.
"Note" shall mean a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit C hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Advances made by such Lender.
"Notice of Borrowing" shall mean a notice from the Borrower to the
Administrative Agent substantially in the form of Exhibit D.
"Notice of Continuation/Conversion" shall mean a notice from the
Borrower to the Administrative Agent substantially in the form of Exhibit E.
"Obligations" shall mean all present and future indebtedness,
liabilities and obligations of the Borrower and each of the Guarantors owing to
the Administrative Agent, any Lender, or any Person entitled to indemnification
pursuant to Section 11.3, or any of their respective successors, permitted
transferees or permitted assigns, arising under or in connection with this
Agreement, the Notes, the Subsidiary Guaranty, the Fee Letter or any other Loan
Document.
"Operating Lease" shall mean any lease which is not a Capital Lease.
"Other Taxes" shall have the meaning set forth in Section 3.5(b).
"Payment Office" shall mean the office of the Administrative Agent set
forth on the Administrative Agent's signature page to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permitted Liens" shall mean the Liens referred to in clauses (a)
through (m) of Section 8.1.
"Person" shall mean an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" shall mean any "employee pension benefit plan" (as defined in
section 3(2) of ERISA) maintained by or on behalf of the Borrower or any ERISA
Affiliate or to which the Borrower or any ERISA Affiliate is obligated to
contribute for any employees or former employees of the Borrower or any ERISA
Affiliate and which is subject to the provisions of Title IV Of ERISA (including
a Multiemployer Plan).
"Pro Forma Basis" means, with respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the four
fiscal-quarter period ending as of the last day of the most recent fiscal
quarter preceding the date of such transaction with respect to which the
Administrative Agent and the Lenders shall have received the financial
statements referred to in Section 7.1(a) or (b), as applicable. As used herein,
"transaction" means (i) any incurrence, assumption or retirement of Debt as
referred to in Section 8.2, (ii) any corporate merger or consolidation as
referred to in Section 8.4 or (iii) any Investment as referred to in Section
8.5(n). With respect to any transaction of the type described in clause (i)
above regarding Debt which has a floating or formula rate, the implied rate of
interest for such Debt for the applicable period for purposes of this definition
shall be determined by utilizing the rate which is or would be in effect with
respect to such Debt as at the relevant date of determination.
"Rabobank" shall mean Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland," New York Branch, and its successors.
"Reference Lenders" shall mean NationsBank, FUNB, Rabobank and SocGen
and each such other Lender as may be appointed pursuant to Section 11.5(j).
"Register" shall have the meaning given such term in Section 11.5(c).
"Reportable Event" means any of the reportable events described in
Section 4043 of ERISA.
"Requirement of Law" shall mean, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Required Lenders" shall mean at any time Lenders holding at least 51%
of the aggregate unpaid principal amount of the Notes or, if no Advances are at
the time outstanding hereunder, Lenders having at least 51% of the Aggregate
Commitment.
"Responsible Officer" shall mean any of the president, chief executive
officer, chief financial officer, chief accounting officer, treasurer, executive
vice presidents or senior vice presidents of the Borrower.
"Securities Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Senior Debt Securities" shall mean any one of the 8 7/8% Senior Notes
Due 2006, in an aggregate principal amount of $125,000,000, issued by the
Borrower pursuant to the Senior Indenture, as such Senior Debt Securities may be
supplemented, amended or otherwise modified from time to time.
"Senior Indenture" shall mean that certain Indenture, dated as of May
29, 1996, by and among the Borrower, as issuer, DIMON International and
Florimex, as guarantors, and Crestar Bank, as trustee, as supplemented, amended
or otherwise modified from time to time.
"SocGen" shall mean Societe Generale and its successors.
"Solvent" shall mean, as to the Borrower or any Guarantor at any time,
that (i) each of the fair value and the present fair saleable value of such
Person's assets (including any rights of subrogation or contribution to which
such Person is entitled, under any of the Loan Documents or otherwise) is
greater than such Person's debts and other liabilities (including contingent,
matured and unliquidated debts and liabilities) and the maximum estimated amount
required to pay such debts and liabilities as such debt and liabilities mature
or otherwise become payable; (ii) such Person is able and expects to be able to
pay its debts and other liabilities (including, without limitation, contingent,
unmatured and unliquidated debts and liabilities) as they mature; and (iii) such
Person does not have unreasonably small capital to carry on its business as
conducted and as proposed to be conducted.
"Split-Dollar Agreement" shall mean an agreement between the Borrower
or any of its Subsidiaries and an employee of the Borrower or such Subsidiary
(or one or more affiliates of such employee that shall be the owner of the
policy of life insurance referred to below), pursuant to which the Borrower or
such Subsidiary shall agree to fund non-scheduled premiums under a policy of
insurance on the life of such employee and such employee (or such affiliate or
affiliates) shall agree to reimburse the Borrower or such Subsidiary for such
non-scheduled premiums upon the termination of such agreement.
"Split-Dollar Assignment" shall mean a collateral assignment executed
and delivered in connection with a Split-Dollar Program by an employee of the
Borrower or one of its Subsidiaries (or one or more affiliates of such employee
that shall be the owner of the policy of life insurance referred to below), by
which such employee (or such affiliate or affiliates), as collateral security
for such employee's (or such affiliate's or affiliates') obligations under the
Split-Dollar Agreement executed and delivered in connection with such
Split-Dollar Program, assigns to the Borrower or such Subsidiary the policy of
insurance on the life of such employee contemplated by such Split-Dollar
Agreement.
"Split-Dollar Program" shall mean an arrangement, established under a
Split-Dollar Agreement between the Borrower or any of its Subsidiaries and an
employee thereof (or one or more affiliates of such employee), whereby the
Borrower or such Subsidiary establishes a split-dollar life insurance program
for the benefit of such employee and agrees to pay non-scheduled premiums under
the life insurance policy issued in connection therewith, subject to the
obligation of such employee (or such affiliate or affiliates) to reimburse the
aggregate amount of such nonscheduled premiums upon the termination of such
program.
"Subordinated Debt Securities" shall mean any one of the 6 1/4%
Convertible Subordinated Debentures due March 31, 2007, in an aggregate
principal amount of $140,000,000, issued by the Borrower pursuant to the
Subordinated Indenture, as such Subordinated Debt Securities may be
supplemented, amended or otherwise modified from time to time.
"Subordinated Indenture" shall mean that certain Indenture, dated as of
April 1, 1997, by and among the Borrower and LaSalle National Bank, as trustee,
as supplemented, amended or otherwise modified from time to time.
"Subsidiary" shall mean any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Subsidiary Guaranty" shall mean that certain continuing guaranty to be
executed and delivered by each of the Material Domestic Subsidiaries of the
Borrower, in substantially the form of Exhibit B attached hereto, guaranteeing
all of the Obligations, subject to the limitations set forth therein, as
hereafter amended, modified or supplemented.
"Taxes" shall have the meaning set forth in Section 3.5(a).
"Termination Date" shall mean the earlier to occur of (i) June 27, 2000
or such later anniversary thereof as the Commitments may have extended by the
Lenders pursuant to Section 2.8, or (ii) the date of termination in whole of the
Aggregate Commitment pursuant to Section 2.5 or 9.2.
"UCC" shall mean the Uniform Commercial Code as in effect in the
Commonwealth of Virginia from time to time.
"Unutilized Commitment" shall mean, with respect to each Lender as of
any date, an amount equal to (i) the Commitment of such Lender as of such date,
minus (ii) the aggregate principal amount of such Lender's Advances outstanding
on such date.
"Voting Stock" shall mean, at any time, all classes of capital stock of
the Borrower then outstanding and normally entitled to vote in the election of
directors.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding capital stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or, in
the case of Subsidiaries that are not organized under the laws of the United
States of America, one of the fifty states thereof or the District of Columbia,
by one or more nominees of such Person.
"Withdrawal Liability" shall have the meaning given such term under
Part 1 of Subtitle E of Title IV of ERISA.
Section 1.2 Other Interpretative Provisions.
(a) Defined Terms. Unless otherwise specified herein or
therein, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or
delivered pursuant hereto. The meaning of defined terms shall be
equally applicable to the singular and plural forms of the defined
terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
(b) This Agreement. The words "hereof", "herein", "hereunder"
and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement; and, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures,
notices and other writings, however evidenced.
(ii) The term "including" is not limiting and
means including without limitation.
(d) Performance; Time. Whenever any performance obligation
hereunder (other than a payment obligation) shall be stated to be due
or required to be satisfied on a day other than a Business Day, such
performance shall be made or satisfied on the next succeeding Business
Day. In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the
words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including". If any provision of this Agreement
refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be interpreted
to encompass any and all means, direct or indirect, of taking, or not
taking, such action.
(e) Contracts. Unless otherwise expressly provided herein,
references to agreements and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications
thereto, but only to the extent such amendments and other modifications
are not prohibited by the terms of any Loan Document.
(f) Laws. References to any statute or regulation are to be
construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(g) Captions. The captions and headings of this Agreement are
for convenience of reference only and shall not affect the
interpretation of this Agreement.
(h) Independence of Provisions. The parties acknowledge that
this Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar
matters, and that such limitations, tests and measurements are
cumulative and must each be performed, except as expressly stated to
the contrary in this Agreement.
Section 1.3 Accounting Terms and Determinations.
(a) Unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP as in
effect from time to time, applied on a basis consistent (except for
changes concurred in by the Borrower's Approved Accounting Firm) with
the audited consolidated financial statements of the Borrower and its
Subsidiaries for the fiscal year ended June 30, 1996; provided, that if
any change in GAAP after June 30, 1996 in itself materially affects the
calculation of any financial covenant in Article VI, the Borrower may
by notice to the Administrative Agent, or the Administrative Agent (at
the request of the Required Lenders) may by notice to the Borrower,
require that such covenant thereafter be calculated in accordance with
GAAP as in effect, and applied by the Borrower, immediately before such
change in GAAP occurs. If such notice is given, the compliance
certificates delivered pursuant to Section 7.1 after such change occurs
shall be accompanied by reconciliations of the difference between the
calculations set forth therein and a calculation made in accordance
with GAAP as in effect from time to time after such change occurs.
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Borrower unless the context clearly
indicates otherwise.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.1 The Advances.
Each Lender severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to this Borrower from time to time on any Business
Day during the period from the Closing Date until the Termination Date in an
aggregate amount not to exceed at any time outstanding the amount set forth on
such Lender's signature page hereto under the heading "Commitment," as such
amount may be increased pursuant to Section 2.8, reduced pursuant to Section 2.5
or increased or reduced as a result of one or more assignments pursuant to
Section 11.5 (such amount, as increased or reduced, hereinafter referred to as
such Lender's "Commitment"); provided, however, that after giving effect to any
Borrowing, the aggregate principal amount of all outstanding Borrowings shall
not exceed the Aggregate Commitment. Each Borrowing shall consist of Advances of
the same Type made on the same day by the Lenders ratably according to their
respective Commitment Percentages. Within the limits of each Lender's
Commitment, and subject to the other terms and conditions of this Agreement, the
Borrower may borrow, prepay pursuant to Section 2.6 and reborrow pursuant to
this Section 2.1.
Section 2.2 Evidence of Debt.
(a) The Advances made by each Lender pursuant to its
Commitment shall be evidenced by a Note payable to the order of that
Lender in an amount equal to its Commitment and, in accordance with the
provisions of this Section 2.2, by the books and records of the
Administrative Agent and the Lenders.
(b) Each Lender shall maintain an account or accounts
evidencing each Advance made by such Lender to the Borrower from time
to time, including the amounts of principal and interest payable and
paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to Section 11.5(c), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the
amount, type and Interest Period of each such Advance hereunder, (ii)
the amount of any principal or interest due and payable or to become
due and payable to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder from or for the
account of the Borrower and each Lender's share thereof.
(d) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (c) of this Section 2.2 (and, if
consistent with the entries of the Administrative Agent, subsection
(b)) shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that
any error or omission in such account, such Register or such
subaccount, as applicable, shall not in any manner affect the
obligation of the Borrower to repay the Advances made by such Lender in
accordance with the terms hereof.
Section 2.3 Making the Advances.
(a) Each Borrowing shall be made upon the Borrower's prior
written notice delivered to the Administrative Agent in accordance with
Section 11.1 in the form of a Notice of Borrowing (which notice of
Borrowing must be received by the Administrative Agent prior to 11:00
A.M. (Charlotte, North Carolina time) (x) three Business Days prior to
the requested date of the Borrowing, in the case of a Borrowing
comprised of Eurodollar Rate Advances; and (y) on the requested, date
of the Borrowing, in the case of a Borrowing comprised of Base Rate
Advances, and shall be irrevocable upon receipt by the Administrative
Agent), specifying:
(i) the amount of the Borrowing, which shall be
in an aggregate minimum principal amount of Ten Million
Dollars ($10,000,000) or any integral multiple of One Million
Dollars ($1,000,000) in excess thereof;
(ii) the requested Business Day on which the
Borrowing is to be made;
(iii) whether the Borrowing is to be comprised
of Eurodollar Rate Advances, or Base Rate Advances; and
(iv) in the case of a Borrowing comprised of
Eurodollar Rate Advances, the duration of the Interest Period
applicable to such Borrowing. If the Notice of Borrowing shall
fail to specify the duration of the Interest Period for any
Borrowing comprised of Eurodollar Rate Advances, such Interest
Period shall be one month.
(b) Upon receipt of the Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender thereof and of
the amount of such Lender's Advance.
(c) Each Lender will make the amount of its Advance available
to the Administrative Agent through such Lender's Applicable Lending
Office for the account of the Borrower at the Administrative Agent's
Payment Office by 1:00 P.M. (Charlotte, North Carolina time) on the
date for such Borrowing requested by the Borrower in funds immediately
available to the Administrative Agent in Dollars. Subject to the
requirements of Article IV, the proceeds of all such Borrowings will
then be made available to the Borrower by the Administrative Agent at
such office by crediting the account of the Borrower on the books of
the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds
as received by the Administrative Agent.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will
not make available to the Administrative Agent the amount of such
Lender's Advance, the Administrative Agent may (but shall not be
required to) assume that such Lender has made such amount available to
the Administrative Agent on the date of such Borrowing in accordance
with Section 2.3(c), and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not
have so made such amount available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount, together with
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at the time to the Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate on each
such day. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make its Advance in
connection with any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Advance to be made by such other Lender on the
date of any Borrowing.
(f) Unless the Required Lenders shall otherwise agree, during
the existence of a Default or an Event of Default, the Borrower may not
elect to have a Borrowing be made as, or Converted into or Continued
as, a Borrowing comprised of Eurodollar Rate Advances.
Section 2.4 Conversion and Continuation Elections.
(a) The Borrower may, upon written notice to the
Administrative Agent in accordance with Section 2.4(b):
(i) elect to Convert on any Business Day any Borrowing
comprised of Base Rate Advances (or any part thereof in an
aggregate minimum principal amount of $10,000,000 or any
integral multiple of $1,000,000 in excess thereof) into a
Borrowing comprised of Eurodollar Rate Advances; or
(ii) elect to Convert on the last day of the
applicable Interest Period any Borrowing comprised of
Eurodollar Rate Advances having Interest Periods maturing on
such day (or any part thereof in an aggregate minimum
principal amount of $10,000,000 or any integral multiple of
$1,000,000 in excess thereof) into a Borrowing comprised of
Base Rate Advances; or
(iii) elect to Continue on the last day of the
applicable Interest Period any Borrowing comprised of
Eurodollar Rate Advances having Interest Periods maturing on
such day (or any part thereof in an aggregate minimum
principal amount of $10,000,000 or any integral multiple of
$1,000,000 in excess thereof).
(b) The Borrower shall deliver a Notice of
Continuation/Conversion in accordance with Section 11.1 (which Notice
of Continuation/Conversion must be received by the Administrative Agent
not later than 11:00 A.M. (Charlotte, North Carolina time) at least (x)
three Business Days in advance of the date of Conversion or
Continuation, as applicable, if the Advances are to be Converted into
or Continued as Eurodollar Rate Advances; and (y) on the date of
Conversion if the Advances are to be Converted into Base Rate Advances,
and shall be irrevocable upon receipt by the Administrative Agent),
specifying:
(i) the proposed date of Conversion or
Continuation, as applicable;
(ii) the aggregate amount of the Borrowing or
part thereof to be Converted or Continued;
(iii) the nature of the proposed Conversion or
Continuation; and
(iv) except in the case of the Conversion of
Eurodollar Rate Advances into Base Rate Advances, the duration
of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to a Borrowing comprised of Eurodollar Rate Advances, the Borrower has
failed to select timely a new Interest Period to be applicable to such
Borrowing, the Borrower shall be deemed to have elected to Convert such
Borrowing into a Borrowing comprised of Base Rate Advances effective as
of the expiration of such current Interest Period.
(d) Upon receipt of a Notice of Continuation/Conversion, the
Administrative Agent will thereafter promptly notify each Lender
thereof, or, if no timely notice is provided by the Borrower with
respect to a Borrowing comprised of Eurodollar Rate Advances subject to
an expiring Interest Period, the Administrative Agent will promptly
notify each Lender of the automatic Conversion of such Advances to Base
Rate Advances.
Section 2.5 Termination or Reduction of Commitments.
(a) Voluntary. The Borrower may, upon not less than three Business
Days' prior notice to the Administrative Agent, terminate the Aggregate
Commitment or permanently reduce the Aggregate Commitment by an aggregate
minimum amount of $10,000,000 or any integral multiple of $1,000,000 in excess
thereof; provided, that, no such reduction or termination shall be permitted if,
after giving effect thereto and to any prepayments of the Borrowings made on the
effective date thereof, the then-outstanding principal amount of the Borrowings
would exceed the amount of the Aggregate Commitment then in effect and,
provided, further, that once reduced in accordance with this Section 2.5, the
Aggregate Commitment may not be increased.
(b) Mandatory. On any date that the Advances are required to be prepaid
and the Commitments are required to be reduced pursuant to the terms of Section
2.6(b), the Aggregate Commitment automatically shall be permanently reduced
(without duplication) by the amount of such required prepayment and reduction.
(c) General. Any reduction of the Aggregate Commitment shall be applied
to each Lender's Commitment in accordance with such Lender's Commitment
Percentage. All commitment fees accrued to, but not including, the effective
date of any reduction or termination of the Aggregate Commitment shall be paid
on the effective date of such reduction or termination.
Section 2.6 Prepayments.
(a) Optional. Subject to Section 3.4, the Borrower may, at any time or
from time to time, upon at least three (3) Business Days' notice with respect to
Borrowings comprised of Eurodollar Rate Advances, and same Business Day's notice
with respect to Borrowings comprised of Base Rate Advances, to the
Administrative Agent received by 11:00 A.M. (Charlotte, North Carolina time),
ratably prepay Borrowings in whole or in part, in amounts of $10,000,000 or any
integral multiple of $1,000,000 in excess thereof, together with interest
thereon and (in the case of a prepayment of any Borrowings comprised of
Eurodollar Rate Advances on a day that is not the last day of the Interest
Period applicable thereto) any cost, loss or expense specified in Section 3.6.
Such notice of prepayment shall specify the date and amount of such prepayment
and whether such prepayment is of Borrowings comprised of Base Rate Advances, or
Borrowings comprised of Eurodollar Rate Advances, or any combination thereof.
Such notice shall not thereafter be revocable by the Borrower and the
Administrative Agent will promptly notify each Lender thereof and of the amount
of such Lender's Commitment Percentage of such prepayment. If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on the amount prepaid
and (in the case of a prepayment of any Borrowings comprised of Eurodollar Rate
Advances on a day that is not the last day of the Interest Period applicable
thereto) any amounts required pursuant to Section 3.6.
