Exhibit 10.1
$250,000,000
CREDIT AGREEMENT
dated as of
November 20, 1998
among
ACX TECHNOLOGIES, INC.
The Banks Listed Herein
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
and
ABN AMRO BANK N.V.,
as Co-Agents
and
WACHOVIA BANK, N.A.,
as Agent
TABLE OF CONTENTS
CREDIT AGREEMENT
Page
ARTICLE I
DEFINITIONS 1
SECTION 1.01. Definitions 19
SECTION 1.02. Accounting Terms and Determinations 20
SECTION 1.03. References 20
SECTION 1.04. Use of Defined Terms 20
SECTION 1.05. Terminology 20
ARTICLE II
THE CREDITS 20
SECTION 2.01. Commitments to Lend 21
SECTION 2.02. Method of Borrowing Syndicated Loans 23
SECTION 2.03. Money Market Loans 28
SECTION 2.04. Notes 28
SECTION 2.05. Maturity of Loans 30
SECTION 2.06. Interest Rates 32
SECTION 2.07. Fees 34
SECTION 2.08. Optional Termination or Reduction of
Commitments 34
SECTION 2.09. Mandatory Reduction and Termination of
Commitments 34
SECTION 2.10. Optional Prepayments 34
SECTION 2.11. Mandatory Prepayments 35
SECTION 2.12. General Provisions as to Payments 37
SECTION 2.13. Computation of Interest and Fees 37
ARTICLE III
CONDITIONS TO BORROWINGS 37
SECTION 3.01. Conditions to First Borrowing 40
SECTION 3.02. Conditions to All Borrowings 40
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power 41
SECTION 4.02. Corporate and Governmental
Authorization No Contravention 41
SECTION 4.03. Binding Effect 41
SECTION 4.04. Financial Information 42
SECTION 4.05. No Litigation 42
SECTION 4.06. Compliance with ERISA 42
SECTION 4.07. Environmental Matters 43
SECTION 4.08. Taxes 43
SECTION 4.09. Subsidiaries 43
SECTION 4.10. No Regulatory Restrictions on
Borrowing 44
SECTION 4.11. Full Disclosure 44
SECTION 4.12. Y2K Plan 44
SECTION 4.13. Compliance with Laws; Payment of Taxes 45
SECTION 4.14. Ownership of Property; Liens 45
SECTION 4.15. No Default 45
SECTION 4.16. Capital Stock 45
SECTION 4.17. Margin Stock 45
SECTION 4.18. Insolvency 46
ARTICLE V
COVENANTS 46
SECTION 5.01. Information 49
SECTION 5.02. Payment of Obligations 50
SECTION 5.03. Maintenance of Property; Insurance 50
SECTION 5.04. Conduct of Business and Maintenance
of Existence 50
SECTION 5.05. Compliance with Laws 51
SECTION 5.06. Inspection of Property, Books and
Records 51
SECTION 5.07. Mergers and Sales of Assets 51
SECTION 5.08. Use of Proceeds 51
SECTION 5.09. Negative Pledge 53
SECTION 5.10. Debt/Capitalization Ratio 53
SECTION 5.11. Restricted Debt of Subsidiaries 53
SECTION 5.12. Debt/EBITDA Ratio 53
SECTION 5.13. Restricted Payments 53
SECTION 5.14. Lease Payments 54
SECTION 5.15. Investments 54
SECTION 5.16. Transactions with Affiliates 55
SECTION 5.17. Dissolution 55
SECTION 5.18. Change in Fiscal Year 55
SECTION 5.19. Y2K Compliance 55
SECTION 5.20. Assumption of ACXGL Senior Notes. 55
ARTICLE VI
DEFAULTS 55
SECTION 6.01. Events of Default 58
SECTION 6.02. Notice of Default 58
ARTICLE VII
THE AGENT 58
SECTION 7.01. Appointment; Powers and Immunities 60
SECTION 7.02. Reliance by Agent 60
SECTION 7.03. Defaults 60
SECTION 7.04. Rights of Agent and its Affiliates as
a Bank 61
SECTION 7.05. Indemnification 61
SECTION 7.06. Consequential Damages 61
SECTION 7.07. Payee of Note Treated as Owner 62
SECTION 7.08. Nonreliance on Agent and Other Bank 62
SECTION 7.09. Failure to Act 62
SECTION 7.10. Resignation or Removal of Agent 63
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION 63
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair 64
SECTION 8.02. Illegality 64
SECTION 8.03. Increased Cost and Reduced Return 66
SECTION 8.04. Base Rate Loans Substitute for
Euro-Dollar Loans 67
SECTION 8.05. Compensation 68
SECTION 8.06. Replacement of Banks 68
ARTICLE IX
MISCELLANEOUS 68
SECTION 9.01. Notices 69
SECTION 9.02. No Waivers 69
SECTION 9.03. Expenses; Documentary Taxes 69
SECTION 9.04. Indemnification 70
SECTION 9.05 Sharing of Setoffs 71