(b) Mandatory. In the event that Borrower or any of its Subsidiaries
intends to make any Asset Sale (other than an Exempt Asset Sale) that would
involve an aggregate sale price (including cash and non-cash consideration) in
excess of 10% of Consolidated Total Assets as of the most recent fiscal year end
with respect to which the Administrative Agent and the Lenders shall have
received the financial statements referred to in Section 7.1(a)(i):
(i) the Borrower will give the Administrative Agent, not
later than the date of such Asset Sale, written notice thereof
specifying the manner in which the Borrower intends to apply the Net
Proceeds of such Asset Sale, and, in the event that the Borrower elects
to make a voluntary prepayment, repurchase, redemption or retirement of
any of the Senior Debt Securities with any of such Net Proceeds, then,
at the request of the Required Lenders, the Borrower shall
simultaneously pay or prepay the outstanding Advances, if any, and
reduce the Commitments, in the amount specified by the Required
Lenders, such amount in any event not to exceed the amount equal to the
percentage of the Net Proceeds applied or to be applied to such
voluntary prepayment, repurchase, redemption or retirement of Senior
Debt Securities obtained by dividing (1) the then current Aggregate
Commitment by (2) the sum of (x) the aggregate then outstanding
principal amount of all Senior Debt Securities plus (y) the then
current Aggregate Commitment; and
(ii) if the Borrower shall not previously have made any
payment or prepayment of the Advances with the Net Proceeds of such
Asset Sale pursuant to the terms of clause (i) above, the Borrower will
give the Administrative Agent, not later than the date which is 250
days after the date of such Asset Sale, written notice specifying the
amount of the Net Proceeds of such Asset Sale which, on the date which
is 270 days after the date of such Asset Sale, are expected by the
Borrower to become Excess Proceeds, then, at the request of the
Required Lenders, the Borrower shall, simultaneously with the purchase
of any Senior Debt Securities pursuant to the Senior Indenture, pay or
prepay the outstanding Advances, if any, and reduce the Commitments, in
the amount specified by the Required Lenders, such amount in any event
not to exceed the amount equal to the percentage of the Net Proceeds of
such Asset Sale exceeding $10,000,000.00 obtained by dividing (1) the
then current Aggregate Commitment by (2) the sum of (x) the aggregate
then outstanding principal amount of all Senior Debt Securities plus
(y) the Aggregate Commitment; and
The Administrative Agent hereby agrees to promptly notify each of the Lenders of
receipt by the Administrative Agent of any notice from the Borrower pursuant to
this Section 2.6(b).
Payments and prepayments pursuant to this Section 2.6(b) shall be applied, first
to Base Rate Advances and then to Eurodollar Rate Advances in direct order of
Interest Period maturities.
(c) General. All prepayments of Advances shall be subject to Section
3.6 but otherwise without premium or penalty and shall be accompanied by accrued
interest on the principal amount being prepaid to the date of prepayment and all
other amounts due and payable hereunder with respect to such Loans.
Section 2.7 Repayment of the Obligations.
The Borrower shall repay in full the aggregate outstanding Obligations
on the Termination Date.
Section 2.8 Extension of Termination Date.
(a) The Borrower may request an extension of the initial
Termination Date, or if previously extended, the then-applicable
Termination Date, for an additional twelve (12) month period in the
case of each such extension by delivering an irrevocable written notice
to the Administrative Agent, accompanied by projections prepared by the
Borrower with respect to such extension period containing such
information as may be reasonably requested by the Administrative Agent
(which notice, together with such projections, shall promptly be
forwarded by the Administrative Agent to the Lenders), not more than
one hundred twenty (120) nor less than ninety (90) days prior to the
anniversary of the Closing Date that precedes the then-effective
Termination Date by one year (any such request, an "Extension
Request"). Upon receipt of such Extension Request, each Lender shall
respond to the Borrower and the Administrative Agent in writing no
later than sixty (60) days prior to such anniversary of the Closing
Date, either irrevocably consenting to such Extension Request or
declining to extend such Lender's Commitment. Any determination by any
Lender to consent to an extension of the Termination Date shall be in
its sole and absolute discretion and, subject to receipt by the
Borrower and the Administrative Agent of such consent, there shall be
no obligation on the part of any Lender hereunder, whether express or
implied, to extend the Termination Date. Any Lender which fails to
respond by the date set forth above shall be deemed to have declined
the Extension Request. Upon receipt of the written consent to such
Extension Request by the Borrower and the Administrative Agent from
Lenders holding 100% of the Aggregate Commitment, the Administrative
Agent shall notify the Borrower and the Lenders that the Termination
Date has been extended for an additional twelve (12) month period.
(b) In the event any Lender shall fail to consent to an
Extension Request within the time provided in paragraph (a) above (each
such Lender, a "Non-Extending Lender"), the Borrower may obtain one or
more other Lenders or, with the consent of the Administrative Agent,
one or more other Eligible Assignees willing to replace such
Non-Extending Lender (each such Eligible Assignee, a "Replacement
Lender"); provided, that, any replacement must occur on or prior to the
anniversary of the Closing Date that precedes the then-effective
Termination Date by one year. Any Non-Extending Lender that is being
replaced shall assign its Advances and its Commitment hereunder to any
Replacement Lender upon not less than five (5) days' prior written
notice from the Borrower in accordance with the assignment procedure
set forth in Section 11.5 hereof; provided that the Borrower shall pay
the administrative fee for such assignment to the Administrative Agent
specified in Section 11.5. Upon receipt of duly executed Assignment and
Acceptances with respect to the Commitments and outstanding Advances of
each Non-Extending Lender and the satisfaction of the conditions set
forth therein and in Section 11.5, the Administrative Agent shall
notify the Borrower and the Lenders that the Termination Date has been
extended for an additional twelve (12) month period.
(c) If the Borrower does not replace each Non-Extending Lender
with one or more Replacement Lenders assuming all of the Advances and
Commitments of such Non-Extending Lenders by the anniversary of the
Closing Date that precedes the then-Effective Termination Date by one
year, the Termination Date shall not be extended beyond its
then-existing date unless the Borrower, the Administrative Agent and
each of the Lenders (other than any Non-Extending Lenders) shall
otherwise agree; provided that, the Non-Extending Lenders shall not be
bound by any such agreement.
Section 2.9 Interest.
The Borrower shall pay interest on the unpaid principal amount of each
Advance made by each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(a) Base Rate Advance. During such periods as such Advance is
a Base Rate Advance, a rate per annum at all times equal to the sum of
the Base Rate in effect from time to time plus the Applicable Margin,
payable in arrears (i) quarterly on the last day of each calendar
quarter during such periods, (ii) on the date such Base Rate Advance
shall be Converted or paid in full and (iii) on the Termination Date.
(b) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum at all times
during each Interest Period for such Advance equal to the sum of the
Eurodollar Rate for such Interest Period for such Advance plus the
Applicable Margin, payable in arrears (i) on the last day of such
Interest Period, (ii) if any Interest Period exceeds three months, on
the last day of each three month period comprising such Interest
Period, (iii) on the date such Eurodollar Rate Advance shall be paid in
full and (iv) on the Termination Date.
(c) Interest After Default. While any Event of Default exists
(including after the acceleration of the Obligations), in addition to
paying accrued interest on the outstanding Advances, the Borrower shall
pay interest on the amount of all other outstanding Obligations
(including accrued but unpaid interest to the extent permitted by law)
at a rate per annum equal to the Base Rate plus the Applicable Margin
then in effect for Base Rate Advances. While any Event of Default
exists (including after the acceleration of the Obligations), the
Borrower shall pay interest on all of the Obligations upon demand of
the Administrative Agent and interest shall continue to accrue on the
unpaid Obligations after as well as before entry of judgment thereon to
the extent permitted by law.
Section 2.10 Fees.
The Borrower agrees to pay to the Administrative Agent, for the account
of each Lender, a commitment fee on the average daily Unutilized Commitment of
such Lender, from the date hereof in the case of each Lender named on the
signature pages to this Agreement and from the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender, until the Termination Date, payable quarterly on the last day
of each calendar quarter during the term of such Lender's Commitment, commencing
on September 30, 1997, and on the Termination Date, at the rate equal to (i) one
quarter of one percent (1/4 of 1%) per annum from the Closing Date through the
date on which the Administrative Agent first receives the officer's certificate
to be furnished by the Borrower pursuant to Section 7.1(c) of this Agreement,
and (ii) thereafter, the rate determined by reference to the formula set forth
on Schedule 2.10. The commitment fees provided in this Section 2.10 shall accrue
at all times after the date hereof, including any time during which one or more
conditions in Article IV are not met.
Section 2.11 Payments and Computations.
(a) The Borrower shall make each payment hereunder and under
the Notes not later than 11:00 A.M. (Charlotte, North Carolina time) on
the day when due in Dollars to the Administrative Agent at its Payment
Office in same day funds. The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the payment
of principal or interest or fees ratably in accordance with such
Lender's Commitment Percentage (other than amounts payable pursuant to
Article III) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made by the Borrower pursuant
to the terms hereof, when due hereunder or under the Note held by such
Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of fees shall be made
by the Administrative Agent, and all computations of interest pursuant
to Section 3.1 shall be made by a Lender, on the basis of a year of 360
days, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative
Agent (or, in the case of Section 3.1, by a Lender) of an interest rate
hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of
interest or fees, as the case may be.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date, and the
Administrative Agent may (but shall not be required to), in reliance
upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to
the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount
is distributed to such Lender until the date such Lender repays; such
amount to the Administrative Agent, at the Federal Funds Rate as in
effect for each such day.
Section 2.12 Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances made by it (other than pursuant to Article III) in
excess of its ratable share of payments on account of the Advances obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Advances made by them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such Purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.12 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 2.13 Limitation of Interest.
It is the intention of the parties hereto that each of the Lenders
shall conform strictly to usury laws applicable to it, if any. Accordingly, if
the transactions with the Lenders contemplated hereby would be usurious under
applicable law, if any, then, in that event, notwithstanding anything to the
contrary in the Notes, this Agreement or any other Loan Document it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged or received by
the Lenders under any Note, this Agreement or under any other Loan Document
shall under no circumstances exceed the maximum amount allowed by such
applicable law and any excess shall be canceled automatically, and if
theretofore paid, shall at the option of any Lender be credited by such Lender
on the principal amount of the Obligations owed to such Lender by the Borrower
or refunded by such Lender to the Borrower, and (ii) in the event that the
maturity of any Note or other Obligation payable to any Lender is accelerated or
in the event of any required or permitted prepayment, then such consideration
that constitutes interest under law applicable to any Lender may never include
more than the maximum amount allowed by such applicable law and all interest in
excess of such lawful amount, if any, payable to any Lender under this Agreement
or otherwise shall be canceled automatically as of the date of such acceleration
or prepayment and, if theretofore paid, shall, at the option of any Lender be
credited by such Lender on the principal amount of the Obligations owed to such
Lender by the Borrower or refunded by such Lender to the Borrower.
Section 2.14 Use of Proceeds.
The proceeds of all Advances made hereunder shall be used by the
Borrower for its working capital and general corporate purposes, including
Acquisitions permitted by this Agreement.
ARTICLE III
YIELD PROTECTION, INTEREST RATE
DETERMINATION, TAXES, ETC.
Section 3.1 Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to each Lender, so long as such Lender shall be
required under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance, from the date of such Advance until such principal
amount is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurodollar Rate for each Interest
Period for such Eurodollar Rate Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Lender for such Interest Period, payable on each date
on which interest is payable on such Eurodollar Rate Advance. Such additional
interest shall be determined by such Lender and notified to the Borrower through
the Administrative Agent.
Section 3.2 Interest Rate Determination and Protection.
(a) Each Reference Lender agrees to furnish to the
Administrative Agent timely information for the purpose of determining
each Eurodollar Rate. If any one of the Reference Lenders shall not
furnish such timely information to the Administrative Agent for the
purpose of determining any such Eurodollar Rate, the Administrative
Agent shall determine such Eurodollar Rate on the basis of timely
information furnished by the two remaining Reference Lenders.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by
the Administrative Agent for purposes of Section 2.9(a) or (b), and the
applicable rate, if any, furnished by each Reference Lender for the
purpose of determining the applicable interest rate under Section
2.9(b).
(c) If more than one of the Reference Lenders fails to furnish
timely information to the Administrative Agent for determining the
Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith
notify the Borrower and the Lenders that the interest rate
cannot be determined for such Eurodollar Rate Advances,
(ii) each outstanding Eurodollar Rate Advance
will automatically, on the last day of the then-existing
Interest Period therefor, Convert into a Base Rate Advance,
and
(iii) the obligation of the Lenders to make, or
to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not equal or exceed
the cost to such Required Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the
Lenders, whereupon
(i) each Eurodollar Rate Advance will
automatically, on the last day of the then-existing Interest
Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or
to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(e) On the date on which the aggregate unpaid principal amount
of any Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than
$10,000,000, such Advances shall automatically Convert into Base Rate
Advances, and thereafter, for purposes of prepayment pursuant to
Section 2.6 and Conversion pursuant to Section 2.4, all outstanding
Base Rate Advances shall be deemed to be part of one Borrowing.
Section 3.3 Increased Costs.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve
requirements included in the Eurodollar Rate Reserve Percentage) in or
in the interpretation of any law or regulation, in each case, after the
Closing Date, or (ii) the compliance with any guideline or request from
any Governmental Authority (whether or not having the force of law)
made after the Closing Date, there shall be any increase in the cost to
any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances (except as otherwise provided in Sections 3.1
and 3.5 hereof), then the Borrower shall, within three days after
demand by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such
increased cost.
(b) If any Lender determines that compliance with any law or
regulation enacted or promulgated after the Closing Date or any
guideline or request made after the Closing Date from any Governmental
Authority (whether or not having the force of law and except as
otherwise provided in Section 3.5 hereof) affects or would affect the
amount of capital required or expected to be maintained by such Lender
or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay, within three days after
demand, to the Administrative Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light
of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of
such Lender's commitment to lend hereunder.
Section 3.4 Illegality.
Notwithstanding any other provision of this Agreement, if any Lender
shall notify the Administrative Agent that the introduction of or any change in
or in the interpretation of any law or regulation, in each case, after the
Closing Date, makes it unlawful, or any Governmental Authority asserts that it
is unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist and (ii) the Borrower
shall forthwith prepay in full all Eurodollar Rate Advances of all Lenders then
outstanding, together with interest accrued thereon, unless the Borrower, within
five Business Days of notice from the Administrative Agent, Converts all
Eurodollar Rate Advances of all Lenders then outstanding into Base Rate Advances
in accordance with Section 2.4.
Section 3.5 Taxes.
(a) Any and all payments by the Borrower hereunder or under
the Notes shall be made, in accordance with Section 2.11 free and clear
of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding in the case of each Lender
and the Administrative Agent, taxes imposed on or measured by all or
part of its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or any political subdivision
thereof or, in the case of each Lender, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, 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 hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or
future stamp, documentary or intangibles taxes or any other similar
taxes, charges or levies which arise from any payment made hereunder or
under the Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement, the Notes or any of the
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 3.5) paid by such
Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be
made within thirty (30) days from the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor. The Administrative Agent or any Lender claiming
indemnification pursuant to this Section 3.5(c) shall make written
demand therefor no later than one (1) year after the earlier of (i) the
date on which such Lender or the Administrative Agent makes payment of
such Taxes or Other Taxes and (ii) the date on which the appropriate
Governmental Authority makes written demand on such Lender or the
Administrative Agent for payment of such Taxes or Other Taxes.
(d) If a Lender or the Administrative Agent shall become
entitled to claim a refund, credit or reduction in respect of Taxes or
Other Taxes as to which it has been indemnified by the Borrower, or
with respect to which the Borrower has made payments pursuant to this
Section 3.5, such Lender or the Administrative Agent shall, within
ninety (90) days after receipt of a written request by the Borrower and
at Borrower's sole expense, make an appropriate filing or claim with
the appropriate Governmental Authority to obtain or use such refund,
credit or reduction. Upon a written request of the Borrower, each
Lender or the Administrative Agent shall use reasonable efforts to
cooperate with the Borrower in determining whether or not the
Administrative Agent or such Lender is entitled to such a refund,
credit or reduction. If a Lender or the Administrative Agent receives a
refund or realizes the benefit of a credit or reduction in respect of
any such Taxes or other Taxes (whether or not as a result of a filing
or claim made pursuant to the first sentence of this paragraph), such
Lender or the Administrative Agent shall within ninety (90) days from
the date of such receipt or realization pay over the amount of such
refund, credit or reduction to the Borrower (but only to the extent of
indemnity payments made or other amounts paid by the Borrower under
this Section 3.5 with respect to such Taxes or Other Taxes), net of all
reasonable out-of-pocket expenses of such Lender or the Administrative
Agent and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund, credit or
reduction); provided that the Borrower (upon the written request of
such Lender or the Administrative Agent) agrees to repay the amount
paid over to the Borrower to such Lender or the Administrative Agent
(together with any interest payable to the relevant Governmental
Authority) in the event such Lender or the Administrative Agent is
required to repay such refund, credit or reduction to such Governmental
Authority.
(e) Within forty-five (45) days after the date of any payment
of Taxes by the Borrower, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 11.1, the
original or a certified copy of a receipt (if any) evidencing payment
thereof.
(f) Each Lender that is a non-resident alien or is 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 (or, in the
case of any Person becoming a Lender after the Closing Date, on or
prior to the effective date of the Assignment and Acceptance pursuant
to which it becomes a Lender), from time to time thereafter if
requested in writing by the Borrower, and upon any change in
designation of the Lender's Applicable Lending Office (but only so long
as such Lender remains lawfully able to do so), shall provide each of
the Borrower and the Administrative Agent (i) if such Lender is not a
bank within the meaning of Section 881(c)(3)(A) of the Code, a duly
completed original U.S. Treasury Department Form W-8 (or successor
form) certifying that such Lender is not a United States citizen or
resident (or that such Lender is filing for a foreign corporation,
partnership, estate or trust) and providing the name and address of the
Lender, together with a certificate representing that it is not a bank
within the meaning of Section 881(c)(3)(A) of the Code and is not a ten
percent (10%) shareholder (within the meaning of Section 871(h)(3)(B)
of the Code) with respect to the Borrower, or (ii) if such Lender is a
bank within the meaning of Section 881(c)(3)(A) of the Code, a duly
completed original U.S. Treasury Department Form 4224 or Form 1001 (or
successor form), whichever is applicable, properly claiming complete
exemption from United States withholding tax on payments by the
Borrower pursuant to this Agreement and under the Notes.
(g) The Borrower shall not be required to indemnify any Lender
or the Administrative Agent, or to pay any other amount to any such
Lender, in respect of any Tax pursuant to this Section 3.5 to the
extent that: (i) in the case of a Lender that is a non-resident alien
or is organized under the laws of a jurisdiction outside the United
States, the obligation to make such indemnification or to pay such
other amount would not have arisen but for a failure by such
non-resident Lender to comply with the provisions of Section 3.5(f),
unless such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided;
provided, however, that should a Lender be subject to withholding Tax
because of such failure, the Borrower shall take such steps (at
Lender's expense) as the Lender shall reasonably request in writing to
assist the Lender to recover such Tax; or (ii) such Tax was applicable
on the date such Lender or Administrative Agent became a party to this
Agreement or, with respect to payments to a new Applicable Lending
Office, the date such Lender designated such Applicable Lending Office;
provided, however, that this clause (ii) shall not apply to any Lender
or new Applicable Lending Office that becomes a Lender or Applicable
Lending Office as a result of an assignment or designation made at the
request of the Borrower, and provided further that this clause (ii)
shall not apply to the extent the indemnity payment or other amount any
transferee Lender, or a Lender through a new Applicable Lending Office,
would be entitled to receive does not exceed the indemnity payment or
other amount that the Lender making the assignment, or making the
designation of such new Applicable Lending Office, would have been
entitled to receive in the absence of such assignment or designation.
(h) Subject to Section 3.8, in the event that a Lender that
originally provided such form as may be required under Section 3.5(f)
thereafter ceases to qualify for complete exemption from United States
withholding tax, such Lender may assign its interest under this
Agreement to any Eligible Assignee in accordance with Section 11.5 and
such Eligible Assignee shall be entitled to the same benefits under
this Section 3.5 as the assignor provided that the rate of United
States withholding tax (and the rate of any Taxes or Other Taxes)
applicable to such Eligible Assignee shall not exceed the rate then
applicable to the assignor.
Section 3.6 Funding Losses.
The Borrower agrees to reimburse each Lender and to hold each Lender
harmless from any loss or expense (including loss of anticipated profits) which
the Lender may sustain or incur as a consequence of:
(a) the failure of the Borrower to borrow, or to Continue or
Convert to a Borrowing comprised of Eurodollar Rate Advances after the
Borrower has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Continuation/Conversion;
(b) the failure of the Borrower to make any prepayment after
the Borrower has given a notice in accordance with Section 2.6;
(c) the payment or prepayment (including pursuant to Section
2.6) of a Borrowing comprised of Eurodollar Rate Advances on a day
which is not the last day of the Interest Period with respect thereto;
or
(d) the Conversion of any Borrowing comprised of Eurodollar
Rate Advances to a Borrowing comprised of Base Rate Advances on a day
that is not the last day of the respective Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Advances hereunder or
from fees payable to terminate the deposits from which such funds were obtained.
Solely for purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.6 and under Section 3.3(a), each Eurodollar Rate
Advance made by a Lender (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the Eurodollar
Rate used in determining the rate of interest for such Eurodollar Rate Advance
by a matching deposit or other borrowing in the London interbank market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Advance is in fact so funded.
Section 3.7 Certificates of Lenders.
(a) Any Lender claiming reimbursement or compensation pursuant
to this Article III shall deliver to the Borrower (with a copy to the
Administrative Agent) a certificate setting forth in reasonable detail
the amount payable to such Lender hereunder and such certificate shall
be prima facie evidence of the amount of compensation due to such
Lender in the absence of manifest error.