SECTION 9.06. Amendments and Waivers 72
SECTION 9.07. No Margin Stock Collateral 72
SECTION 9.08. Successors and Assigns 75
SECTION 9.09. Confidentiality 75
SECTION 9.10. Representation by Banks 75
SECTION 9.11. Obligations Several 76
SECTION 9.12. Georgia Law 76
SECTION 9.13. Interpretation 76
SECTION 9.14. Waiver of Jury Trial; Consent to
Jurisdiction 76
SECTION 9.15. Counterparts 77
SECTION 9.16. Severability 77
SECTION 9.17. Interest 77
SECTION 9.18. Source of Funds -- ERISA 78
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Xxxxx, Day, Xxxxxx &
Xxxxx, Special Counsel for the Banks and the
Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
Schedule 4.09 Subsidiaries
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of November 20, 1998, among
ACX TECHNOLOGIES, INC., the BANKS listed on the signature pages
hereof, WACHOVIA BANK, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in
this Section 1.01 shall, for all purposes of this Agreement and
any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), have the
meanings set forth herein:
"ACXGL" means ACX Group, Limited (formerly Xxxxxxx
Group, plc), a limited company incorporated under the laws of
England and Wales with registered number 1816646.
"ACXGL Senior Notes" means the following series of
senior notes issued by ACXGL (under the name of Xxxxxxx Group,
PLC): (i) $45,000,000 7.19% Series A Note maturing January 3,
2006 and (ii) $47,500,000 7.01% Series B Note maturing January 3,
2003.
"Adjusted London Interbank Offered Rate" applicable to
any Interest Period means a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the next higher
1/100th of 1%) by dividing (i) the applicable London Interbank
Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage. The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
"Affiliate" means (i) any Person that directly, or
indirectly through one or more intermediaries, controls the
Borrower (a "Controlling Person"), (ii) any Person (other than
the Borrower or a Subsidiary) which is controlled by or is under
common control with a Controlling Person, or (iii) any Person
(other than a Subsidiary) of which the Borrower owns, directly or
indirectly, 20% or more of the common stock or equivalent equity
interests. As used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of
America, in its capacity as agent for the Banks hereunder, and its
successors and permitted assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of September 16, 1998, between the Borrower
and the Agent relating to the structure of the financial
accommodations set forth herein, and certain fees from time to
time payable by the Borrower to the Agent, together with all
amendments and supplements thereto.
"Aggregate Commitments" means the sum of all of the
Commitments.
"Agreement" means this Credit Agreement, together with
all amendments and supplements hereto.
"Anniversary Date" means each yearly anniversary of the
Closing Date.
"Applicable Margin" has the meaning set forth in
Section 2.06(a).
"Assignee" has the meaning set forth in Section
9.08(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.08(c) in the
form attached hereto as Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages
hereof as having a Commitment, and its successors and assigns, and
"Banks" means all such Banks.
"Base Rate" means for any Base Rate Loan for any day,
the rate per annum equal to the higher as of such day of (i) the
Prime Rate, or (ii) one-half of one percent above the Federal
Funds Rate. For purposes of determining the Base Rate for any day,
changes in the Prime Rate or the Federal Funds Rate shall be
effective on the date of each such change.
"Base Rate Loan" means a Syndicated Loan to be made as a
Base Rate Loan pursuant to the applicable Notice of Borrowing,
Section 2.02, or Article VIII, as applicable.