(b) Prior to giving such certificate to the Administrative
Agent pursuant to Sections 3.1, 3.3, or 3.5, or notifying the
Administrative Agent pursuant to Section 3.4 that such Lender is unable
to make Eurodollar Advances, the affected Lender shall designate a
different Applicable Lending Office if such designation would eliminate
the need to give such certificate or certification and would not, in
the judgment of such Lender, be illegal or otherwise disadvantageous to
such Lender.
(c) Any Lender claiming reimbursement or compensation pursuant
to Section 3.3 shall deliver the demand required by Section 3.3(a) or
(b), as applicable, in the form of the certificate described in
paragraph (a) no later than one (1) year after such Lender obtains
knowledge of such additional cost, and if any Lender fails to give
notice to the Borrower within such period, the Borrower shall have no
obligation to pay any amount accrued prior to the date which is one
year prior to delivery of such certificate.
Section 3.8 Replacement of a Lender.
If the Borrower shall: (i) as a result of the requirements of Sections
3.1, 3.3 or 3.5, be required to pay any Lender the additional interest referred
to in such Section 3.1, the additional costs referred to in such Section 3.3 or
the Taxes or Other Taxes referred to in such Section 3.5, which interests, costs
or taxes are not imposed by all of the other Lenders, and the Borrower deems
such additional amounts to be material; (ii) as a result of the requirements of
Section 3.4, be required to prepay all Eurodollar Rate Advances; or (iii) as a
result of the failure of any Lender to make available to the Administrative
Agent the amount of such Lenders Advance, be required to repay to the
Administrative Agent such corresponding amount pursuant to Section 2.3(d)
hereof, then, in each case, the Borrower may obtain one or more other Lenders
or, with the consent of the Administrative Agent, one or more other Eligible
Assignees willing to replace such Lender, and such Lender shall execute and
deliver to such Eligible Assignee an Assignment and Acceptance with respect to
such Lender's entire interest under this Agreement and the Notes, and upon the
execution by such Eligible Assignee of such Assignment and Acceptance and
compliance with the requirements of Section 11.5 hereof, such Eligible Assignee
shall succeed to all of such Lender's rights and duties under this Agreement. If
the Borrower exercises its election under this Section 3.8 to replace a Lender,
the Borrower shall pay the administrative fee payable to the Administrative
Agent under Section 11.5 hereof.
Section 3.9 Survival.
The agreements and obligations of the Borrower in this Article III
shall survive the payment of all other Obligations and the termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions of Initial Borrowing.
The obligation of each Lender to make its initial Advance hereunder is
subject to the satisfaction, prior to or simultaneously with the making of such
Advance, of the following conditions:
(a) This Agreement. The Administrative Agent shall have
received, on or before the Closing Date, counterparts of this Agreement
executed by the Borrower, the Documentation Agent, the Co-Agents and
each of the Lenders in the manner specified in Section 11.9 hereof, in
sufficient numbers so that each Lender shall retain a counterpart
thereof.
(b) Other Documents. The Administrative Agent shall have
received, on or before the Closing Date, the following, each dated as
of such date, in form and substance satisfactory to the Administrative
Agent and in sufficient copies (except for the Notes) for each Lender:
(i) Notes. The Notes, payable to the order of
each of the Lenders, duly executed by the Borrower;
(ii) Subsidiary Guaranty. The Subsidiary
Guaranty, duly executed by each of the Guarantors;
(iii) Resolutions; Incumbency.
(A) copies of the resolutions of the board
of directors of the Borrower approving and authorizing
the execution, delivery and performance by the
Borrower of this Agreement and the other Loan
Documents to be delivered by the Borrower hereunder,
and authorizing the borrowings hereunder, certified as
of the Closing Date by the Secretary or an Assistant
Secretary of the Borrower;
(B) copies of the resolutions of the board
of directors of each of the Guarantors approving and
authorizing the execution, delivery and performance of
such Guarantor of the Subsidiary Guaranty, certified
as of the Closing Date by the Secretary or an
Assistant Secretary of such Guarantor; and
(C) a certificate of the Secretary or
Assistant Secretary of the Borrower and of each
Guarantor certifying the names and true signatures of
the officers of the Borrower and such Guarantor
authorized to execute, deliver and perform, as
applicable, this Agreement, the Subsidiary Guaranty
and all other Loan Documents to be delivered
hereunder;
(iv) Articles of Incorporation; By-laws and Good
Standing. Each of the following documents:
(A) the articles or certificate of
incorporation of the Borrower and of each Guarantor as
in effect on the Closing Date, certified by the
Secretary of State (or similar, applicable
Governmental Authority) of the state of incorporation
of the Borrower and of each Guarantor as of a recent
date and by the Secretary or Assistant Secretary of
the Borrower and of such Guarantor as of the Closing
Date, and the bylaws of the Borrower and of each
Guarantor as in effect on the Closing Date, certified
by the Secretary or Assistant Secretary of the
Borrower and of such Guarantor as of the Closing Date;
and
(B) a good standing certificate as of a
recent date for the Borrower and each Guarantor from
the Secretary of State (or similar, applicable
Governmental Authority) of its state of incorporation
and each state where the Borrower or such Guarantor is
qualified to do business as a foreign corporation;
(v) Legal Opinions. A favorable opinion of
Hunton & Xxxxxxxx, counsel to the Borrower and the Guarantors,
addressed to the Administrative Agent and the Lenders,
substantially in the form of Exhibit F hereto;
(vi) Solvency Certificate. A certificate of the
chief financial officer, chief accounting officer or treasurer
of the Borrower to the effect that each of the Guarantors will
be Solvent after giving effect to the Subsidiary Guaranty;
(vii) Certificate. A certificate signed by the
chief executive officer, chief financial officer or treasurer
of the Borrower stating that:
(A) the representations and warranties
contained in Article V are true and correct on and as
of such date, as though made on and as of such date;
(B) no Default or Event of Default exists;
and
(C) there has occurred since June 30, 1996,
no event or circumstance that has resulted or could
reasonably be expected to result in a material adverse
change in, or a material adverse effect, at such time
or in the future, in or upon the operations, business,
properties or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole;
and
(viii) Other Documents. Such other approvals,
opinions, documents or materials as the Administrative Agent,
or the Required Lenders through the Administrative Agent, may
request.
(c) Termination of Existing Credit Agreement. Concurrently
with the execution and delivery of this Agreement, each of the lenders
(other than any Lender hereunder) which is party to that certain Credit
Agreement, dated as of March 15, 1996, by and among the Borrower, the
Lenders listed therein, the Administrative Agent and Bank of America,
National Trust and Savings Association, Crestar Bank and FUNB, as
Co-Agents thereunder, as amended by that certain letter agreement dated
as of March 14, 1997, shall have received, or waived in writing, timely
notice of the termination of such credit agreement as of the effective
date of this Agreement provided for in Section 11.9 and all obligations
(if any) thereunder shall have been paid in full.
(d) Payment of Fees. The Borrower shall have paid to (i) the
Administrative Agent, for disbursement to the Lenders, such amounts as
are due and payable by the Borrower to the Lenders on the Closing Date
as agreed upon among the Borrower and the Lenders, and (ii) the
Administrative Agent, for itself and for disbursement to NCMI, such
amounts as are payable to the Administrative Agent and NCMI on the
Closing Date pursuant to the Fee Letter.
Section 4.2 Conditions to All Borrowings.
The obligation of each Lender to make any Advance to be made by it
hereunder (including its initial Advance) is subject to the satisfaction of the
following conditions precedent on the relevant borrowing date:
(a) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing (with, in the case of the initial
Borrowing only, a copy for each Lender);
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Borrower contained in
Article V shall be true and correct on and as of the date of such
Borrowing, with the same effect as if made on and as of the date of
such Borrowing (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall
be true and correct as of such earlier date);
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing; and
(d) Senior Indenture. At any time that the aggregate principal
amount of all outstanding Borrowings shall exceed $240,000,000, the Borrower
shall have provided detailed calculations (in form and substance reasonably
satisfactory to the Administrative Agent) evidencing compliance with Section
4.11 of the Senior Indenture.
Each Notice of Borrowing submitted by the Borrower hereunder shall constitute a
representation and warranty by the Borrower hereunder, as of the date of each
such notice and as of the date of each Borrowing, that the conditions in Section
4.2 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent, the
Documentation Agent, Co-Agents and each of the Lenders that:
Section 5.1 Corporate Existence and Power.
Each of the Borrower and its Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its organization, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. Each of the Borrower and its Subsidiaries is
duly qualified as a foreign corporation, licensed and in good standing in each
jurisdiction where qualification or licensing is required by the nature of its
respective business or the character and location of its respective property,
business or customers and in which the failure so to qualify or be licensed, as
the case may be, in the aggregate, could have a Material Adverse Effect.
Section 5.2 Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by each of the Borrower and the
Guarantors of the Loan Documents to which it is a party are within its corporate
power, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any Governmental Authority and do
not and will not contravene, or constitute (with or without the giving of notice
or lapse of time or both) a default under, any provision of applicable law as
now in effect or of the articles of incorporation or by-laws of the Borrower or
any Guarantor as now in effect or of any material agreement, judgment,
injunction, order, decree or other instrument now binding upon or affecting the
Borrower or such Guarantor or result in the creation or imposition of any Lien
on any of their respective assets.
Section 5.3 Binding Effect.
This Agreement and the Notes each constitutes a valid and binding
agreement of the Borrower and the Subsidiary Guaranty constitutes a valid and
binding obligation of each of the Guarantors, in each case enforceable against
such Person in accordance with its respective terms, except as (i) the
enforceability hereof and thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
Section 5.4 Financial Information.
(a) The consolidated balance sheet of the Borrower and its Subsidiaries
as of June 30, 1996 and the related consolidated statements of income, cash
flows and stockholders' equity for the fiscal year then ended, reported on by
Price Waterhouse LLP and set forth in the Borrower's 1996 Form 10-K, a copy of
which has been delivered to each of the Lenders, fairly present, in conformity
with GAAP, the consolidated financial position of the Borrower and its
Subsidiaries as of such date and the consolidated results of operations and cash
flows for such fiscal year. The Borrower and its Subsidiaries did not, as of
June 30, 1996, have any material contingent obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment,
which is not reflected in any of such financial statements or notes thereto.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of March 31, 1997 and the related unaudited consolidated
statements of income, cash flows and stockholders' equity for the nine months
then ended, set forth in the Borrower's Quarterly Report for the fiscal quarter
ended March 31, 1997 as filed with the Securities and Exchange Commission on
Form 10-Q, a copy of which has been delivered to each of the Lenders, fairly
present, in conformity with GAAP applied on a basis consistent with the
financial statements referred to in paragraph (a), the consolidated financial
position of the Borrower and its Subsidiaries as of such date and the
consolidated results of operations and cash flows for such nine-month period
(subject to normal year-end adjustments).
(c) Except as previously disclosed to the Administrative Agent and the
Lenders, the consolidated balance sheet of Intabex and its Subsidiaries as of
March 31, 1996 and the related consolidated statements of income, cash flows and
stockholders' equity for the fiscal year then ended, reported on by an Approved
Accounting Firm, a copy of which has been delivered to each of the Lenders,
fairly present, in conformity with GAAP, the consolidated financial position of
Intabex and its Subsidiaries as of such date and the consolidated results of
operations and cash flows for such fiscal year. Intabex and its Subsidiaries did
not, as of March 31, 1996, have any material contingent obligation, contingent
liability or liability for taxes, long-term lease or unusual forward or
long-term commitment, which is not reflected in any of such financial statements
or notes thereto.
(d) Except as previously disclosed to the Administrative Agent and the
Lenders, the unaudited consolidated balance sheet of Intabex and its
Subsidiaries as of March 31, 1997 and the related unaudited consolidated
statements of income, cash flows and stockholders' equity for the fiscal year
then ended, a copy of which has been delivered to each of the Lenders, fairly
present, in conformity with GAAP applied on a basis consistent with the
financial statements referred to in paragraph (c), the consolidated financial
position of Intabex and its Subsidiaries as of such date and the consolidated
results of operations and cash flows for such fiscal year.
(e) As of the Closing Date, there has occurred since June 30, 1996, no
event or circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
Section 5.5 Litigation.
Except as set forth on Schedule 5.5, (i) no summons, complaint or other
similar pleading has been served on the Borrower or any of its Subsidiaries in
connection with any action, suit or proceeding, and (ii) to the knowledge of the
Borrower, there is no action, suit or proceeding pending or threatened against,
or affecting, the Borrower or any of its Subsidiaries, before any Governmental
Authority, in the case of clause (i) or (ii) in which there is a reasonable
possibility of an adverse decision which could have a Material Adverse Effect or
which in any manner questions the validity of this Agreement, the Notes or any
Subsidiary Guaranty and there is no basis known to the Borrower for any such
action, suit or proceeding.
Section 5.6 Marketable Title.
The Borrower and each of its Material Subsidiaries has good and
marketable title to all its material properties and assets subject to no Lien,
except Permitted Liens.
Section 5.7 Filings.
All actions by or in respect of, and all filings with, any Governmental
Authority required in connection with the execution, delivery and performance of
this Agreement, the Notes and the Subsidiary Guaranty, or necessary for the
validity or enforceability thereof or for the protection of the rights and
interests of the Administrative Agent and each of the Lenders thereunder, will,
prior to the date of delivery thereof, have been duly taken or made, as the case
may be, and will at all times thereafter remain in full force and effect.
Section 5.8 Regulation U.
The proceeds of the Advances will be used by the Borrower only for the
purposes set forth in Section 2.14 hereof. None of the proceeds of any Advance
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 the Advances a "purpose credit" within the
meaning of Regulations G, T, U and X issued by the Federal Reserve Board.
Section 5.9 Subsidiaries and Affiliates.
Schedule 5.9 sets forth a correct list of each Subsidiary and
Affiliate of the Borrower and the percentage of ownership of the Borrower with
respect to each such entity. Such Schedule correctly identifies all Material
Subsidiaries.
Section 5.10 Solvency.
The Borrower and each of the Guarantors is Solvent.
Section 5.11 ERISA Compliance.
(a) No Reportable Event has occurred and is continuing with respect to
any Plan; (b) the PBGC has not instituted proceedings to terminate any Plan; (c)
neither the Borrower, any Subsidiary of the Borrower, any ERISA Affiliate, nor
any duly-appointed administrator of a Plan (i) has incurred any liability to the
PBGC with respect to any Plan other than for premiums not yet due or payable, or
(ii) has instituted or intends to institute proceedings to terminate any Plan
under Sections 4041 or 4041A of ERISA or withdraw from any Multiemployer Plan;
(d) no "accumulated funding deficiency" (as defined in ERISA Section 302 or Code
Section 412) exists with respect to any Plan, whether or not waived; (e) each
"employee benefit plan" (as defined in Section 3(3) of ERISA) maintained or
contributed to by or on behalf of the Borrower and its Subsidiaries has been
administered substantially and funded in accordance with its terms and with all
provisions of the Code and ERISA applicable thereto; and (f) the Borrower and
its Subsidiaries have not incurred any liability with respect to any welfare
plan (as defined in ERISA Section 3(1)) or for "welfare benefits" (as defined in
Code Section 419) that is not reflected on the financial statements of the
Borrower and its Subsidiaries which would have a Material Adverse Effect.
Section 5.12 Taxes.
The Borrower and each of its Subsidiaries have filed all federal and
other material tax returns and reports required to be filed, and have paid all
federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their respective properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and, with the exception of the Brazilian Tax
Assessment, no notice of lien has been filed or recorded with respect to the
Borrower, any of its Subsidiaries or any of their respective properties. With
the exception of the Brazilian Tax Assessment, there is no proposed tax
assessment against the Borrower or any of its Subsidiaries which would, if the
assessment were made, have a Material Adverse Effect.
Section 5.13 Environmental Matters.
(a) The on-going operations of the Borrower and each of its
Subsidiaries comply in all respects with all Environmental Laws, except such
non-compliance which would not (if enforced in accordance with applicable law)
result in liability in excess of $2,000,000 in the aggregate.
(b) Except as specifically disclosed in Schedule 5.13, the Borrower and
each of its Subsidiaries have obtained all licenses, permits, authorizations and
registrations required under any Environmental Law ("Environmental Permits") and
necessary for their respective ordinary course operations, no Governmental
Authority responsible for such Environmental Permits has threatened to revoke,
refuse to reissue or materially limit such Environmental Permits, and the
Borrower and each of its Subsidiaries are in compliance with all material terms
and conditions of such Environmental Permits.
(c) Except as specifically disclosed in Schedule 5.13, none of the
Borrower, any of its Subsidiaries or any of their respective present assets or
operations, is subject to, any outstanding written order from, or agreement
with, any Governmental Authority, nor subject to any judicial or docketed
administrative proceeding, respecting any Environmental Law, Environmental Claim
or Hazardous Material.
(d) Except as specifically disclosed in Schedule 5.13, there are no
Hazardous Materials or other conditions or circumstances existing with respect
to any assets, or arising from operations prior to the Closing Date, of the
Borrower, any of its Subsidiaries or any of their respective predecessors that
would reasonably be expected to give rise to Environmental Claims with a
potential liability to the Borrower and its Subsidiaries in excess of $1,000,000
in the aggregate for any such condition, circumstance or assets. In addition,
(i) to the knowledge of the Borrower, neither the Borrower nor any of its
Subsidiaries has any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws, or (y) that are
leaking or disposing of Hazardous Materials, and (ii) to the extent required by
applicable Environmental Law, the Borrower and its Subsidiaries have notified
all of their employees of the existence, if any, of any health hazard arising
from the conditions of their employment and have met all material notification
requirements under all Environmental Laws.
Section 5.14 Regulated Entities.
None of the Borrower, any Person controlling the Borrower, or any
Subsidiary of the Borrower, is (a) an "Investment Company" within the meaning of
the Investment Company Act of 1940; or (b) subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other federal
or state statute or regulation limiting its ability to incur Debt.
Section 5.15 No Burdensome Restrictions.
Neither the Borrower nor any of its Subsidiaries is a party to or bound
by any contract or agreement, or subject to any charter or corporate
restriction, or any Requirement of Law, which could reasonably be expected to
have a Material Adverse Effect.
Section 5.16 Labor Relations.
There are no strikes, lockouts or other labor disputes against the
Borrower or any of its Subsidiaries, or, to the best of the Borrower's
knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries that reasonably could be expected to have a Material Adverse
Effect, and no significant unfair labor practice complaint is pending against
the Borrower or any of its Subsidiaries or, to the knowledge of the Borrower,
threatened against any of them before any Governmental Authority, if determined
adversely to the Borrower or any of its Subsidiaries, that reasonably could be
expected to have a Material Adverse Effect.
Section 5.17 Copyrights, Patents, Trademarks and Licenses, etc.
The Borrower or its Subsidiaries own or are licensed or otherwise have
the right to use all of the patents, trademarks, service marks, trade names,
copyrights, contractual franchises, authorizations and other rights that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person. To the knowledge of the Borrower,
no slogan or other advertising device, product, process, method, substance, part
or other material now employed, or now contemplated to be employed, by the
Borrower or any of its Subsidiaries infringes upon any rights held by any other
Person; except as specifically disclosed in Schedule 5.17, no claim or
litigation regarding any of the foregoing is pending or, to the knowledge of the
Borrower, threatened, and no patent, invention, device, application, principle
or any statute, law, rule, regulation, standard or code is pending or, to the
knowledge of the Borrower, proposed, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
Section 5.18 Compliance With Laws.
The Borrower and each of its Subsidiaries are in compliance with all
applicable Requirements of Law except where the failure to comply could not
reasonably be expected to have a Material Adverse Effect.
Section 5.19 Broker's Fees; Transaction Fees.
Neither the Borrower nor any of the its Subsidiaries has any obligation
to any Person in respect of any finder's, broker's or investment banker's fee in
connection with the transactions contemplated hereby, except as provided in the
Fee Letter.
Section 5.20 Full Disclosure.
All information heretofore furnished by any Responsible Officer of the
Borrower to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby was, when
furnished, and all such information hereafter furnished by the Borrower to the
Administrative Agent or any Lender will be, true, accurate and complete in every
material respect or based on reasonable estimates on the date as of which such
information is stated or certified. None of such information omits any material
fact known by the Borrower that is required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
are made, not misleading as of the time when made or delivered. The Borrower has
disclosed to the Lenders in writing any and all facts known by the Borrower that
could have or cause a Material Adverse Effect.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower agrees that so long as any Advance or any other Obligation
shall remain unpaid or any Lender shall have a Commitment hereunder, the
Borrower shall, unless the Required Lenders otherwise consent in writing:
Section 6.1 Consolidated Working Capital.