"Borrower" means ACX Technologies, Inc., a Colorado
corporation, and its successors and its permitted assigns.
"Borrower's 1997 Form 10-K" means the Borrower's annual
report on Form 10-K for 1997, as filed with the SEC pursuant to the
Exchange Act.
"Borrower's Latest Form 10-Q" means the Borrower's
quarterly report on Form 10-Q for the quarter ended June 30,
1998, as filed with the SEC pursuant to the Exchange Act.
"Borrowing" means a borrowing hereunder consisting of
Loans made to the Borrower (i) at the same time by all of the Banks,
in the case of a Syndicated Borrowing, or (ii) separately by one or
more Banks, in the case of a Money Market Borrowing, in each case
pursuant to Article II. A Borrowing is a "Base Rate Borrowing" if
such Loans are Base Rate Loans or a "Euro-Dollar Borrowing" if such
Loans are Euro-Dollar Loans. A Borrowing is a "Syndicated
Borrowing" if it is made pursuant to Section 2.01. A Borrowing is
a "Money Market Borrowing" if it is made pursuant to Section 2.03.
"Capital Stock" means any nonredeemable capital stock of
the Borrower or any Consolidated Subsidiary (to the extent issued
to a Person other than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental
Response Compensation and Liability Inventory System established
pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in
Section 8.02.
"Closing Certificate" has the meaning set forth in
Section 3.01(e).
"Closing Date" means November 20, 1998.
"Code" means the Internal Revenue Code of 1986, as
amended, or any successor Federal tax code.
"Commitment" means (i) the amount set forth opposite
the name of such Bank on the signature pages hereof, and (ii)as to
any Bank which enters into any Assignment and Acceptance (whether
as transferor Bank or as Assignee thereunder), the amount of such
Bank's Commitment after giving effect to such Assignment and
Acceptance, in each case as such amount may be reduced from time to
time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"Consolidated Debt" means at any date the Debt of the
Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis as of such date.
"Consolidated EBITDA" means, for any period (and with
respect to any Consolidated Subsidiary acquired during such period,
such Consolidated Subsidiary shall be included on a pro forma,
historical basis as if it had been a Consolidated Subsidiary during
such entire period), Consolidated Net Income for such period plus,
to the extent deducted in determining Consolidated Net Income for
such period, the aggregate amount of (i) Consolidated Interest
Expense, (ii) income tax expense and (iii) depreciation,
amortization and other similar non-cash charges.
"Consolidated Intangible Assets" means at any date the
amount of (i) all writeups (except write-ups resulting from foreign
currency translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of such
business) after September 30, 1997 in the book value of any asset
owned by the Borrower or a Consolidated Subsidiary and (ii) all
unamortized debt discount and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names,
anticipated future benefit of tax loss carry-forwards, copyrights,
organization or developmental expenses and other intangible assets
of the Borrower and its Consolidated Subsidiaries as of such date.
"Consolidated Interest Expense" means, for any period,
the interest expense of the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis for such period.
"Consolidated Net Income" means, for any period (and with
respect to any Consolidated Subsidiary acquired during such period,
such Consolidated Subsidiary shall be included on a pro forma,
historical basis as if it had been a Consolidated Subsidiary during
such entire period), the Net Income of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis, but
excluding (i) extraordinary items and (ii) any equity interests of
the Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
"Consolidated Net Worth" means, at any time, the
consolidated net worth of the Borrower and its Subsidiaries, as
determined in accordance with GAAP.
"Consolidated Operating Income" means, for any period
(and with respect to any Consolidated Subsidiary acquired during
such period, such Consolidated Subsidiary shall be included on a
pro forma, historical basis as if it had been a Consolidated
Subsidiary during such entire period), the consolidated operating
income of the Borrower and its Consolidated Subsidiaries for such
period, as determined in accordance with GAAP.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which, in accordance
with GAAP, would be consolidated with those of the Borrower in its
consolidated financial statements as of such date.
"Consolidated Tangible Assets" means, at any date, the
consolidated assets of the Borrower and its Consolidated
Subsidiaries less Consolidated Intangible Assets, all determined
as of such date.