Maintain Consolidated Working Capital, calculated on the last day of
each fiscal quarter ending during the periods set forth below, of not less than
the amount set forth opposite such period:
Fiscal Quarter End Amount
------------------ ------
June 30, 1997, September 30, 1997,
December 31, 1997 and March 31, 1998 $400,000,000
June 30, 1998 and each fiscal
quarter end occurring thereafter $500,000,000
Section 6.2 Minimum Consolidated Tangible Net Worth.
Maintain Consolidated Tangible Net Worth, calculated on the last day of
each fiscal quarter of not less than the "Minimum Compliance Level." As of the
Closing Date, the "Minimum Compliance Level" shall be $165,000,000. Beginning on
the date on which the Administrative Agent first receives the officer's
certificate to be furnished by the Borrower pursuant to Section 7.1(c) of this
Agreement, the "Minimum Compliance Level" shall be the greater of (a)
$165,000,000 or (b) Consolidated Tangible Net Worth as of June 30, 1997 less
$15,000,000. The Minimum Compliance Level shall be adjusted upward (a) upon the
conversion of any Subordinated Debt Securities into stock of the Borrower, by an
amount equal to the aggregate principal amount of Subordinated Debt Securities
so converted and (b) as of the last day of each fiscal year, from and including
the fiscal year ending June 30, 1998, by an amount equal to 55% of Consolidated
Net Income (inclusive of extraordinary gains and without reduction for
extraordinary losses) for such fiscal year. The foregoing increases in the
Minimum Compliance Level shall be cumulative, and no reduction shall be made on
account of any Consolidated Net Income of less than zero for any fiscal year.
Section 6.3 Consolidated Fixed Charge Coverage Ratio.
Maintain a Consolidated Fixed Charge Coverage Ratio, calculated on the
last day of each fiscal quarter ending on the dates set forth below, of not less
than the ratio set forth opposite such date:
Fiscal Quarter End Ratio
------------------ -----
September 30, 1997 0.80:1.0
December 31, 1997 1.10:1.0
March 31, 1998 and each fiscal
quarter end occurring thereafter 1.25:1.0
Section 6.4 Consolidated Leverage Ratio.
Maintain a Consolidated Leverage Ratio, calculated on the last day of
each fiscal quarter ending on the dates set forth below, of not more than the
ratio set forth opposite such date:
Fiscal Quarter End Ratio
------------------ -----
June 30, 1997 and September 30,
1997 0.775:1.0
December 31, 1997 0.750:1.0
March 31, 1998 and June 30, 1998 0.700:1.0
September 30, 1998 0.725:1.0
December 31, 1998 0.700:1.0
March 31, 1999 and June 30, 1999 0.650:1.0
September 30, 1999 0.675:1.0
December 31, 1999 and each fiscal
quarter end occurring thereafter 0.650:1.0
ARTICLE VII
AFFIRMATIVE COVENANTS
The Borrower agrees that so long as any Advance or any other Obligation
shall remain unpaid or any Lender shall have a Commitment hereunder, unless the
Required Lenders otherwise consent in writing:
Section 7.1 Information.
The Borrower shall deliver or cause to be delivered to each of the
Lenders:
(a) Annual Reports. (i) As soon as available and in any event
within 90 days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such fiscal year and the related consolidated statement of
cash flows and the consolidated statements of income and stockholders'
equity for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail
and accompanied by an opinion on such consolidated statements by an
Approved Accounting Firm which opinion shall state that such
consolidated financial statements present fairly the consolidated
financial position of the Borrower and its Subsidiaries as of the date
of such financial statements and their consolidated results of their
operations and cash flows for the period covered by such financial
statements in conformity with GAAP applied on a consistent basis
(except for changes in the application of which such accountants
concur) and shall not contain any "going concern" or like qualification
or exception or qualifications arising out of the scope of the
consolidated audit;
(ii) As soon as available and in any event within 90 days
after the end of each fiscal year, a consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries and the related
consolidated and consolidating statements of income, cash flows and
stockholders' equity for such fiscal year, setting forth (in the case
of consolidating statements) separate figures for U.S. and non-US
tobacco and flower operations and fully consolidated operations and (in
the case of consolidated statements) the consolidated figures in
comparative form for the Borrower's previous fiscal year, all certified
(subject to normal year-end audit adjustments) as complete and correct
in all material respects by the Borrower's chief financial officer,
treasurer or chief accounting officer;
(b) Quarterly Reports. As soon as available and in any event
within 45 days after the end of each of the first three fiscal
quarters, a consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries and the related consolidated and
consolidating statements of income, cash flows and stockholders' equity
for the portion of the Borrower's fiscal year ended at the end of such
quarter, setting forth (in the case of consolidating statements)
separate figures for U.S. and non-US tobacco and flower operations and
fully consolidated operations and (in the case of consolidated
statements) the consolidated figures in comparative form for the
corresponding portion of the Borrower's previous fiscal year, all
certified (subject to normal year-end audit adjustments) as complete
and correct in all material respects by the Borrower's chief financial
officer, treasurer or chief accounting officer;
(c) Officer's Certificates. Simultaneously with the delivery
of the financial statements referred to in paragraphs (a) and (b)
above, (i) a certificate of the Borrower's chief financial officer,
treasurer or chief accounting officer (A) setting forth in reasonable
detail the calculations required to establish whether the Borrower was
in compliance with the requirements of Article VI and (B) stating that
the Borrower was in compliance with Sections 8.1, 8.2, 8.3 and 8.5,
each on the date of such financial statements; and (ii) a certificate
of the Borrower's chief financial officer, treasurer or chief
accounting officer (A) stating whether there exists on the date of such
certificate any Default or Event of Default and, if any Default or
Event of Default then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect
thereto and (B) stating whether, since the date of the most recent
previous delivery of financial statements pursuant to paragraphs (a) or
(b) of this Section, any event has occurred that would have a Material
Adverse Effect and, if so, the nature of such Material Adverse Effect;
(d) Accountant's Certificates. Simultaneously with the
delivery of each set of financial statements referred to in paragraph
(a) above, a statement of the Approved Accounting Firm that reported on
such statements (i) stating that their audit examination has included
the reading of this Agreement and the Notes as they relate to financial
or accounting matters, (ii) whether anything has come to their
attention to cause them to believe that there existed on the date of
such statements any Default or Event of Default and (iii) confirming
the calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to paragraph (c) above;
(e) Notice of Default. Forthwith upon the occurrence of any
Default or Event of Default, notice of such Default or Event of Default
in the form of a certificate of the Borrower's chief financial officer,
treasurer or chief accounting officer setting forth the details thereof
and the action which the Borrower is taking or proposes to take with
respect thereto;
(f) Notice of Litigation. Promptly upon, but in no event later
than fifteen (15) days after a Responsible Officer becoming aware
thereof, written notice of the commencement of, or of a material threat
of the commencement of, an action, suit or proceeding against the
Borrower or any of its Subsidiaries, whether or not the claim shall be
covered by insurance, which could have a Material Adverse Effect or
which in any manner questions the validity of this Agreement, the
Notes, the Subsidiary Guaranty or any of the other transactions
contemplated hereby or thereby, a notice setting forth the nature of
such pending or threatened action, suit or proceeding and such
additional information as the Administrative Agent, at the request of
any Lender, may reasonably request;
(g) Press Releases. Promptly upon issuance thereof, copies of
all press releases and other statements made available generally by the
Borrower or its Material Subsidiaries to the public concerning material
developments in the results of operations, financial condition,
business or prospects of the Borrower or its Material Subsidiaries;
(h) Accountant's Reports. Promptly upon receipt thereof, (x)
each report submitted to the Borrower by its Approved Accounting Firm
concerning its accounting practices and systems and any final comment
letter submitted by such accountants to management in connection with
the annual audit of the Borrower by its Approved Accounting Firm and
(y) copies of each report material to the financial condition or
operations of the Borrower submitted to a Responsible Officer of the
Borrower or any of its Material Subsidiaries by independent public
accountants in connection with any annual, interim or special audit
made by them of the books of the Borrower or any of its Material
Subsidiaries;
(i) Shareholder Communications. Promptly upon the mailing
thereof to the Borrower's shareholders, copies of all financial
statements, reports and proxy statements so mailed;
(j) SEC Filings. Promptly upon the filing thereof, copies of
all registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or periodic reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(k) Schedule Update. From time to time such information as is
necessary so that each of Schedule 5.9, Schedule 5.13 and Schedule 5.17
is accurate and complete;
(l) Additional Information. From time to time such additional
information regarding the financial position, results of operations or
business of the Borrower or any Material Subsidiary as the
Administrative Agent, at the request of any Lender, may reasonably
request;
(m) Notices to Holders of Senior Debt Securities.
Simultaneously with delivery thereof, copies of all written notices as
the Borrower shall send to the holders of the Senior Debt Securities;
(n) Environmental Matters. Promptly upon, but in no event
later than fifteen (15) days after a Responsible Officer becoming aware
thereof, written notice of (i) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted,
completed or threatened against the Borrower or any of its Subsidiaries
or any of their respective properties pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims, and (iii) any
environmental or similar condition on any real property adjoining or in
the vicinity of the property of the Borrower or any Subsidiary that
could reasonably be anticipated to cause such property or any part
thereof to be subject to any restrictions on the ownership, occupancy,
transferability or use of such property under any Environmental Laws;
(o) ERISA. Promptly and in any event within fifteen (15) days
after
(i) a Responsible Officer or any ERISA Affiliate
knows or has reason to know that any ERISA Event has occurred,
a statement of the chief executive officer, chief financial
officer or treasurer of the Borrower describing such ERISA
Event and the action, if any, which the Borrower or such ERISA
Affiliate proposes to take with respect thereto;
(ii) receipt thereof by the Borrower or any ERISA
Affiliate, copies of each notice from the PBGC stating its
intention to terminate any Plan or to have a trustee appointed
to administer any Plan;
(iii) receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of
each notice received by the Borrower or any ERISA Affiliate
concerning (x) the imposition of withdrawal liability by a
Multiemployer Plan, or (y) the reorganization or termination,
within the meaning of Title IV of ERISA, of any Multiemployer
Plan and such notice shall include the estimated amount of
withdrawal liability incurred or which may be incurred by the
Borrower or any ERISA Affiliate in connection with such event
described in clause (x) or (y) above; and
(p) Rating Change. Promptly upon receipt of notice thereof by
a Responsible Officer, a written notice of the issuance of any rating
of, or any change in the rating of, the Borrower's senior unsecured
debt affecting the calculation of the Applicable Margin or of the
commitment fees due pursuant to Section 2.10 hereof or any other
issuance or change in the public rating of any other obligations of the
Borrower or any of its Material Subsidiaries.
Section 7.2 Payment of Obligations.
The Borrower and each of its Material Subsidiaries shall pay and
discharge, as the same shall become due and payable, (i) all of their respective
obligations and liabilities in an amount exceeding $500,000, including all
claims or demands of materialmen, mechanics, carriers, warehousemen, landlords
and other like Persons which, in any such case, if unpaid, might by law give
rise to a Lien upon any of their properties or assets, and (ii) all lawful
taxes, assessments and charges or levies made upon their properties or assets by
any Government, except where any of the items in clause (i) or (ii) of this
Section 7.2 may be diligently contested in good faith by appropriate
proceedings, and the Borrower or such Subsidiary shall have set aside on its
books, if required under GAAP, appropriate reserves for the accrual of any such
items.
Section 7.3 Maintenance of Property; Insurance.
The Borrower and each of its Material Subsidiaries shall keep all
property useful and necessary in their respective businesses in good working
order and condition, subject to ordinary wear and tear, shall maintain (either
in the Borrower's name or in such Material Subsidiary's own name) with
financially sound and reputable insurance companies, insurance on all their
respective properties in at least such amounts and against at least such risks
(and with such risk retentions) as are usually insured against by companies
engaged in the same or a similar business in similar locations and shall furnish
to the Administrative Agent upon request by the Administrative Agent or the
Required Lenders full information as to the insurance carried.
Section 7.4 Conduct of Business and Maintenance of Existence.
The Borrower and, subject to the provisions of Section 8.4, each of its
Material Subsidiaries shall continue to engage in business of the same general
type as now conducted by the Borrower or such Material Subsidiary. The Borrower
shall, and, subject to Section 8.4, shall cause each Material Subsidiary to,
take all reasonable action to preserve, renew and keep in full force and effect
its respective corporate existence and its respective rights, privileges and
franchises to the extent such rights, privileges and franchises remain material
to the normal conduct of its business.
Section 7.5 Compliance with Laws.
The Borrower and each Subsidiary shall comply in all material respects
with all Requirements of Law (including, without limitation, ERISA and the rules
and regulations thereunder and Environmental Laws), except where the necessity
of compliance therewith is contested in good faith by appropriate proceedings or
non-compliance could not be reasonably expected to have a Material Adverse
Effect.
Section 7.6 Accounting; Inspection of Property, Books and Records.
The Borrower and each Subsidiary shall keep proper books of records and
accounts in which full, true and correct entries in conformity with GAAP shall
be made of all dealings and transactions in relation to their respective
businesses and activities; the Borrower shall maintain its fiscal reporting
period on a June 30 fiscal year, and each Subsidiary (other than a Foreign
Subsidiary) shall maintain its respective fiscal reporting period on the present
basis; and the Borrower shall permit, and shall cause each Subsidiary to permit,
upon three (3) days, prior written notice to the Borrower, representatives of
any Lender to visit and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their officers, employees
and independent public accountants, all at such reasonable times and as often as
may reasonably be desired; provided that no such notice shall be required if a
Default or Event of Default has occurred and is continuing.
Section 7.7 Additional Guarantors.
In the event that any Subsidiary of the Borrower or any other Person
becomes a Material Domestic Subsidiary after the Closing Date, whether pursuant
to an acquisition, merger or transfer of assets permitted or consented to by the
Required Lenders under Section 8.4 hereof, through internal growth or otherwise,
the Borrower shall, at the request of the Administrative Agent, cause each such
Material Domestic Subsidiary to become a party to the Subsidiary Guaranty, and
to deliver all relevant documentation with respect thereto as would have been
delivered pursuant to Section 4.1(b) hereof as if such Subsidiary had been a
Material Domestic Subsidiary on the Closing Date.
Section 7.8 ERISA.
The Borrower shall make, and cause each of its Subsidiaries and ERISA
Affiliates to make, prompt payments of contributions required by the terms of
each plan and to meet the minimum funding standards applicable thereto.
ARTICLE VIII
NEGATIVE COVENANTS
The Borrower agrees that so long as any Advance or any other Obligation
shall remain unpaid or any Lender shall have a Commitment hereunder, unless the
Required Lenders otherwise consent in writing:
Section 8.1 Restriction on Liens.
The Borrower shall not, and shall not permit any Material Subsidiary
to, create, assume or suffer to exist any Lien on any property or asset now
owned or hereafter acquired by the Borrower or such Material Subsidiary or
assign or otherwise subordinate any present right, or subordinate any future
right subsequent to the acquisition thereof, to receive assets, except:
(a) Liens existing on the Closing Date and set forth on
Schedule 8.1, which Liens secure Debt outstanding on the Closing Date
in an aggregate principal amount not exceeding $220,000,000;
(b) purchase money Liens on any capital asset of the Borrower
or a Material Subsidiary if such purchase money Lien attaches to such
capital asset concurrently with the acquisition thereof and if the Debt
secured thereby does not exceed the lesser of the cost or fair market
value as of the time of acquisition of the asset covered thereby by the
Borrower or such Material Subsidiary; provided, that the aggregate
amount of debt (excluding any Debt permitted under clause (a) above),
secured by all such Liens does not exceed $15,000,000 in the aggregate
at any one time outstanding; and provided further, that no such Lien
shall extend to or cover any property or asset of the Borrower or such
Material Subsidiary other than the related property or asset (including
accessions thereto and proceeds thereof, to the extent provided in the
security agreement creating such Lien);
(c) Liens not securing Debt which are incurred in the ordinary
course of business in connection with workers' compensation,
unemployment insurance, old-age pensions, social security and public
liability laws and similar legislation;
(d) Liens securing the performance of bids, tenders, leases,
contracts (other than for the repayment of Debt), statutory
obligations, and other obligations of like nature, incurred as an
incident to and in the ordinary course of business;
(e) Liens securing taxes, assessments or charges or levies of
any Governmental Authority or the claims of growers, materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons;
provided, that (i) with respect to Liens securing taxes, such taxes are
not yet due and payable, (ii) with respect to Liens securing claims or
demands of growers, materialmen, mechanics, carriers, warehousemen,
landlords and the like, such Liens are inchoate and unfiled and no
other action has been taken to enforce the same and (iii) with respect
to taxes, assessments or charges or levies of any Governmental
Authority secured by such Liens, payment thereof is not at the time
required by Section 7.2;
(f) zoning restrictions, easements, licenses, reservations,
covenants, conditions, waivers, restrictions on the use of property or
other minor encumbrances or irregularities of title which do not
materially impair the use of any material property in the operation of
the business of the Borrower or any Material Subsidiary or the value of
such property for the purpose of such businesses or which are being
contested in good faith by appropriate proceedings;
(g) attachment, judgment or similar Liens arising in
connection with court proceedings and the Brazilian Tax Assessment;
provided, that the execution or other enforcement of such Liens is
effectively stayed, the claims secured thereby are being actively
contested in good faith by appropriate proceedings and the Borrower or
such Material Subsidiary shall have set aside on its books, if required
by GAAP, appropriate reserves for such Liens;
(h) any Lien existing on any asset of any Person at the time
such Person becomes a Material Subsidiary and not created in
contemplation of such event;
(i) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into the Borrower or a
Material Subsidiary and not created in contemplation of such event;
(j) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Material Subsidiary and not created in
contemplation of such event;
(k) Liens given to secure Debt owing to life insurance
companies (or affiliates thereof) issuing life insurance policies in
connection with Split-Dollar Programs, incurred to finance
non-scheduled premiums paid by the Borrower or its Subsidiaries under
such policies pursuant to Split-Dollar Agreements executed in
connection with the Split-Dollar Program which Debt does not exceed
$10,000,000 in the aggregate, provided that in connection with any
Split-Dollar Program such Liens shall be limited to the Borrower's
right, title and interest in and to (i) the Split-Dollar Agreement and
the Split-Dollar Assignment executed in connection with such
Split-Dollar Program and (ii) the policy of life insurance assigned to
the Borrower as collateral pursuant to such Split-Dollar Assignment;
(l) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing paragraphs of this Section 8.1; provided, that the
principal amount of such Debt is not increased and such Debt is not
secured by any additional assets; and
(m) Liens not otherwise permitted by the foregoing paragraphs
of this Section 8.1 securing Debt in an aggregate principal amount at
any time outstanding not to exceed $500,000.
Section 8.2 Debt.
(a) The Borrower shall not create, assume or suffer to exist any Debt
(i) that is secured by any Lien that is not permitted by Section 8.1 or (ii) in
the case of any Debt for borrowed money incurred or assumed after the Closing
Date, if on the date of incurrence or assumption of such Debt after giving
effect on a Pro Forma Basis to the incurrence or assumption of such Debt and to
the concurrent retirement of any other Debt of the Borrower or any of its
Subsidiaries, a Default or Event of Default would exist hereunder; provided,
however, that the Borrower may renew, refinance or extend any Debt originally
permitted to be incurred pursuant to this paragraph (a) so long as such renewed,
refinanced or extended Debt is on terms and conditions no less favorable to the
Borrower than the Debt originally issued (including, without limitation, any
shortening of the final maturity or average life to maturity or requiring any
payment to be made sooner than originally scheduled or any increase in the
interest rate applicable thereto or any change to any subordination provision
thereof).
(b) The Borrower shall not permit any Subsidiary to create, assume or
suffer to exist any Debt other than (i) purchase money Debt to the extent
secured by Liens permitted by Section 8.1 and (ii) additional Debt, including
Debt arising under any Guarantee permitted by Section 8.3, which in the
aggregate does not exceed (x) $60,000,000 for Domestic Subsidiaries, and (y)
$900,000,000 for Foreign Subsidiaries; provided, however, that this Section
8.2(b) shall not permit the incurrence or assumption of any Debt if on the date
of incurrence or assumption of such Debt after giving effect on a Pro Forma
Basis to the incurrence or assumption of such Debt and to the concurrent
retirement of any other Debt of the Borrower or any of its Subsidiaries, a
Default or Event of Default would exist hereunder.
Section 8.3 Guarantees.
The Borrower shall not, and shall not permit any Subsidiary to, create,
assume or suffer to exist any Guarantee, other than (i) Guarantees which are
incurred in the ordinary course of business for the purpose of carrying unsold
tobacco inventories held against Confirmed Orders, (ii) other Guarantees
incurred in the ordinary course of business so long as the aggregate outstanding
amount of all obligations Guaranteed under this clause (ii) does not at any time
exceed $250,000,000, (iii) Guarantees of the Guarantors pursuant to the
Subsidiary Guaranty and (iv) Guarantees of the Guarantors of the Borrower's
obligations under the Senior Indenture and the Senior Debt Securities.
Section 8.4 Consolidations, Mergers and Sale of Assets.
The Borrower shall not, and shall not permit any Material Subsidiary
to, consolidate or merge with or into any other Person or sell, lease or
otherwise transfer all or any substantial part of its assets to any other
Person, except that:
(a) the Borrower may merge with another Person if (i) the
Borrower is the corporation surviving such merger and (ii) immediately
after giving effect to such merger on a Pro Forma Basis, no Default or
Event of Default shall have occurred and be continuing;
(b) any Material Subsidiary may merge with or into, or sell,
lease or otherwise transfer all or any substantial part of its assets
to the Borrower or to a Material Domestic Subsidiary (determined
immediately thereafter) if, in connection with any such merger (i)
either the Borrower or such Material Domestic Subsidiary is the
surviving corporation and (ii) immediately after giving effect to such
merger, sale, lease or other transfer on a Pro Forma Basis, no Default
or Event of Default shall have occurred and be continuing;
(c) any Material Foreign Subsidiary may merge into or sell,
lease or otherwise transfer all or substantially all of its assets to
any other Foreign Subsidiary in which the Borrower, directly or
indirectly, shall retain a proportionate equity interest equal to or
greater than the equity interest of the Borrower in the merging
Subsidiary if immediately after giving effect to such merger, sale,
lease or other transfer on a Pro Forma Basis, no Default or Event of
Default shall have occurred and be continuing;
(d) any Material Subsidiary may merge with another Person in
connection with an Acquisition permitted by Section 8.5 if (i) such
Material Subsidiary is the surviving corporation and (ii) following
such Acquisition, the Borrower shall retain, directly or indirectly, a
proportionate equity interest in such Material Subsidiary equal to or
greater than the Borrower's equity interest immediately prior to such
Acquisition;
(e) the Borrower may complete the orderly liquidation of its
interests in Korean American Tobacco Company; and
(f) the Borrower or any Material Subsidiary may transfer its
interests in any Foreign Subsidiary to one or more Wholly Owned
Subsidiaries of the Borrower or such Material Subsidiary.
Section 8.5 Acquisitions and Investments.
The Borrower shall not, and shall not permit any Subsidiary to,
directly or indirectly, make any Acquisition or Investment, or enter into any
agreement to make any Acquisition or Investment, except for:
(a) In addition to any Investments otherwise permitted by this
Section 8.5, any Acquisition (other than a Hostile Acquisition) or
Investment for consideration consisting of cash or cash equivalents,
common stock of the Borrower (valued at the market value thereof as of
the date of the issuance thereof), other securities or properties of
the Borrower or any Subsidiary (valued in good faith by the Board of
Directors of the Borrower), the assumption of any Debt (valued at the
principal amount thereof), any other consideration (valued in good
faith by the board of directors of the Borrower) or any combination of
the foregoing; provided that the aggregate value of all such
consideration for all Acquisitions and Investments of the Borrower and
its Subsidiaries made during any fiscal year shall not exceed 10% of
Consolidated Tangible Net Worth as of the most recent fiscal year end
with respect to which the Administrative Agent and the Lenders shall
have received the financial statements referred to in Section
7.1(a)(i).
(b) Investments in direct obligations of, or obligations
Guaranteed as to principal and interest by, the United States
government or any agency or instrumentality thereof maturing in one
year or less from the date of acquisition thereof;
(c) Investments in deposits in (including money market funds
of), or certificates of deposits or bankers' acceptances of, (i) any
bank or trust company organized under the laws of the United States or
any state thereof having capital and surplus in excess of $100,000,000,
(ii) any international bank organized under the laws of any country
which is a member of the OECD or a political subdivision of any such
country, and having a combined capital and surplus of at least
$100,000,000, or (iii) leading banks in a country where the Borrower or
the Subsidiary making such Investment does business; provided, that all
such Investments mature within 270 days of the date of such Investment;
and provided, further, that all Investments pursuant to clause (iii)
above are (A) solely of funds generated in the ordinary course of
business by operations of Foreign Subsidiaries in the country where
such Investment is made, and (B) denominated in the currency of the
country in which such Investment is made or in Dollars;
(d) Investments in commercial paper maturing within 270 days
and having one of the two highest ratings of either Standard & Poor's
Corporation, Xxxxx'x Investors Service, Inc. or Fitch Investors'
Service, Inc.;
(e) Investments in money market funds (other than those
referred to in paragraph (c) above) that have assets in excess of
$2,000,000,000, are managed by recognized and responsible institutions
and invest solely in obligations of the types referred to in paragraphs
(b) (c)(i) and (ii) and (d) above;
(f) Investments in Persons evidencing the deferred purchase
price receivable of assets sold, leased or otherwise transferred in
accordance with Section 8.4;
(g) Investments in the Borrower and any Material Domestic
Subsidiary (determined immediately after such Investment);
(h) loans and advances in the ordinary course of its business
to officers and employees of the Borrower or any Subsidiary of the
Borrower in an amount consistent with past practice of the Borrower;
(i) loans and advances to growers and other suppliers of
tobacco (including Affiliates) in the ordinary course of its business
in an aggregate outstanding principal amount consistent with past
practice of the Borrower;
(j) Guarantees permitted by Sections 8.2 and 8.3;
(k) Investments in (i) direct noncallable obligations of, or
obligations Guaranteed as to principal and interest by the United
States government or any agency or instrumentality thereof, without
regard to the maturity of such obligations, and (ii) depository
receipts issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933) as custodian with respect to any obligation of
the United States government referred to in clause (i) above and held
by such bank for the account of the holder of such depository receipt,
or with respect to any specific payment of principal or interest on any
obligation of the United States government which is so specified and
held, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depository receipts from any amount received by the custodian
in respect of the United States government obligations or the specific
payment of principal or interest of the United States government
obligations evidenced by such depository receipts, where the sole
purpose of such Investments is either the Legal Defeasance or the
Covenant Defeasance of the outstanding Senior Debt Securities, as
provided in the Senior Indenture;
(l) Investments made by any Foreign Subsidiary in the ordinary
course of such Person's business, in connection with the financing of
international trading transactions, in export notes, trade credit
assignments, bankers' acceptances guarantees and instruments of a
similar nature issued by (i) any commercial bank or trust company (or
any Affiliate thereof) organized under the laws of the United States or
any state having capital and surplus in excess of $100,000,000 or (ii)
any international bank organized under the laws of any country which is
a member of the OECD or a political subdivision of any such country,
and having a combined capital and surplus of at least $100,000,000;
(m) Investments by the Borrower in the Senior Debt Securities
in connection with any purchase of the Senior Debt Securities by the
Borrower, as required or permitted by the Senior Indenture, and
otherwise permitted under this Agreement;
(n) Investments by the Borrower in the Subordinated Debt
Securities in connection with any conversion or purchase of the
Subordinated Debt Securities by the Borrower, as required or permitted
by the Subordinated Indenture, and otherwise permitted under this
Agreement; provided that the Borrower shall make no such Investment
(other than a conversion of the Subordinated Debt Securities into stock
of the Borrower) unless immediately after giving effect thereto on a
Pro Forma Basis, no Default or Event of Default shall have occurred and
be continuing;
(o) Transfers of interests in Foreign Subsidiaries to the
extent permitted under Section 8.4(f); and
(p) Investments by a Foreign Subsidiary in any other Foreign
Subsidiary.
Section 8.6 Transactions with Other Persons.
The Borrower shall not enter into any agreement with any Person whereby
the Borrower shall agree to any restriction on the Borrower's right to amend or
waive any of the provisions of this Agreement.
Section 8.7 Transactions with Affiliates.
The Borrower shall not, and shall not permit any Material Subsidiary
to, enter into any transaction with any Affiliate of the Borrower or any such
Material Subsidiary, except (a) as expressly permitted by this Agreement, or (b)
in the ordinary course of business and pursuant to the reasonable requirements
of the business of the Borrower or such Material Subsidiary, provided that such
transaction is upon fair and reasonable terms no less favorable to the Borrower
or such Material Subsidiary than would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Borrower or such Material
Subsidiary.
Section 8.8 Compliance with ERISA.
The Borrower shall not, and shall not permit any Subsidiary or any
ERISA Affiliate to, (a) terminate any Plan or withdraw from any Multiemployer
Plan so as to result in any liability to the Borrower or any of its Subsidiaries
in excess of $2,500,000, either singly or in the aggregate, (b) enter into any
"prohibited transaction" (as defined in Section 4975 of the Code and in Section
406 of ERISA) which results in any liability to the Borrower or any of its
Subsidiaries in excess of $2,500,000, either singly or in the aggregate, (c)
cause any occurrence of any Reportable Event which results in any, liability to
the Borrower or any of its Subsidiaries in excess of $2,500,000, either singly
or in the aggregate, or (d) allow or suffer to exist any other event or
condition known to the Borrower or any of its Subsidiaries which results in any
liability to the Borrower or any of its Subsidiaries in excess of $2,500,000,
either singly or in the aggregate, with respect to an "employee benefit plan"
(as defined in Section 3(3) of ERISA), including a Plan.
Section 8.9 Change in Structure.
Except as expressly permitted by this Agreement, the Borrower shall
not, and shall not permit any Material Subsidiary to, make any changes in its
equity capital structure (including in the terms of its outstanding stock) that
would reduce or impair the consolidated equity capital of the Borrower and its
Material Subsidiaries immediately thereafter, or amend its certificate of
incorporation or by-laws in any respect which is adverse to the interests of the
Lenders, provided that, nothing herein shall limit or impair the right or
ability of the Borrower or any of its Subsidiaries to issue stock.
Section 8.10 Restrictions on Negative Pledges.
The Borrower shall not, and shall not permit any Material Subsidiary
to, enter into any indenture, agreement, instrument or other arrangement (other
than the Senior Indenture) that (or modify any indenture, agreement, instrument
or other arrangement such that it), directly or indirectly, prohibits or
restrains, or has the effect of prohibiting or restraining, or imposes
materially adverse conditions upon, the granting of Liens by the Borrower or any
Material Subsidiary of the Borrower to the Administrative Agent for the benefit
of the Lenders.
Section 8.11 Limitation on Dividend Restrictions.
The Borrower shall not, and shall not permit any Subsidiary to, enter
into any agreement or otherwise become subject to any arrangement (except as may
be required or imposed by any Requirement of Law in the case of a Foreign
Subsidiary) which restricts or prohibits, in any manner whatsoever, the payment
of dividends or any similar distribution from any Subsidiary to the Borrower or
between or among the Subsidiaries.
Section 8.12 Payments of Subordinated Debt Securities.
If any Default or Event of Default has occurred and is continuing or
would be directly or indirectly caused as a result thereof, the Borrower shall
not, and shall not permit any Subsidiary to, make (or give any notice with
respect thereto) any payment or prepayment or redemption or acquisition for
value of (including without limitation, by way of depositing money or securities
with the trustee with respect thereto before due for the purpose of paying when
due), refund, refinance or exchange of any Indebtedness (including interest and
fees) arising under the Subordinated Indenture and the Subordinated Debt
Securities; provided that the Borrower shall at all times be permitted to
convert the Subordinated Debt Securities into stock of the Borrower as required
or permitted by the Subordinated Indenture, and otherwise permitted under this
Agreement.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1 Events of Default.
Any one or more of the following events shall constitute an event of
default hereunder ("Events of Default"):
(a) Non-Payment. The Borrower shall fail to pay (i) when due,
any amount of principal of any Advance, (ii) within three (3) days
after the same shall become due, any interest or fee payable hereunder
or pursuant to any other Loan Document or (iii) within three (3) days
after written demand therefor from the Administrative Agent or any
Lender, any other amount payable hereunder or pursuant to any other
Loan Document; or
(b) Specific Covenants. The Borrower shall fail to observe or
perform any covenant contained in Articles VI, VII or VIII; provided,
that, with respect to a failure to observe or perform the covenants set
forth in Sections 7.1(g), 7.1(k), 7.1(l), 7.3, or 7.6, such failure
shall continue for fifteen (15) days or more after written notice
thereof to the Borrower from the Administrative Agent or any Lender; or
(c) Other Covenants. The Borrower shall fail to observe or
perform any covenant or agreement contained in this Agreement or any
other Loan Document (other than those covered by Section 9.1(a) or (b))
for thirty (30) days or more after written notice thereof has been
given to the Borrower by the Administrative Agent or the Required
Lenders; or
(d) Representation or Warranty. Any representation, warranty,
certification or statement made by the Borrower or any Material
Subsidiary in this Agreement, any other Loan Document or in any
certificate, financial statement or other document delivered pursuant
hereto or thereto shall prove to have been incorrect in any material
respect when made or deemed to have been made; or
(e) Cross-Default. Without limiting the terms of Section
9.1(n) or Section 9.1(o), the Borrower or any of its Subsidiaries (i)
shall fail to make any payment in respect of any Debt when due (beyond
the period of grace, if any, and whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) which Debt is
in an aggregate principal amount of $10,000,000 or more; or (ii) shall
fail to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or
instrument relating to any such Debt, and such failure shall continue
after the applicable grace or notice period, if any, specified in the
document relating thereto if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such Debt
or beneficiary or beneficiaries of such Debt (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, such Debt to be declared to be due and payable prior to its
stated maturity or cash collateral in respect thereof to be demanded;
or
(f) Insolvency; Voluntary Proceeding. The Borrower or any of
its Material Subsidiaries shall (i) generally fail to pay, or admit in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) commence any Insolvency Proceeding with respect to
itself; or (iii) take any action to effectuate or authorize any of the
foregoing or the Borrower or any of its Material Subsidiaries shall
voluntarily cease to conduct its business in the ordinary course
except, in the case of Material Subsidiaries, as expressly permitted by
the terms of Section 8.4 of this Agreement; or
(g) Involuntary Proceeding. (i) Any involuntary Insolvency
Proceeding shall be commenced or filed against the Borrower or any of
its Material Subsidiaries, or any writ, judgment, warrant of
attachment, execution or similar process, shall be issued or levied
against all or a substantial part of the Borrower or any of its
Subsidiaries' assets, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within
sixty (60) days after commencement, filing or levy; (ii) the Borrower
or any of its Material Subsidiaries shall admit the material
allegations of a petition against it in any Insolvency Proceeding, or
an order for relief (or similar order under non-U.S. law) shall be
ordered in any Insolvency Proceeding; or (iii) the Borrower or any of
its Material Subsidiaries shall acquiesce in the appointment of a
receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar Person for itself or a
substantial portion of its assets or business; or
(h) ERISA Event. Any ERISA Event shall have occurred with
respect to a Plan and, thirty (30) days after notice thereof shall have
been given to the Borrower by the Administrative Agent or any Lender,
(i) such ERISA Event shall still exist and (ii) the sum (determined as
of the date of occurrence of such ERISA Event) of the Insufficiency of
such Plan and the Insufficiency of any and all other Plans with respect
to which an ERISA Event shall have occurred and then exist (or, in the
case of a Plan with respect to which an ERISA Event described in
clauses (iii) through (vi) of the definition of ERISA Event shall have
occurred and then exist, the liability related thereto) exceeds
$2,500,000; or
(i) Withdrawal Liability. The Borrower, any of its
Subsidiaries or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Borrower, any of its Subsidiaries or any ERISA Affiliate
as Withdrawal Liability (determined as of the date of such
notification), exceeds $2,500,000; or
(j) Monetary Judgments. One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards
shall be entered against the Borrower or any of its Subsidiaries
involving in the aggregate, a liability (not fully covered by
independent third-party insurance) as to any single transaction or
series of related transactions, incidents or conditions, of $10,000,000
or more, and the same shall remain unsatisfied, unvacated and unstayed
pending appeal for a period of forty-five (45) days after the entry
thereof; or
(k) Non-Monetary Judgments. Any non-monetary judgment, order
or decree shall be rendered against the Borrower or any of its
Subsidiaries which does or would reasonably be expected to have a
Material Adverse Effect, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of forty-five (45)
days after the entry thereof; or
(l) Change of Control. There shall occur any Change of
Control; or
(m) Guarantor Defaults. Any of the Guarantors shall fail in
any material respect to perform or observe any term, covenant or
agreement in the Subsidiary Guaranty and such failure shall not be
remedied within any applicable cure period set forth therein; or the
Subsidiary Guaranty shall for any reason be partially (including with
respect to future advances) or wholly revoked or invalidated, or
otherwise cease to be in full force and effect, or any of the
Guarantors shall contest in any manner the validity or enforceability
thereof or deny that it has any further liability or obligation
thereunder; or
(n) Senior Debt Securities. The occurrence and continuation of
any Event of Default under and as defined in the Senior Indenture; or
(o) Subordinated Debt Securities. The occurrence and
continuation of any Event of Default under and as defined in the
Subordinated Indenture; or
(p) Ownership of Guarantors. Except as otherwise permitted in
Section 8.4, the Borrower shall cease to own and control, both
beneficially and of record, (i) one hundred percent (100%) of the
outstanding voting securities of any of the Guarantors other than
Florimex or (ii) at least seventy percent (70%) of the outstanding
voting securities of Florimex; or
(q) Material Adverse Effect. There shall occur a Material
Adverse Effect as determined by the Required Lenders and such condition
shall continue fifteen (15) days or more after written notice thereof
to the Borrower from the Administrative Agent or the Required Lenders.
Section 9.2 Remedies.
If any Event of Default occurs and is continuing, the Administrative
Agent shall, at the request of, or may, with the consent of, the Required
Lenders:
(a) declare the Commitment of each Lender to make Advances to
be terminated, whereupon such Commitments shall forthwith be
terminated;
(b) declare the unpaid principal amount of all the Notes, all
interest accrued and unpaid thereon, and all other Obligations payable
hereunder or under any other Loan Document to be immediately due and
payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders all rights
and remedies available to it and the Lenders under the Loan Documents
or applicable law;
provided, however, that upon the occurrence of any event specified in paragraph
(f) or (g) of Section 9.1 above, the obligation of each Lender to make Advances
shall automatically terminate and the unpaid principal amount of the Notes and
all interest and other Obligations as aforesaid shall automatically become due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower, or any further act of
the Administrative Agent or any Lender.
ARTICLE X
ADMINISTRATIVE AGENT, DOCUMENTATION AGENT AND CO-AGENTS
Section 10.1 Authorization and Action.
Each Lender hereby appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement and each other Loan Document as are delegated to the Administrative
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement and the other Loan Documents (including, without limitation,
enforcement or collection of the Notes and the Subsidiary Guaranty), the
Administrative 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 upon all Lenders
and all holders of Notes; provided, that the Administrative Agent shall not be
required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to this Agreement, any other Loan Document or
applicable law. The Administrative Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement. The Documentation Agent and the Co-Agents, in their respective
capacities as such, shall not have any duties or obligations whatsoever under
this Agreement, the Notes, the Subsidiary Guaranty or any of the other Loan
Documents.
Section 10.2 Administrative Agent's Reliance, etc.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, except for its or
their own gross negligence or willful misconduct as determined in a final,
nonappealable judgment by a court of competent jurisdiction. Without limitation
of the generality of the foregoing, the Administrative Agent: (i) may treat the
payee of any Note as the holder thereof until the Administrative Agent receives
and accepts an Assignment and Acceptance entered into by the Lender who is the
payee of the Note and an Eligible Assignees as assignee as provided herein; (ii)
may consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken, in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement or any other Loan Document; (iv) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or any other Loan
Document on the part of the Borrower or any Guarantor or to inspect the property
(including the books and records) of the Borrower or any Guarantor; (v) shall
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
Section 10.3 NationsBank, FUNB, Rabobank, SocGen and Affiliates.
With respect to its Commitment, the Advances made by it and the Note
issued to it, each of NationsBank, FUNB, Rabobank and SocGen shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Administrative Agent, Documentation Agent or a
Co-Agent, as appropriate; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include NationsBank, FUNB, Rabobank and SocGen in
their individual capacities. NationsBank, FUNB, Rabobank and SocGen and their
respective Affiliates may accept deposits from, lend money to, act as trustee
under indentures for, and generally engage in any kind of business with, the
Borrower, the Guarantors, any of their Subsidiaries or Affiliates and any Person
who may do business with or own securities of the Borrower, the Guarantors, or
any such Subsidiaries or Affiliates, all as if NationsBank were not the
Administrative Agent, FUNB were not the Documentation Agent and Rabobank and
SocGen were not the Co-Agents and without any duty to account therefor to the
Lenders.
Section 10.4 Lender Credit Decision.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on the
financial statements referred to in Section 5.4 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent 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 this Agreement.
Section 10.5 Indemnification.
The Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrower), ratably according to the respective Commitment
Percentages of each Lender from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any of the other Loan Documents
or any action taken or omitted by the Administrative Agent under this Agreement
or any of the other Loan Documents; provided that no Lender shall be liable to
the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent that any of the foregoing is found in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for its Commitment Percentage of any out-of-pocket
expenses (including counsel fees) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any of the other Loan Documents, to
the extent that the Administrative Agent is not reimbursed for such expenses by
the Borrower.
Section 10.6 Successor Administrative Agent.
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any time
with cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Administrative Agent gives notice of resignation or the Required
Lenders, removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a Lender or a commercial bank organized or
licensed under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under each of the other Loan
Documents. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder.
Section 10.7 Notice of Default.
` The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Event of Default or Default unless the Administrative
Agent has received notice from a Lender or the Borrower or any Guarantor
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to any such Default or Event of Default as shall be
reasonably directed by the Required Lenders, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders subject to the requirements
of this Agreement that certain actions be taken only with the consent of a
specified percentage of the Lenders.
Section 10.8 Administrative Agent's Fee.
The Borrower shall pay the Administrative Agent a fee in such amounts
and at such times as previously agreed upon by the Administrative Agent and the
Borrower pursuant to the Fee Letter.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Notices.
All notices and other communications provided for hereunder shall be in
writing (including telecopier, provided, however that any telecopied notices or
communications shall be confirmed by delivery of the manually-signed original of
any such notice or communication by first-class mail, postage prepaid,
postmarked no later than five (5) Business Days after the date of any such
telecopied notice or communication) and mailed, or delivered, if to the
Borrower, at its address at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Vice President and Treasurer, Telecopier No. (804)
791-0349; if to any Lender, at its address for notices specified on its
signature page hereto or its notice address specified in the Assignment and
Acceptance pursuant to which it became a Lender; if to the Administrative Agent,
at its address at NationsBank, N.A., 0000 X. Xxxx Xxxxxx, 0xx Xxxxx Xxxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxx X. Xxxxx, III, Telecopier No.
(000) 000-0000; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when mailed, telecopied, telegraphed, telexed
or cabled, be effective when deposited in the mails postage prepaid, confirmed
by electronic confirmation, delivered to the telegraph company, confirmed by
telex answerback or delivered to the cable company, respectively, except that
notices and communications to the Administrative Agent pursuant to Articles II,
III or X shall not be effective until received by the Administrative Agent.
Section 11.2 No Waivers.
No failure or delay by the Administrative Agent or any Lender in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise or any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 11.3 Expenses; Indemnity.
(a) The Borrower agrees to pay on demand (i) all reasonable
out-of-pocket costs and expenses of the Administrative Agent, including fees and
disbursements of special counsel for the Administrative Agent, in connection
with the preparation and administration of this Agreement and the Notes, any
waiver or consent hereunder and thereunder or any amendment hereof or thereof or
any Default or alleged Default hereunder and thereunder and (ii) if an Event of
Default occurs, all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including reasonable fees and disbursements
of counsel (including staff counsel), in connection with such Event of Default
and collection and other enforcement proceedings resulting therefrom.
(b) In addition to any other indemnity provided for herein or in any
other Loan Document, the Borrower hereby indemnifies the Administrative Agent,
the Documentation Agent, the Co-Agents and each Lender and their respective
shareholders, directors, agents, officers, subsidiaries and affiliates (each, an
"Indemnified Party") from and against any and all liabilities, obligations,
claims, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable fees and expenses of counsel) which may be imposed on,
incurred by, or asserted against any Indemnified Party in, or in connection with
the preparation for a defense of, any litigation, proceeding or investigation or
claim instituted or conducted by any Governmental Authority or any other Person
(other than the Borrower) with respect to any aspect of, or any transaction
contemplated by, or referred to in, or any matter related to, this Agreement or
any of the other Loan Documents contemplated hereby, whether or not any
Indemnified Party is a party thereto, except to the extent that any of the
foregoing is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnified Party or the violation by such Indemnified Party of any latter
regulation in the conduct of its business. Additionally, the Borrower hereby
indemnifies the Indemnified Parties and agrees to defend and hold the
Indemnified Parties harmless from and against any and all losses, damages
(including, without limitation, consequential damages), costs, claims,
liabilities, actions, judgments, actions, suits, disbursements, obligations,
claims, penalties, fees, injuries or expenses of whatever kind or nature
(including, without limitation, reasonable counsel fees and costs), which any
Indemnified Party may sustain or incur in connection with any Environmental
Claim asserted against any Indemnified Party in connection with or relating to
(i) the Borrower's or any of its Subsidiaries, premises, including, without
limitation, any real or other property now or formerly owned, operated, leased
or used by the Borrower, any of its Subsidiaries or any of their respective
predecessors; or (ii) the Borrower's, any of its Subsidiaries, or any of their
respective predecessors, operations, whether such operations took place before
or after the date of this Agreement, except to the extent that any of the
foregoing is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnified Party. The indemnification in this Section 11.3 shall survive
termination of this Agreement and the other documents executed in connection
herewith as well as the payment of all Notes.
Section 11.4 Amendments, etc.
Any provision of this Agreement, the Notes or any other Loan Document
(other than the Fee Letter, which may be amended only in accordance with the
terms thereof) may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders (or
the Administrative Agent with the consent of the Required Lenders) and, if the
rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent; provided, that no such amendment or waiver shall, unless
signed by all the Lenders, (a) increase or extend the Commitment of any Lender
or subject any Lender to any additional obligation, (b) reduce the principal of
or rate of interest on any Advance or any fees payable hereunder, (c) postpone
the date fixed for any payment of principal of or interest on any Advance or any
fees payable hereunder, (d) change the provisions of this Section 11.4, the
definition of "Required Lenders", or otherwise change the percentage of Lenders
required to take any action hereunder or under the Loan Documents, (e) release
the Borrower from its Obligations, or (f) except in connection with a
disposition of the stock or assets of a Guarantor permitted pursuant to the
terms of this Agreement (or otherwise consented to by the Required Lenders),
release all or substantially all of the Guarantors from their obligations under
the Subsidiary Guaranty.
Section 11.5 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or otherwise transfer any of its rights
or delegate any of its duties under this Agreement and that no Lender may assign
or otherwise transfer any of its rights hereunder, except as specifically
provided herein.
(b) Each Lender may (and, so long as no Event of Default has occurred
and is continuing, at the election of the Borrower given pursuant to Section 3.8
any Lender shall) 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 Commitment and the Advances owing to it), with the
consent of the Administrative Agent and the Borrower, which consent shall not
unreasonably be withheld or delayed; provided, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all rights and
obligations of such Lender under the Advances made by such Lender and the
Commitment held by such Lender, (ii) unless waived in writing by the
Administrative Agent and the Borrower, the amount of the Commitment of an
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000, except that in the case of an assignment to an existing Lender the
amount of the Commitment being assigned may be less than $5,000,000 if the
assigning Lender is assigning its entire Commitment or is retaining a Commitment
of not less than $5,000,000, and (iii) each such assignment shall be to an
Eligible Assignee. Prior to effecting any such assignment, the assigning Lender
shall give the Administrative Agent reasonable notice of its intent to do so,
requesting that the Administrative Agent seek the consent of the Borrower
required by this Section 11.5(b) and demonstrating that, if such consent is
obtained, the proposed assignment will otherwise conform to the requirements of
this Section 11.5(b). The Administrative Agent shall, as promptly as is
reasonably practicable after receipt of such notice, notify such Lender whether
such consent has been obtained. If such consent has been obtained, the parties
to such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with any Note subject to such assignment and
an administrative fee of $3,500, no later than five (5) Business Days prior to
the effective date of any such assignment. Upon such execution, delivery and
acceptance, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) The Administrative Agent shall maintain at its address referred to
in Section 11.1 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances 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 Administrative Agent, the Documentation Agent, the Co-Agents 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.
(d) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any of
the other Loan Documents; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any of the Guarantors or the performance or observance by the
Borrower or any of the Guarantors of any of its Obligations; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 5.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender 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, this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers, under this Agreement as are delegated to the Administrative Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit A hereto (or such other form as shall be
acceptable to the Administrative Agent), (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note a new Note payable to such Eligible Assignee in an amount equal to the
outstanding principal balance of the ratable Commitment assigned to it pursuant
to such Assignment and Acceptance, and, if the assigning Lender has retained a
portion of the Commitment hereunder, a new Note payable to the assigning Lender
in an amount equal to the ratable portion of the Commitment retained by it
hereunder, as the case may be. Such new Note shall be in an aggregate principal
amount equal to the aggregate Commitment of such surrendered Note, shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit A, hereto.
(f) Each Lender may sell participations to one or more banks or (other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note held by it); provided, however, that (i)
such Lender's obligations under this Agreement (including, without limitation,
the Commitment to the Borrower hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (v) such Lender shall notify the
Administrative Agent of any such sale promptly after the making thereof,
specifying the purchaser and the interest purchased, and the Administrative
Agent shall forward a copy of such notice to the Borrower. Notwithstanding any
other provision of this Agreement, no sale or existence of any participation
shall increase any amount payable by the Borrower pursuant to Article III
hereof.
(g) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 11.5, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower and the Subsidiaries furnished to such
Lender by or on behalf of the Borrower or the Subsidiaries; provided that, prior
to any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any confidential
information relating to the Borrower and its Subsidiaries received by it from
such Lender in a writing containing substantially the terms of Section 11.12.
(h) Notwithstanding any other provision set forth in this Agreement
which may be to the contrary, any Lender may at any time (i) assign all or any
portion of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitment, the Advances owing to it and
the Note held by it) to any Affiliate of such Lender, subject to the proviso of
the definition of "Eligible Assignee" (with written notice to the Borrower and
the Administrative Agent) and (ii) create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Federal Reserve Board.
(i) The Administrative Agent and the Borrower may, for all purposes of
this Agreement, treat any Lender as the holder of any Note drawn to its order
(and owner of the Advances evidenced thereby) until written notice of
assignment, transfer or participation shall have been received by them.
(j) If any Reference Lender assigns or otherwise transfers its Note
other than pursuant to paragraph (h) above to any unaffiliated institution, the
Administrative Agent shall, in consultation with the Borrower, appoint another
Lender to act as a Reference Lender hereunder; provided that in no event shall
there be more than three (3) Reference Lenders at any given time.
Section 11.6 Right of Set-off.
Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent
specified by Section 9.2 to authorize the Administrative Agent to declare the
Notes due and payable, each Lender 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 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 other
Loan Documents, whether or, not such Lender shall have made any demand under
this Agreement and although such obligations may be contingent and unmatured.
Each Lender agrees promptly to notify the Borrower after any such set-off and
application made by such Lender, provided 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 11.6 are in addition to other rights and remedies
(including, without limitation, other rights; of set-off) which such Lender may
have.
Section 11.7 CONSENT TO JURISDICTION.
(a) THE BORROWER, IN RESPECT OF ITSELF AND ITS PROPERTIES, REPRESENTS
THAT IT IS SUBJECT TO (AND HEREBY IRREVOCABLY SUBMITS TO) THE NON-EXCLUSIVE
JURISDICTION OF ANY COURT IN THE STATE OF NORTH CAROLINA IN MECKLENBURG COUNTY,
OR OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH CAROLINA, IN RESPECT
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE NOTES, AND THE BORROWER IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT. THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, ANY OBJECTION TO THE LAYING OF THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORM.
(b) THE BORROWER IRREVOCABLY CONSENTS TO PROCESS BEING SERVED IN ANY
SUIT, ACTION OR PROCEEDING OF THE NATURE REFERRED TO IN PARAGRAPH (a) OF THIS
SECTION 11.7 BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED AIR MAIL,
POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE ADDRESS OF THE BORROWER
SPECIFIED IN OR DESIGNATED PURSUANT TO SECTION 11.1. THE BORROWER IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ALL
CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE AND AGREES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT SAID SERVICE (A) SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE BORROWER IN ANY
SUCH SUIT, ACTION OR PROCEEDING AND (B) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO THE BORROWER.
The foregoing provisions shall not limit the right of any Lender, the
Administrative Agent or any other party hereto to serve process in any other
manner permitted by law or limit the right of any Lender, the Administrative
Agent or other party hereto to bring any suit, action or proceeding or to obtain
execution on any judgment rendered in any suit, action or proceeding in any
other appropriate jurisdiction or in any other matter.
Section 11.8 VIRGINIA LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
Section 11.9 Counterparts; Effectiveness.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective
when the Administrative Agent shall have received (i) counterparts hereof signed
by all parties and (ii) the fees referred to in Section 4.1(d). In the case of
the Lenders only, such execution may be evidenced by the execution and delivery
of signature pages by facsimile transmission to the Administrative Agent
together with a letter addressed to the Administrative Agent confirming that the
original executed signature pages will be delivered to the Administrative Agent
by a reputable overnight courier service.
Section 11.10 WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, THE CO-AGENTS AND THE LENDERS
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 11.11 Termination of Existing Credit Agreement.
By joining in the execution and delivery of this Agreement, each of the
Lenders who is a party to that certain Credit Agreement, dated as of March 15,
1996, by and among the Borrower, the Lenders listed therein, the Administrative
Agent and Bank of America, National Trust and Savings Association, Crestar Bank
and FUNB, as Co-Agents thereunder, as amended by that certain letter agreement
dated as of March 14, 1997, hereby irrevocably waives all requirements for prior
notice of the termination of its respective commitments thereunder and hereby
agrees with the Borrower that the foregoing credit agreement shall terminate on
the effective date of this Agreement provided for in Section 11.9 and shall be
of no further force or effect thereafter (except for any indemnification
provisions thereof which shall survive in accordance with the terms of such
agreement).
Section 11.12 Confidentiality.
The Administrative Agent, the Documentation Agent, the Co-Agents and the Lenders
agree to keep confidential (and to cause their respective affiliates, officers,
directors, employees, agents and representatives to keep confidential) all
information, materials and documents furnished to the Administrative Agent, the
Documentation Agent, any such Co-Agent or any such Lender by or on behalf of the
Borrower or any Subsidiary (whether before or after the Closing Date) which
relates to the Borrower or any Subsidiary (the "Information"). Notwithstanding
the foregoing, the Administrative Agent, the Documentation Agent, each Co-Agent
and each Lender shall be permitted to disclose Information (i) to its
affiliates, officers, directors, employees, agents and representatives in
connection with its participation in any of the transactions evidenced by this
Agreement or any other Loan Documents or the administration of this Agreement or
any other Loan Documents; (ii) to the extent required by applicable laws and
regulations or by any subpoena or similar legal process, or requested by any
Governmental Authority; (iii) to the extent such Information (A) becomes
publicly available other than as a result of a breach of this Agreement or any
agreement entered into pursuant to clause (iv) below, (B) becomes available to
the Administrative Agent, the Documentation Agent, such Co-Agent or such Lender
on a non-confidential basis from a source other than the Borrower or any
Subsidiary or (C) was available to the Administrative Agent, the Documentation
Agent, such Co-Agent or such Lender on a non-confidential basis prior to its
disclosure to the Administrative Agent, the Documentation Agent, the Co-Agent or
such Lender by the Borrower or any Subsidiary; (iv) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first specifically agrees
in a writing furnished to and for the benefit of the Borrower to be bound by the
terms of this Section 11.12; or (v) to the extent that the Borrower shall have
consented in writing to such disclosure. Nothing set forth in this Section 11.12
shall obligate the Administrative Agent, the Documentation Agent, any Co-Agent
or any Lender to return any materials furnished by the Borrower or any
Subsidiary.
F:\DOCS\DJQ\BANKING\254706_8.DOC
F:\DOCS\DJQ\BANKING\254706_8.DOC
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
"BORROWER"
DIMON INCORPORATED
By________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
and
By_______________________________
Name: Xxxx X. Xxxxxxxxx, III
Title: Vice President and Secretary
ADDRESS FOR NOTICES:
000 Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
ADMINISTRATIVE AGENT: NATIONSBANK, N.A., as Administrative Agent
By________________________________
Name: Xxxx X. Xxxxx, III
Title: Executive Vice President
DOCUMENTATION AGENT: FIRST UNION NATIONAL BANK,
as Documentation Agent
By________________________________
Name:
Title:
CO-AGENTS: COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH,
as Co-Agent
By________________________________
Name:
Title:
By________________________________
Name:
Title:
SOCIETE GENERALE, as Co-Agent
By________________________________
Name:
Title:
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
"LENDERS"
COMMITMENT NATIONSBANK, N.A.
$60,000,000.00
By________________________________
Name: Xxxx X. Xxxxx, III
Title: Executive Vice President
Domestic and Eurodollar Lending Offices
4th Floor Pavilion
0000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Address for Notices
4th Floor Pavilion
0000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxx X. Xxxxx, III
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: BANK OF AMERICA NT & SA
$25,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: CRESTAR BANK
$30,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Address for Notices
X.0. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: FIRST UNION NATIONAL BANK
$55,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxxx Xxxxxxxxx Xxxxxx, (VA-7441)
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Address for Notices
First Union National Bank
000 Xxxxx Xxxxxxxxx Xxxxxx (VA-7441)
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
With a copy to:
First Union National Bank
000 Xxxxx Xxxxxxxxx Xxxxxx (VA-7234)
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: COOPERATIEVE CENTRALE RAIFFEISEN-
$45,000,000.00 BOERENLEENBANK B.A., "RABOBANK
NEDERLAND," NEW YORK BRANCH
By________________________________
Name:
Title:
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Services Department
Telecopier No.: (000) 000-0000
With a copy to:
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxxx Xxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: SIGNET BANK
$15,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Address for Notices
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. X. Xxxxxxx Link
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: WACHOVIA BANK, N.A.
$25,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxx Xxxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: SOCIETE GENERALE
$45,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxxxxxxx Xxxxxx X.X., Xxxxx 00000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: BANK OF TOKYO-MITSUBISHI TRUST COMPANY
$25,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Address for Notices
Xxxxx 000
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Mr. Xxxxxxx Xxxxx
Telecopier No.: (000) 000-0000
With a copy to:
North American Legal & Public Affairs Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxx XxXxxxxxx
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: ABN AMRO BANK N.V. NEW YORK BRANCH
$15,000,000.00
By________________________________
Name:
Title:
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxx Xxxxxx
Xxxxxxxxxxx Xxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxxx Xxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: THE BANK OF NOVA SCOTIA
$15,000,000.00
By______________________________
Name: J.R. Trimble
Title: Senior Relationship Manager
Domestic and Eurodollar Lending Offices
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxx
Telecopier No.: (000) 000-0000
Address for Notices
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: THE SUMITOMO BANK, LIMITED,
$15,000,000.00 NEW YORK BRANCH
By______________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xx Xxxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
With a copy to:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: BAYERISCHE VEREINSBANK AG,
$25,000,000.00 NEW YORK BRANCH
By________________________________
Name:
Title:
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Ms. Xxxxxx Hole
Telecopier No.: (000) 000-0000
Address for Notices
Trade Finance
Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: BANQUE FRANCAISE DU COMMERCE EXTERIEUR
$15,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
Address for Notices
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxx
Telecopier: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: CORESTATES BANK, N.A.
$15,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Address for Notices
0000 Xxxxxxxx Xxxxxx
XX-0-0-0-00
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: ISTITUTO BANCARIO SAN PAOLO DI TORINO S.P.A.
$10,000,000.00
By________________________________
Name:
Title:
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: STANDARD CHARTERED BANK
$15,000,000.00
By________________________________
Name:
Title:
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
Address for Notices
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxx
Telecopier: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: BANCA MONTE DEI PASCHI DI SIENA S.P.A.