"Consolidated Tangible Net Worth" means, at any date,
the consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries less Consolidated Intangible Assets, all
determined as of such date.
"Consolidated Total Assets" means, at any time, the
total assets of the Borrower and its Consolidated subbsidiaries,
determined on a consolidated basis, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time,
the sum of (i) Consolidated Net Worth, and (ii) Consolidated Total
Debt.
"Consolidated Total Debt" means, without duplication, all
of the following types of Debt of the Borrower and its Consolidated
Subsidiaries: (i) obligations for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments, (ii)
obligations as lessee under capital leases, (iii) obligations to
reimburse any bank or other Person in respect of amounts paid under
a letter of credit (other than a trade letter of credit) or similar
instrument, (iv) all Redeemable Preferred Stock of such Person (in
the event such Person is a corporation), and (v) Debt of the types
referred to in clauses (i) through (iv), inclusive, of this
definition of Persons other than the Borrower or any Guarantor
which are Guaranteed by the Borrower or any Consolidated Subsidiary.
"Credit Exposure" means, with respect to any Bank at any
time, (i) the amount of its Commitment (whether used or unused) at
such time or (ii) if the Commitments have terminated in their
entirety, the aggregate outstanding principal amount of its Loans
at such time.
"Debt" of any Person means, at any date, without
duplication, (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with GAAP, (v) all non-contingent
obligations (and, for purposes of Section 5.09 and the definitions
of Material Debt and Material Financial Obligations, all contingent
obligations) of such Person to reimburse any bank or other Person
in respect of amounts paid under a letter of credit or similar
instrument, (vi) all Debt secured by a Lien on any asset of such
Person, whether or not such Debt is otherwise an obligation of such
Person, and (vii) all Guarantees by such Person of Debt of another
Person (each such Guarantee to constitute Debt in an amount equal
to the amount of such other Person's Debt Guaranteed thereby).
"Debt/Capitalization Ratio" means the ratio of (i)
Consolidated Total Debt to (ii) Consolidated Total Capitalization.
"Debt/EBITDA Ratio" means the ratio of (i) Consolidated
Total Debt to (ii) Consolidated EBITDA.
"Debt Rating" means at any time the rating of the Notes
by Xxxxx'x or S&P (as such rating may change from time to time,
either pursuant to Section 2.06(f) or otherwise) or if only one of
them rates the Notes, such rating; provided, that in the event of
a (i) split rating, the highest rating shall apply or (ii) double
or greater split rating, the level above the lowest rating shall
apply.
"Default" means any condition or event which constitutes
an Event of Default or which with the giving of notice or lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Default Rate" means, with respect to any Loan, on any
day, the sum of 2% plus the then highest interest rate (including
the Applicable Margin) which may be applicable to any Loans
hereunder (irrespective of whether any such type of Loans are
actually outstanding hereunder).
"Derivatives Obligations" of any Person means all
obligations of such Person in respect of any rate swap transaction,
basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency
option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination
of the foregoing transactions.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are
authorized by law to close.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans, injunctions,
permits, concessions, grants, franchises, licenses, agreements and
other governmental restrictions relating to the environment or the
effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous
Substances or wastes into the environment, including (without
limitation) ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, Hazardous Substances or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, or any successor law.
Any reference to any provision of ERISA shall also be deemed to be
a reference to any successor provision or provisions thereof.
"ERISA Group" means the Borrower, any Subsidiary and all
members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which,
together with the Borrower or any Subsidiary, are treated as a
single employer under Section 414 of the Code.
"Euro-Dollar Business Day" means any Domestic Business
Day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Euro-Dollar Loan" means a Syndicated Loan which bears
or is to bear interest at a rate based upon the Adjusted London
Interbank Offered Rate, and to be made as a Euro-Dollar Loan
pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in
respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to
which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes
loans by a non-United States office of any Bank to United States
residents).
"Event of Default" has the meaning set forth in Section
6.01.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
"Facility Fee" has the meaning specified in Section
2.07(b).
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upward, if necessary, to the next higher 1/100th of
1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if the day for which such
rate is to be determined is not a Domestic Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii)
if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent
on such day on such transactions, as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the
Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"GAAP" means generally accepted accounting principles
applied on a basis consistent with those which, in accordance with
Section 1.02, are to be used in making the calculations for
purposes of determining compliance with the terms of this Agreement.