$15,000,000.00
By________________________________
Name:
Title:
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: CREDIT LYONNAIS ATLANTA AGENCY
$25,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
000 Xxxxxxxxx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx Xxxxx
Telecopier No.: (000) 000-0000
Address for Notices
000 Xxxxxxxxx Xxxxxx XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
[Signature Page to Credit Agreement dated as of June 27, 1997 among DIMON
Incorporated, as Borrower, NationsBank, N.A., as Administrative Agent, First
Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and the lenders listed on the signature pages
thereof, as Lenders]
COMMITMENT: THE SANWA BANK, LIMITED, ATLANTA AGENCY
$10,000,000.00
By________________________________
Name:
Title:
Domestic and Eurodollar Lending Offices
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Hara
Telecopier: (000) 000-0000
Address for Notices
000 Xxxxxxxxx Xxxxxx NE, Suite 0000
Xxxxxxx-Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
SCHEDULE 1.1
Commencing on the date on which the Administrative Agent first receives
the officer's certificate to be furnished by the Borrower pursuant to Section
7.1(c) of this Agreement, the Applicable Margin applicable to Eurodollar Rate
Advances shall be determined (subject to adjustment as set forth in the
definition of "Applicable Margin") based upon the ratings of Standard & Poor's
Corporation ("S&P") and Xxxxx'x Investors Service, Inc. ("Moody's") for the
Borrower's senior, unsecured, non-credit enhanced long term indebtedness for
money borrowed ("Index Debt"). The Applicable Margin shall be the rate per annum
set forth opposite the applicable rating or ratings category (each a "Category")
below:
Ratings Applicable to Index Debt Applicable Margin
-------------------------------- -----------------
CATEGORY 1
----------
BBB or higher by S&P
Baa2 or higher by Moody's .40%
CATEGORY 2
----------
BBB- by S&P
Baa3 by Moody's .50%
CATEGORY 3
----------
BB+ by S&P
Ba1 by Moody's .70%
CATEGORY 4
----------
BB by S&P
Ba2 by Moody's .80%
CATEGORY 5
----------
BB- or lower by S&P
Ba3 or lower by Moody's 1.00%
For purposes of the foregoing, if the ratings established by Moody's and S&P
shall fall within different Categories, then (a) if the ratings established by
Moody's and S&P differ by only one Category, the rating in the numerically
higher (or inferior) Category shall be disregarded or (b) if the ratings
established by Moody's and S&P differ by more than one Category, the Applicable
Margin will be determined by reference to the numerically highest (or most
inferior) Category falling between such different Categories. If any rating
established by Moody's or S&P shall be changed (other than as a result of a
change in the rating system of Moody's or S&P), the corresponding change in the
Applicable Margin shall be effective as of the date on which such changed rating
is first announced by the applicable rating agency. If the rating system of
either Moody's or S&P shall change during the term of this Agreement, the
Borrower and the Required Lenders, acting through the Administrative Agent,
shall negotiate in good faith to amend the references to specific ratings in
this Schedule 1.1 to reflect such changes in the rating system.
Each change in the Applicable Margin shall apply to all Eurodollar Rate Advances
that are outstanding at any time during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next change.
SCHEDULE 2.10
Commencing on the date on which the Administrative Agent first receives
the officer's certificate to be furnished by the Borrower pursuant to Section
7.1(c) of this Agreement, the commitment fees pursuant to Section 2.10 (the "Fee
Rate") shall be based upon the ratings of Standard & Poor's Corporation ("S&P")
and Xxxxx'x Investors Service, Inc. ("Moody's") for the Borrower's senior,
unsecured, non-credit enhanced long term indebtedness for money borrowed ("Index
Debt"). The Fee Rate shall be the rate per annum set forth opposite the
applicable rating or ratings category (each a "Category") below:
Ratings Applicable to Index Debt Fee Rate
-------------------------------- --------
CATEGORY 1
----------
BBB or higher by S&P
Baa2 or higher by Moody's .15%
CATEGORY 2
----------
BBB- by S&P
Baa3 by Moody's .1875%
CATEGORY 3
----------
BB+ by S&P
Ba1 by Moody's .25%
CATEGORY 4
----------
BB by S&P
Ba2 by Moody's .30%
CATEGORY 5
----------
BB- or lower by S&P
Ba3 or lower by Moody's 0.375%
For purposes of the foregoing, if the ratings established by Moody's and S&P
shall fall within different Categories, then (a) if the ratings established by
Moody's and S&P differ by only one Category, the rating in the numerically
higher (or inferior) Category shall be disregarded or (b) if the ratings
established by Moody's and S&P differ by more than one Category, the Fee Rate
will be determined by reference to the numerically highest (or most inferior)
Category falling between such different Categories. If any rating established by
Moody's or S&P shall be changed (other than as a result of a change in the
rating system of Moody's or S&P), the corresponding change in the Fee Rate shall
be effective as of the date on which such changed rating is first announced by
the applicable rating agency. If the rating system of either Moody's or S&P
shall change during the term of this Agreement, the Borrower and the Required
Lenders, acting through the Administrative Agent, shall negotiate in good faith
to amend the references to specific ratings in this Schedule 2.10 to reflect
such changes in the rating system.
Each change in the Fee Rate shall apply to the calculation of the commitment fee
pursuant to Section 2.10 on each day during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next change.
EXHIBIT A TO
CREDIT AGREEMENT
ASSIGNMENT AND ACCEPTANCE
Dated ____________, 19__
Reference is made to the Credit Agreement dated as of June 27, 1997
(the "Credit Agreement") among DIMON INCORPORATED, a Virginia corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement), NATIONSBANK,
N.A., as administrative agent (the "Administrative Agent"), FIRST UNION NATIONAL
BANK, as Documentation Agent (the "Documentation Agent"), and COOPERATIEVE
CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND," NEW YORK BRANCH
and SOCIETE GENERALE, as Co-Agents (the "Co-Agents"). Terms defined in the
Credit Agreement are used herein with the same meaning.
______________________________ (the "Assignor") and ________________
(the "Assignee") agree as follows:
The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, all of the Assignor's rights and
obligations under the Credit Agreement as of the date hereof with respect to the
percentage interest of the Aggregate Commitments specified in Section 1 of
Schedule 1 hereto and, to the extent of the interest conveyed herein, the Notes
held by the Assignor. After giving effect to such sale and assignment, the
amount of the Assignee's Commitment and the amount of the Advances owing to the
Assignee will be as set forth in Section 2 of Schedule 1.
The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
and the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement 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 the Borrower or any of its Subsidiaries or the
performance or observance by the Borrower or any of its Subsidiaries of any of
its obligations under the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Notes
referred to in paragraph 1 above and requests that the Administrative Agent
exchange such Notes for a new Note payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto, and if
the Assignor retained any Commitment under the Credit Agreement, a new Note
payable to the order of the Assignor in an amount equal to the Commitment so
retained by the Assignor, all as specified in Section 3 of Schedule 1.
The Assignee (i) confirms that it has received a copy of the Credit
Agreement and the other Loan Documents (other than the Fee Letter), together
with copies of the financial statements referred to in Section 5.4 of the Credit
Agreement 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 Administrative 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 and the other Loan Documents; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Administrative Agent to take such
action as administrative agent on its behalf and to exercise such powers under
the Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; (vi) agrees to be
bound by the confidentiality provisions of Section 11.12 of the Credit
Agreement; [and] (vii) specifies that its Domestic Lending Office (and address
for notices) and Eurodollar Lending Office are the offices set forth beneath its
name on the signature pages hereof [and] [(ix) attaches the IRS Form W-8, 4224
or 1001, as appropriate, or any successor form prescribed by the IRS, and
provides the certificates, if any, as required by Section 3.5(f) of the Credit
Agreement.](1)
As consideration for the sale, assignment and transfer contemplated by
Section 1 hereof, the Assignee shall pay to the Assignor on the Effective Date
(as defined below) in immediately available funds an amount equal to
$__________________________, representing the principal amount of Advances
assigned hereunder on the Effective Date (as defined below).
Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of this
Assignment and Acceptance (the "Effective Date") shall be the date specified in
Section 4 of Schedule 1; provided that the following conditions precedent have
been satisfied on or before the Effective Date:
this Agreement shall have been executed and delivered by the
Assignor and the Assignee;
the consent of the Borrower and the Administrative Agent
required for an effective assignment of the Assignor's interest
specified herein under Section 11.5 of the Credit Agreement shall have
been duly obtained and shall be in full force and effect as of such
date;
the Assignee shall have paid to the Assignor all amounts due
to the Assignor under this Agreement;
the Assignee shall have delivered the documents required by
Section 3 hereof, if applicable; and
the processing fee referred to in Section 8 hereof shall have
been paid to the Administrative 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.
From and after the Effective Date, the Administrative 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.
The Assignee and the Assignor have attached a check in the amount of
$3,500 payable by the [Assignee] [Assignor] [Borrower] to the order of the
Administrative Agent, or the Administrative Agent has received $3,500 by wire
transfer of immediately available funds from the [Assignee] [Assignor]
[Borrower], as a processing and recording fee in satisfaction of Section 11.5 of
the Credit Agreement.
THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
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.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule I hereto.
--------------------
(1) Insert if the Assignee is organized under the laws of a jurisdiction
outside the United States.
SCHEDULE 1
to
Assignment and Acceptance
Dated _____________, 19__
Section 1. Percentage Interest of Aggregate
Commitments Purchased by Assignee: __________%
Section 2. Amount of:
Assignee's Commitment: $__________
Aggregate Outstanding Principal Amount of
Advances owing to the Assignee $__________
Section 3.
A Note payable to the order of the Assignee
Dated: _______________, 19__
Principal amount:
A Note payable to the order of the Assignor
Dated: ________________, 19__
Principal amount:
Section 4. Effective Date: ____________, 19__
[NAME OF ASSIGNOR]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
Assignee's Domestic Lending Office
(and address for notices):
___________________________________
___________________________________
Attention: ________________________
Assignee's Eurodollar Lending
Office:
___________________________________
___________________________________
Attention: ________________________
Consented to this _____ day of ______________, 19__
DIMON INCORPORATED
By________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Treasurer
and
By_______________________________
Name: Xxxx X. Xxxxxxxxx, III
Title: Vice President and Secretary
Accepted and consented to this _____ day of _______________, 19__
NATIONSBANK, N.A., as Administrative Agent
By: ________________________________
Name:
Title:
EXHIBIT B TO
CREDIT AGREEMENT
GUARANTY
(Material Domestic Subsidiaries)
GUARANTY, dated as of June 27, 1997 (this "Guaranty"), made by certain
subsidiaries of DIMON Incorporated, a Virginia corporation (the "Borrower"), now
or hereafter becoming parties hereto (collectively, the "Guarantors"), in favor
of NationsBank, N.A., as administrative agent (the "Administrative Agent"), the
Lenders (as defined below) and all other Persons holding any of the Guaranty
Obligations (as defined below).
PRELIMINARY STATEMENTS.
Certain lenders (together with other lenders that may from time to time
become parties thereto the "Lenders"), the Administrative Agent, First Union
National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, have entered into a Credit Agreement dated as of
June 27, 1997 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"; terms defined therein and not otherwise defined herein
being used herein as therein defined) with the Borrower.
Pursuant to the Credit Agreement, the Lenders have agreed to make
Advances to the Borrower in accordance with the terms thereof.
It is a condition precedent to the making of any Advance by the Lenders
under the Credit Agreement that the Guarantors shall have executed and delivered
this Guaranty.
The Guarantors will derive substantial direct and indirect benefit from
the transactions contemplated by the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Advances under the Credit Agreement, each Guarantor hereby
agrees as follows:
SECTION 1. Guaranty. Each Guarantor hereby jointly and severally,
irrevocably and unconditionally, guarantees the due and punctual payment of all
present and future indebtedness and other liabilities of the Borrower owing to
the Administrative Agent, any Lender, any Person entitled to indemnification
pursuant to Section 11.3 of the Credit Agreement, and their respective
successors, transferees or assigns, of every type and description, whether or
not evidenced by any note, guaranty or other instrument, arising under or in
connection with the Credit Agreement, the Notes or any other Loan Document,
whether or not for the payment of money, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired, including, without
limitation, all principal, interest, charges, expenses, fees, attorneys, fees
and disbursements and any other sum chargeable to the Borrower under the Credit
Agreement, or any other Loan Document, whether at stated maturity, by
acceleration or otherwise, and the performance of all obligations of the
Borrower now or hereafter existing under the Credit Agreement, the Notes and the
other Loan Documents (such obligations being the "Guaranty Obligations"), and
agrees to pay any and all expenses (including counsel fees and expenses)
incurred by the Administrative Agent, the Lenders or any other Persons holding
any of the Guaranty Obligations in enforcing any rights under this Guaranty
without limiting the generality of the foregoing, to the fullest extent
permitted by law, each Guarantor's liability shall extend to all amounts which
constitute part of the Guaranty Obligations and would be owed by the Borrower
under the Credit Agreement, the Notes and the other Loan Documents but for the
fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Borrower. The
foregoing guaranty shall be a guaranty of payment and not of collection merely.
SECTION 2. Guaranty Absolute. Each Guarantor guarantees that the
Guaranty Obligations will be paid and performed strictly in accordance with the
terms of the Credit Agreement, the Notes and the other Loan Documents,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Administrative
Agent, the Lenders or any other Persons holding any of the Guaranty Obligations
with respect thereto. The obligations of each Guarantor under this Guaranty are
independent of the Guaranty Obligations, and a separate action or actions may be
brought and prosecuted against any Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Borrower, any other
Guarantor or any other guarantor of the Guaranty Obligations, or whether the
Borrower or any other Guarantor is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, the Notes, the other Loan Documents or any other agreement
or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, or any extension or renewal of, all or any of the
Guaranty Obligations, or any other amendment or waiver of or any
consent to departure from the Credit Agreement, the Notes or the other
Loan Documents, including, without limitation, any increase in the
Guaranty Obligations resulting from the extension of additional credit
to the Borrower under the Credit Agreement or the Other Loan Documents;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release, or amendment or waiver of, or
consent to departure from, any other guaranty, for all or any of the
Guaranty Obligations;
(d) any manner of application of collateral, or proceeds
thereof, to all or any of the Guaranty Obligations, or any manner of
sale or other disposition of any collateral for all or any of the
Guaranty Obligations or any other assets of the Borrower, any other
Guarantor or any other guarantor of the Guaranty Obligations;
(e) any change, restructuring or termination of the corporate
structure or existence of the Borrower, any other Guarantor or any
other guarantor of the Guaranty Obligations; or
(f) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower, any other
Guarantor or any other guarantor of the Guaranty Obligations.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranty Obligations is rescinded
or must otherwise be returned by any of the Administrative Agent, Lenders or
other Persons holding any of the Guaranty Obligations upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, all as though such
payment had not been made.
SECTION 3. Waiver. Each Guarantor hereby waives promptness, diligence,
presentment, demand of payment, protest, notice of acceptance of this Guaranty,
notice of any liability to which it may apply and any other notice with respect
to any of the Guaranty Obligations, this Guaranty and any requirement that any
of the Administrative Agent, Lenders or other Persons holding any of the
Guaranty Obligations protect, secure, perfect or insure any security interest or
lien or any property subject thereto or exhaust any right or take any action
against the Borrower, any other Guarantor or any other person or entity or any
collateral. Without limiting the generality of the foregoing provisions of this
Section 3, each Guarantor hereby specifically waives the benefits of N.C. Gen.
Stat. xx.xx. 26-7 through 26-9, inclusive.
SECTION 4. Subrogation. Upon the making by any Guarantor of any payment
hereunder for the account of the Borrower, such Guarantor shall be subrogated to
the rights of the payee against the Borrower with respect to such payment;
provided, that such Guarantor shall not enforce any right or receive any payment
by way of subrogation until all of the Guaranty Obligations shall have been paid
in full and the Commitments have been terminated. If any amount shall be paid to
any Guarantor on account of such subrogation rights prior to the payment in full
of the Guaranty Obligations and the termination of the Commitments, such amounts
shall be held in trust for the benefit of the Administrative Agent, the Lenders
and any other holder of the Guaranty Obligations and shall forthwith be paid on
demand to the Administrative Agent to be credited and applied to the Guaranty
Obligations, whether matured or unmatured, in accordance with the terms of the
Credit Agreement or to be held by the Administrative Agent as collateral
security for any Guaranty Obligations existing.
SECTION 5. Limitation of Guaranty Obligations. Anything herein to the
contrary notwithstanding:
(a) It is the intent of the Guarantors, the Administrative Agent, the
Lenders and any other Person holding any of the Guaranty Obligations that each
Guarantor's maximum obligations hereunder (such Guarantor's "Maximum Guaranty
Liability") shall not be in excess of (after giving effect to all rights of such
Guarantor to contribution or subrogation provided herein):
(i) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code of 1978, 11 U.S.C. ss. 101 et.
seq., as amended (the "Bankruptcy Code"), on or within one year from
the date on which any of the Guaranty Obligations are incurred, the
maximum amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders and any other Person holding any of
the Guaranty Obligations) to be avoidable or unenforceable against such
Guarantor under (A) Section 548 of the Bankruptcy Code or (B) any state
fraudulent transfer or fraudulent conveyance act or statute applied in
such case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(ii) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code subsequent to one year from the
date on which any of the Guaranty Obligations are incurred, the maximum
amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders and any other Person holding any of
the Guaranty Obligations) to be voidable or unenforceable against such
Guarantor under any state fraudulent transfer or fraudulent conveyance
act or statute applied in any such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the
Bankruptcy Code relating to dissolution, liquidation, conservatorship,
bankruptcy, moratorium, readjustment of debt, compromise,
rearrangement, receivership, insolvency, reorganization or similar
debtor relief from time to time in effect affecting the rights of
creditors generally (collectively, "Other Debtor Relief Law"), the
maximum amount which would not otherwise cause the obligations of such
Guarantor hereunder (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders and any other Person holding any of
the Guaranty Obligations) to be avoidable or unenforceable against such
Guarantor under such other Debtor Relief Law, including, without
limitation, any state fraudulent transfer or fraudulent conveyance act
or statute applied in any such case or proceeding. (The substantive
laws under which the possible avoidance or unenforceability of the
obligations of any Guarantor hereunder (or any other obligations of
such Guarantor to the Administrative Agent, the Lenders and any other
Person holding any of the Guaranty Obligations) shall be determined in
any such case or proceeding shall hereinafter be referred to as the
"Avoidance Provisions").
(b) To the end set forth in Section 5(a)(i), (ii) or (iii), but only to
the extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under any Avoidance Provisions if such Guarantor is not
deemed to have received valuable consideration, fair value or reasonably
equivalent value for such obligations, or if the obligations of any Guarantor
hereunder would render such Guarantor not Solvent as of the time any of the
obligations of such Guarantor are deemed to have been incurred under such
Avoidance Provisions, then the obligations of such Guarantor hereunder shall be
reduced to that amount which, after giving effect thereto, would not cause the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Administrative Agent, the Lenders or any other Person holding
any of the Guaranty Obligations), as so reduced, to be subject to avoidance
under such Avoidance Provisions. This Section 5(b) is intended solely to
preserve the rights hereunder of the Administrative Agent, the Lenders and any
other Person holding any of the Guaranty Obligations to the maximum extent that
would not cause the obligations of the Guarantors hereunder to be subject to
avoidance under any Avoidance Provisions, and no Guarantor nor any other Person
shall have any right or claim under this Section 5(b) as against the
Administrative Agent, the Lenders or any other Person holding any of the
Guaranty Obligations that would not otherwise be available to such Person under
the Avoidance Provisions.
SECTION 6. Contribution Obligations. In the event that any Guarantor
(the "Funding Guarantor") shall make any payment or payments under this Guaranty
or shall suffer any loss as a result of any realization upon any collateral
granted by it to secure its obligations hereunder, each other Guarantor (each, a
"Contributing Guarantor") hereby agrees to contribute to the Funding Guarantor
an amount equal to such Contributing Guarantor's pro rata share of such Payment
or payments made, or losses suffered, by such Funding Guarantor determined by
reference to the ratio of (a) the amount, expressed in Dollars, of the
percentage of each such Contributing Guarantor's Net Assets (without giving
effect to any right to receive any contribution or subrogation or obligation to
make any contribution hereunder), to (b) the sum of the Net Assets of all
Guarantors (including the Funding Guarantor) hereunder (without giving effect to
any right to receive contribution or subrogation hereunder or any obligation to
make any contribution hereunder); provided, that the Contributing Guarantor
shall not be obligated to make any such payment to the Funding Guarantor if the
Contributing Guarantor is not Solvent at the time of such contribution or if the
Contributing Guarantor would be rendered not Solvent as a result thereof.
Nothing in this Section 6 shall affect each Guarantor's several liability for
the entire amount of the Guaranty Obligations, subject only to the limitations
set forth in Section 6. For the purposes of this Section 6, (x) the "Net Assets"
of any Guarantor shall mean the highest amount, as of any Determination Date, by
which (A) the aggregate present fair saleable value of the assets of such
Guarantor exceeds (B) the amount of all the debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of such Guarantor hereunder), and (y)
"Determination Date" shall mean each of (1) the Closing Date, (2) the date of
commencement of a case under Title 11 of the Code in which a Guarantor is a
debtor, and (3) the date enforcement hereunder is sought with respect to such
Guarantor. Each Funding Guarantor covenants and agrees that its right to receive
any contribution from any Contributing Guarantor hereunder shall be subordinated
and junior in right of payment in full of all of the Guaranty Obligations.
SECTION 7. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty, and no consent to any departure by any Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Required Lenders (or the Administrative Agent with the consent of the Required
Lenders) and the Guarantors, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given,
provided, however, that no amendment, waiver or consent shall, unless in writing
and signed by all the Lenders, (a) limit the liability of any Guarantor
hereunder, (b) postpone any date fixed for payment hereunder or (c) change the
number of Lenders required to take any action hereunder.
SECTION 8. Addresses for Notices. All notices and other communications
provided for hereunder shall be given in the manner specified in the Credit
Agreement, (i) if to any Guarantor, at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000-0000 Attention: President and (ii) if to the Administrative Agent or any
Lender, at its address specified in the Credit Agreement, or, as to any of them,
at such other address as shall be designated by such party in a written notice
to each other party.