"Golden Properties" means Golden Properties, Ltd., a
partnership in which the Borrower is the general partner and has a
50% interest on the date hereof and which is in the business of
developing and selling real property.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to
secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether
arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to
provide collateral security, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of
such Debt or other obligation of the payment thereof or to protect
such obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Substances" means (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation,
(b) "hazardous substance", "pollutant", or "contaminant" as defined
in CERCLA, or in any applicable state or local law or regulation,
(c) petroleum including, crude oil or any fraction thereof which
is not otherwise specifically listed or designated as a hazardous
substance under subparagraphs (A) through (F) of section 101(14)
of CERCLA, (d) "chemical substances" and "mixtures", as defined
in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation or (e) pesticides, as defined in
the Federal Insecticide, Fungicide, and Rodenticide Act of 1975,
or in any applicable state or local law or regulation, as each
such Act, statute or regulation may be amended from time to time.
"Interest Period" means: (1) with respect to each
Euro-Dollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the
first, second, third or sixth month thereafter, as the Borrower
may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c)
below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in
the appropriate subsequent calendar month) shall, subject
to paragraph (c) below, end on the last Euro-Dollar
Business Day of the appropriate subsequent calendar
month; and
(c) no Interest Period may be selected which would
end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period (subject to paragraph (b)
below) which would otherwise end on a day which is not a
Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) no Interest Period may be selected which would
end after the Termination Date.
(3) with respect to each Money Market Borrowing, the period
commencing on the date of such Borrowing and ending on the Stated
Maturity Date or such other date or dates as may be specified in
the applicable Money Market Quote; provided that:
(a) any Interest Period (subject to clause (b)
below) which would otherwise end on a day which is not
a Domestic Business Day shall be extended to the next
succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins
before the Termination Date and would otherwise end
after the Termination Date.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution, loan,
Guarantee, time deposit or otherwise (but not including any demand
deposit).
"Lending Office" means, as to each Bank, its office
located at its address set forth on the signature pages hereof (or
identified on the signature pages hereof as its Lending Office) or
such other office as such Bank may hereafter designate as its
Lending Office by notice to the Borrower and the Agent.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind,
or any other type of preferential arrangement that has
substantially the same practical effect as a security interest, in
respect of such asset. For purposes hereof, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement,
"Loan" means a Base Rate Loan, a Euro-Dollar Loan, a
Syndicated Loan, or a Money Market Loan and "Loans" means Base
Rate Loans, Euro-Dollar Loans, Syndicated Loans, or Money Market
Loans, or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes and any
other document or instrument delivered from time to time in
connection with this Agreement, the Notes or the Loans, as such
documents and instruments may be amended or modified from time to
time.
"London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar
Loan, the rate per annum determined on the basis of the offered
rate for deposits in Dollars of amounts equal or comparable to the
principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rates appear on Dow
Xxxxx Market Services, Inc. Page 3750 effective as of 11:00 A.M.,
London time, 2 Euro-Dollar Business Days prior to the first day
of such Interest Period, provided that if no such offered rates
appear on such page, the "London Interbank Offered Rate" for such
Interest Period will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100th of 1%) of rates quoted by
not less than 2 major banks in New York City, selected by the
Agent, at approximately 10:00 A.M., New York City time, 2
Euro-Dollar Business Days prior to the first day of such Interest
Period, for deposits in Dollars offered by leading European banks
for a period comparable to such Interest Period in an amount
comparable to the principal amount of such Euro-Dollar Loan.
"Margin Stock" means "margin stock" as defined in
Regulations T, U or X.
"Material Adverse Effect" has the meaning set forth in
Section 4.04(c).
"Material Debt" means Debt (except Debt outstanding
hereunder) of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions, in an
aggregate principal or face amount exceeding $10,000,000.
"Material Financial Obligations" means a principal or
face amount of Debt (other than the Loans) and/or payment or
collateralization obligations in respect of Derivatives Obligations
of the Borrower and/or one or more of its subsidiaries, arising in
one or more related or unrelated transactions, exceeding in the
aggregate $10,000,000.