SECTION 9. No Waiver; Remedies. No failure on the part of the
Administrative Agent, any Lender or any other Person holding any of the Guaranty
Obligations to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. No notice to or demand on any Guarantor in any case shall
entitle such Guarantor to any other or further notice or demand in any similar
or other circumstances or constitute a waiver of the rights of the
Administrative Agent, the Lenders or any other Person holding any of the
Guaranty Obligations to any other or further action in any circumstances without
notice or demand. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law.
SECTION 10. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 9.2 of the Credit Agreement to
authorize the Administrative Agent to declare the Notes due and payable pursuant
to the provisions of said Section 9.2, each Lender 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 to or for the credit or the account of any Guarantor against any and all
of the obligations of the Guarantors now or hereafter existing under this
Guaranty, whether or, not such Lender shall have made any demand under this
Guaranty and although such obligations may be contingent and unmatured. Each
Lender agrees promptly to notify the Guarantors after any such set-off and
application made by such Lender, provided 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 10 are in addition to other rights and remedies
(including, without limitation, other rights; of set-off) which such Lender may
have.
SECTION 11. Continuing Guaranty; Assignments under Credit Agreement.
This Guaranty is an irrevocable and continuing guaranty and shall (i) remain in
full force and effect until the later of (x) the payment in full of the Guaranty
Obligations (including, without limitation, all of the Advances) and all amounts
payable under this Guaranty and (y) the expiration or termination of the
Commitments, (ii) be binding upon each Guarantor, its successors and assigns and
(iii) inure to the benefit of, and be enforceable by, the Administrative Agent,
the Lenders and any other Person holding any of the Guaranty Obligations, and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), the Administrative Agent or any Lender
may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitment, the Advances owing to it, and any Note held by
it) to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to the
Administrative Agent or such Lender herein or otherwise, subject, however, to
the provisions of Article 10 (concerning the Administrative Agent) and Section
11.5 of the Credit Agreement (concerning assignments and participations).
SECTION 13. Additional Guarantors. In the event that any Material
Domestic Subsidiary of the Borrower now existing or hereafter created or
acquired is required under Section 7.7 of the Credit Agreement to become a
Guarantor hereunder, such Material Domestic Subsidiary shall become a Guarantor
hereunder and be bound by all of the terms and conditions hereof, upon
delivering to the Administrative Agent an executed counterpart of a Supplement
to Guaranty in the form of Exhibit A hereto.
SECTION 14. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE.
SECTION 15. Consent to Jurisdiction; Waiver of Jury Trial.
(a) EACH GUARANTOR, IN RESPECT OF ITSELF AND ITS PROPERTIES,
REPRESENTS THAT IT IS SUBJECT TO (AND HEREBY IRREVOCABLY SUBMITS TO) THE
NON-EXCLUSIVE JURISDICTION OF ANY COURT IN THE STATE OF NORTH CAROLINA IN
MECKLENBURG COUNTY, OR OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH
CAROLINA, IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY, AND EACH GUARANTOR IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT. EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION TO THE LAYING OF THE VENUE
OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORM.
(b) EACH GUARANTOR IRREVOCABLY CONSENTS TO PROCESS BEING
SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE NATURE REFERRED TO IN PARAGRAPH
(a) OF THIS SECTION 15 BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED AIR
MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE ADDRESS OF THE BORROWER
SPECIFIED IN OR DESIGNATED PURSUANT TO SECTION 8. EACH GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ALL
CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE AND AGREES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT SAID SERVICE (A) SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY
SUCH SUIT, ACTION OR PROCEEDING AND (B) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO SUCH GUARANTOR.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, EACH GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
The foregoing provisions shall not limit the right of any
Lender, the Administrative Agent or any other Person holding any of the Guaranty
Obligations to serve process in any other manner permitted by law or limit the
right of any Lender or the Administrative Agent or other Person holding any of
the Guaranty Obligations to bring any suit, action or proceeding or to obtain
execution on any judgment rendered in any suit, action or proceeding in any
other appropriate jurisdiction or in any other matter.
SECTION 16. Acknowledgment of Receipt of Loan Documents. Each Guarantor
hereby acknowledges receipt and hereby consents to the terms, of the Credit
Agreement and each of the other Loan Documents.
SECTION 17. Severability. In the case any provision in or obligation
under this Guaranty shall be determined to be invalid, illegal or unenforceable,
in whole or in part, under applicable law, the validity, legality and
enforceability of the remaining provisions or obligations of this Guaranty shall
not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
GUARANTORS:
DIMON INTERNATIONAL, INC.
By:_______________________________
Name:
Title:
FLORIMEX WORLDWIDE, INC.
By:_______________________________
Name:
Title:
The undersigned, on behalf of the Lenders, hereby acknowledges and consents to
the terms of the foregoing Guaranty:
NATIONSBANK, N.A., as Administrative Agent
By:_______________________________
Name:
Title:
EXHIBIT A
SUPPLEMENT TO GUARANTY
THIS SUPPLEMENT TO GUARANTY (this "Supplement"), dated as of
______________ __, 19__, made by _______________, a ________________ corporation
(the "Additional Guarantor"), in favor of NationsBank, N.A., as administrative
agent (the "Administrative Agent"), the Lenders (as defined below) and all other
Persons holding any of the Guaranty Obligations (as defined below).
PRELIMINARY STATEMENTS.
A. Certain lenders (together with other lenders that may from
time to time become parties thereto the "Lenders"), the Administrative Agent,
First Union National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, have entered into a certain Credit Agreement,
dated as of June 27, 1997 (as amended or otherwise modified from time to time,
the "Credit Agreement"; terms defined therein and not otherwise defined herein
being used herein as therein defined) with DIMON Incorporated, a Virginia
corporation (the "Borrower"). Pursuant to that certain Guaranty, dated as of
June 27, 1997 (as amended or otherwise modified from time to time, the
"Guaranty"), certain of the Borrower's Subsidiaries (the "Guarantors") have
guarantied the Obligations of the Borrower.
B. Pursuant to Section 7.7 of the Credit Agreement, the
Borrower is required to cause the Additional Guarantor to become a party to this
Supplement, and it is a condition to the obligations of the Lenders to continue
to make Advances under the Credit Agreement that the Additional Guarantor
execute and deliver to the Administrative Agent this Supplement, and the
Additional Guarantor desires to execute and deliver this Supplement to satisfy
such requirement and condition.
NOW, THEREFORE, in consideration of the premises and in order
to ensure the Borrower's compliance with and to induce the Lenders to make
Advances under the Credit Agreement, the Additional Guarantor hereby agrees as
follows:
SECTION 1. Additional Guarantor. The Additional Guarantor
hereby assumes all obligations, and agrees to be bound by all covenants,
agreements and obligations, of a Guarantor under, and shall be a Guarantor for
all purposes of, the Guaranty and shall be fully liable thereunder to the
Administrative Agent, any Lender or any Person entitled to indemnification
pursuant to Section 11.3 of the Credit Agreement, or any of their respective
successors, transferees or assigns, to the same extent and with the same effect
as though the Additional Guarantor had been one of the Guarantors originally
executing and delivering the Guaranty. Without limiting the foregoing:
(a) The Additional Guarantor hereby irrevocably and
unconditionally, jointly and severally with all other Guarantors, guarantees the
due and punctual payment of all present and future indebtedness and other
liabilities of the Borrower owing to the Administrative Agent, any Lender, any
Person entitled to indemnification pursuant to Section 11.3 of the Credit
Agreement, and their respective successors, transferees or assigns, of every
type and description, whether or not evidenced by any note, guaranty or either
instrument, arising under or in connection with the Credit Agreement, the Notes
or any other Loan Document, whether or not for the payment of money, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired, including, without limitation, all principal, interest, charges,
expenses, fees, attorneys' fees and disbursements and any other sum chargeable
to the Borrower under the Credit Agreement or any other Loan Document, whether
at stated maturity, by acceleration or otherwise, and the performance, of all
obligations of the Borrower now or hereafter existing under the Credit
Agreement, the Notes and the other Loan Documents (such obligations being the
"Guaranty Obligations"), and agrees to pay any and all expenses (including
counsel fees and expenses) incurred by the Administrative Agent, the Lenders or
any other Persons holding any of the Guaranty Obligations in enforcing any
rights under this Guaranty. Without limiting the generality of the foregoing,
the Guarantor's liability shall extend to all amounts which constitute part of
the Guaranty Obligations and would be owed by the Borrower under the Credit
Agreement, the Notes and the other Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower;
(b) The Additional Guarantor guarantees that the Guaranty
Obligations will be paid and performed strictly in accordance with the terms of
the Credit Agreement, the Notes and the other Loan Documents, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Administrative Agent, the
Lenders or any other Persons holding any of the Guaranty Obligations with
respect thereto. The obligations of the Additional Guarantor under this Guaranty
are independent of the Guaranty Obligations, and a separate action or actions
may be brought and prosecuted against the Additional Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against the Borrower,
any other Guarantor or any other guarantor of the Guaranty Obligations or
whether the Borrower or any other Guarantor is joined in any such action or
actions;
(c) The foregoing guaranty shall be a guaranty of payment and
not of collection merely;
(d) The foregoing guarantee is subject to the limitations
expressly provided in Section 5 of the Guaranty and to the other terms and
conditions governing the guaranty of Guarantors under the Guaranty, including,
without limitation, Section 2 of the Guaranty;
(e) All references in the Guaranty to the "Guarantors" or any
"Guarantor" or to the "Funding Guarantor" or the "Contributing Guarantor" as
applicable, shall be deemed to include and to refer to the Additional Guarantor.
SECTION 2. Waiver. The Additional Guarantor hereby waives promptness,
diligence, presentment, demand of payment, protest, notice of acceptance of this
Guaranty, notice of any liability to which it may apply and any other notice
with respect to any of the Guaranty Obligations, this Guaranty and any
requirement that the Administrative Agent, Lenders or other Persons holding any
of the Guaranty Obligations protect, secure, perfect or insure any security
interest or lien or any property subject thereto or exhaust any right or take
any action against the Borrower, any other Guarantor or any other person or
entity or any collateral. Without limiting the generality of the foregoing
provisions of this Section 2, the Additional Guarantor hereby specifically
waives the benefits of N.C. Gen. Stat. xx.xx. 26-7 through 26-9, inclusive.
SECTION 3. Subrogation. Upon the making by the Additional Guarantor of
any payment under the Guaranty (and this Supplement) for the account of the
Borrower, the Additional Guarantor shall be subrogated to the rights of the
payee against the Borrower with respect to such payment; provided that, the
Additional Guarantor shall not enforce any right or receive any payment by way
of subrogation until all of the Guaranty Obligations shall have been paid in
full and the Commitments have been terminated. If any amount shall be paid to
the Additional Guarantor on account of such subrogation rights prior to the
payment in full of the Guaranty Obligations and the termination of the
Commitments, such amounts shall be held in trust for the benefit of the
Administrative Agent, the Lenders and any other holder of the Guaranty
Obligations and shall forthwith be paid to the Administrative Agent to be
credited and applied upon the Guaranty Obligations, whether matured or
unmatured, in accordance with the terms; of the Credit Agreement or to be held
by the Administrative Agent as collateral security for any Guaranty Obligations
existing.
SECTION 4. Successors and Assigns. The Guaranty (together with this
Supplement) constitutes an irrevocable and continuing guaranty and shall (i)
remain in full force and effect until the later of (x) the payment in full of
the Guaranty Obligations and all amounts payable under the Guaranty (and this
Supplement) and (y) the expiration or termination of the Commitments, (ii) be
binding upon the Additional Guarantor, its successors and assigns and (iii)
inure to the benefit of, and be enforceable by, the Administrative Agent, the
Lenders and any other Person holding any of the Guaranty Obligations, and their
respective successors, transferees and assigns.
SECTION 5. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA,
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE.
SECTION 6. Consent to Jurisdiction; Waiver of Jury Trial.
(a) THE ADDITIONAL GUARANTOR, IN RESPECT OF ITSELF AND ITS PROPERTIES,
REPRESENTS THAT IT IS SUBJECT TO (AND HEREBY IRREVOCABLY SUBMITS TO) THE
NON-EXCLUSIVE JURISDICTION OF ANY COURT IN THE STATE OF NORTH CAROLINA IN
MECKLENBURG COUNTY, OR OF THE UNITED STATES FOR THE WESTERN DISTRICT OF NORTH
CAROLINA, IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY, AND THE ADDITIONAL GUARANTOR IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. THE ADDITIONAL GUARANTOR IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORM.
(b) THE ADDITIONAL GUARANTOR IRREVOCABLY CONSENTS TO PROCESS BEING
SERVED IN ANY SUIT, ACTION OR PROCEEDING OF THE NATURE REFERRED TO IN CLAUSE (a)
OF THIS SECTION 6 BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED AIR MAIL,
POSTAGE PREPAID, RETURN RECEIPT REQUESTED, TO THE ADDITIONAL GUARANTOR AT ITS
ADDRESS AT ___________________________. THE ADDITIONAL GUARANTOR IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ALL
CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE AND AGREES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, THAT SAID SERVICE (A) SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON SUCH GUARANTOR IN ANY
SUCH SUIT, ACTION OR PROCEEDING AND (B) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO THE ADDITIONAL GUARANTOR.
(c) TO THE FULLEST EXTENT PERMITTED BY LAW, THE ADDITIONAL GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
The foregoing provisions shall not limit the right of any Lender, the
Administrative Agent or any other Person holding any of the Guaranty Obligations
to serve process in any other manner permitted by law or limit the right of any
Lender or the Administrative Agent or other Person holding any of the Guaranty
Obligations to bring any suit, action or proceeding or to obtain execution on
any judgment rendered in any suit, action or proceeding in any other appropriate
jurisdiction or in any other matter.
IN WITNESS WHEREOF, the Additional Guarantor has caused this
Supplement to be duly executed and delivered by its duly authorized officer as
of the date first above written:
ADDITIONAL GUARANTOR:
By:
Name:
Title:
EXHIBIT C TO
CREDIT AGREEMENT
NOTE
U.S. $____________________ Dated: June 27, 1997
FOR VALUE RECEIVED, the undersigned, DIMON INCORPORATED, a
Virginia corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_______________________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referenced below) the principal sum
of U.S. $[amount of the Lender's Commitment in figures] or, if less, the
aggregate unpaid principal amount of Advances (as defined below) made by the
Lender to the Borrower pursuant to the Credit Agreement, on the Termination Date
(as such term is defined in the Credit Agreement).
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
In no contingency or event whatsoever shall the interest rate
charged pursuant to the terms of this Note exceed the highest rate permissible
under any law which a court of competent jurisdiction shall, in a final
determination, deem applicable. In the event that such a court determines that
the Lender has received interest hereunder in excess of the highest applicable
rate, the Lender shall promptly refund such excess interest to the Borrower.
Both principal and interest are payable in lawful money of the
United States of America to NationsBank, N.A., as Administrative Agent, at its
Payment Office (as such term is defined in the Credit Agreement) currently
located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, in same day funds.
Each Advance made by the Lender to the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded on the books and records of the Lender and the Administrative Agent as
provided in the Credit Agreement. Failure of the Lender, the Administrative
Agent or any holder to maintain its books and records with respect to any
Advance, or any error in such books and records, shall not affect the
obligations of the Borrower under this Note, the Credit Agreement or any other
Loan Document.
This Note is one of the Notes referenced in, and is entitled
to the benefits of, the Credit Agreement dated as of June 27, 1997 (as hereafter
amended, modified or supplemented, the "Credit Agreement") among the Borrower,
the Lender and certain other lenders parties thereto, NationsBank, N.A., as
Administrative Agent, First Union National Bank, as Documentation Agent, and
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New
York Branch and Societe Generale, as Co-Agents. The Credit Agreement, among
other things, (i) provides for the making of advances (the "Advances") by the
Lender to the Borrower from time to time in an aggregate amount not to exceed
the Dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events. This Note is entitled to the benefits of the Subsidiary Guaranty
(as such term is defined in the Credit Agreement).
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
This Note and the Advances evidenced hereby may be transferred
in whole or in part only by registration of such transfer on the Register
maintained by or on behalf of the Borrower as provided in Section 11.5(c) of the
Credit Agreement.
This Note is signed and delivered to the Lender for acceptance
at its Applicable Lending Office.
DIMON INCORPORATED
By________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Treasurer
and
By_______________________________
Name: Xxxx X. Xxxxxxxxx, III
Title: Vice President and Secretary
EXHIBIT D TO
CREDIT AGREEMENT
NOTICE OF BORROWING
NationsBank, N.A., as Administrative Agent
for the Lenders parties to the
Credit Agreement referenced below
4th Floor Pavilion
0000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
[Date]
Re: DIMON INCORPORATED
Ladies and Gentlemen:
The undersigned, DIMON INCORPORATED, a Virginia corporation
(the "Borrower"), refers to the Credit Agreement, dated as of June 27, 1997 (the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, the lenders (the "Lenders") from time to time
parties thereto, NationsBank, N.A., as Administrative Agent, First Union
National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and hereby gives you irrevocable notice pursuant
to Section 2.3 of the Credit Agreement that the undersigned hereby requests a
Borrowing under the Credit Agreement (the "Proposed-Borrowing"), and in that
connection sets forth below the information relating to such Borrowing as
required by Section 2.3(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 19__.
(ii) The Proposed Borrowing shall be comprised of [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The amount of the Proposed Borrowing is
$_____________________.
[(iv) The Interest Period for the Proposed Borrowing if comprised of
Eurodollar Rate Advances is ______ month[s].]*
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) The representations and warranties made by the Borrower
contained in Article V of the Credit Agreement are true and correct on and as of
the date of such Proposed Borrowing, with the same effect as if made on and as
of the date of such Proposed Borrowing (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date);
(B) No Default or Event of Default exists or shall result from
such Proposed Borrowing; and
[(C) Attached hereto are calculations evidencing compliance
with Section 4.11 of the Senior Indenture.]*
Very truly yours,
DIMON INCORPORATED
By________________________________
Name:
Title:
and
By_______________________________
Name:
Title:
---------------
* Not applicable if the Proposed Borrowing is to be comprised of Base Rate
Advances.
* Not applicable if the aggregate principal amount of all outstanding
Borrowings does not exceed $240,000,000.
EXHIBIT E TO
CREDIT AGREEMENT
NOTICE OF CONTINUATION/CONVERSION
NationsBank, N.A., as Administrative Agent
for the Lenders parties to the
Credit Agreement referenced below
4th Floor Pavilion
0000 X. Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
[Date]
Re: DIMON INCORPORATED
Ladies and Gentlemen:
The undersigned, DIMON INCORPORATED, a Virginia corporation
(the "Borrower"), refers to the Credit Agreement, dated as of June 27, 1997 (the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, the lenders (the "Lenders") from time to time
parties thereto, NationsBank, N.A., as Administrative Agent, First Union
National Bank, as Documentation Agent, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch and
Societe Generale, as Co-Agents, and hereby gives you irrevocable notice pursuant
to Section 2.4 of the Credit Agreement that the undersigned hereby requests the
[Conversion] [Continuation] of a Borrowing under the Credit Agreement as
specified below in accordance with Section 2.4(a) of the Credit Agreement:
[The Borrower hereby requests the Conversion of a
Borrowing comprised of Base Rate Advances to a Borrowing comprised of
Eurodollar Rate Advances, as follows:
(i) the Business Day of the proposed Conversion is
__________________, 19__.
(ii) the Interest Period applicable to the Eurodollar
Rate Advances upon such Conversion shall be _____ month(s)].
[The Borrower hereby requests the Conversion of a
Borrowing comprised of Eurodollar Rate Advances to a Borrowing
comprised of Base Rate Advances, as follows:
(i) the Business Day of the proposed Conversion,
which shall be the last day of the current Interest Period
applicable to the Borrowing to be Converted, is
___________________, 19__.
(ii) the amount of the Borrowing to be Converted is
$___________________.]
[The Borrower hereby requests the Continuation of a
Borrowing comprised of Eurodollar Rate Advances for an additional
Interest Period, as follows:
(i) the Business Day of the proposed Continuation,
which shall be the last day of the current Interest Period
applicable to the Borrowing to be Continued, is
_______________, 19__.
(ii) the amount of the Borrowing to be Continued is
$_____________________.
(iii) the Interest Period applicable to the
Eurodollar Rate Advances upon such Continuation shall be _____
month(s).]
The undersigned hereby certifies that the following statement
is true on the date hereof, and will be true on the date of the proposed
Continuation or Conversion:
No Default or Event of Default exists or shall result from
such proposed Continuation or Conversion.]*
Very truly yours,
DIMON INCORPORATED
By________________________________
Name:
Title:
and
By_______________________________
Name:
Title:
---------------
* Applicable only upon the Conversion to or Continuation of, a Borrowing
comprised of Eurodollar Advances.