"Material Plan" means, at any time, a Plan or Plans
ving aggregate Unfunded Liabilities in excess of $25,000,000.
"Money Market Borrowing Date" has the meaning specified
in Section 2.03.
"Money Market Loans" means Loans made pursuant to the
terms and conditions set forth in Section 2.03.
"Money Market Loan Notes" means the promissory notes of
the Borrower, substantially in the form of Exhibit A-2, evidencing
the obligation of the Borrower to repay the Money Market Loans,
together with all amendments, consolidations, modifications,
renewals and supplements thereto.
"Money Market Quote" has the meaning specified in
Section 2.03.
"Money Market Quote Request" has the meaning specified
in Section 2.03(b).
"Money Market Rate" has the meaning specified in
Section 2.03(c)(ii)(C).
"Moody's" means Xxxxx'x Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any
period, the aggregate amount of net income of such person, after
taxes, for such period, as determined in accordance with GAAP.
"Notes" means, individually and collectively, as the
context shall require or permit, each of the Syndicated Notes and
the Money Market Notes.
"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"Officer's Certificate" has the meaning set forth in
Section 3.01(g).
"Participant" has the meaning set forth in Section
9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" means (i) at
any time no Debt Rating exists, the date (A) such Debt Rating
ceases to exist or (B) which is the last date on which financial
statements are permitted to be delivered pursuant to Section
5.01(a) or (b), as applicable, or (ii) the date the Debt Rating is
issued and each date on which the Debt Rating changes.
"Permitted Acquisitions" means acquisitions of the
stock or assets of another Person if (i) such Person or the assets
so acquired is or are to be used in the same or related line of
business to the lines of business of the Borrower and its
Subsidiaries, (ii) such acquisition does not involve, directly or
indirectly, any hostile tender offer for, or other hostile
acquisition of, stock of any corporation with a view toward
obtaining control of such other corporation and (iii) after giving
effect to such acquisition, no Default or Event of Default will be
in existence.
"Person" means an individual, a corporation, a
partnership, an unincorporated association, a trust or any other
entity or organization, including, but not limited to, a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit
plan which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and is
either (i) maintained by a member of the ERISA Group for employees
of any member of the ERISA Group or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under
which more than one employer makes contributions and to which a
member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five plan years
made contributions.
"Prime Rate" refers to that interest rate so
denominated and set by Wachovia from time to time as an interest
rate basis for borrowings. The Prime Rate is but one of several
interest rate bases used by Wachovia. Wachovia lends at interest
rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary,
wherever located.
"Quarterly Date" means each March 31, June 30,
September 30, and December 31.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior
to the Termination Date either (i) mandatorily redeemable (by
sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the
day on which an outstanding Syndicated Loan is maturing or a Base
Rate Borrowing is being converted to a Euro-Dollar Borrowing, if
and to the extent that the proceeds thereof are used entirely for
the purpose of paying such maturing Loan or Loan being converted,
excluding any difference between the amount of such maturing Loan
or Loan being converted and any greater amount being borrowed on
such day and actually either being made available to the Borrower
pursuant to Section 2.02(c) or remitted to the Agent as provided
Section 2.12, in each case as contemplated in Section 2.02(d).
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Regulation T" means Regulation T of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Regulation X" means Regulation X of the Board of
Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued
thereunder.
"Reported Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined
on a consolidated basis.
"Required Banks" means at any time Banks having at
least 66 2/3% of the aggregate amount of the Commitments or, if the
Commitments are no longer in effect, Banks holding at least 66 2/3%
of the aggregate outstanding principal amount of the sum of the (i)
Syndicated Loans and (ii) Money Market Loans.
"Restricted Debt of Subsidiaries" means at any time the
aggregate principal or face amount of all Debt of Subsidiaries,
except Debt of a Subsidiary owed to the Borrower or to a
wholly-owned Subsidiary.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's capital stock (except
dividends payable solely in shares of its capital stock) or (ii)
any payment on account of the purchase. redemption, retirement or
acquisition of (a) any shares of the Borrower's capital stock or
(b) any option, warrant or other right to acquire shares of the
Borrower's capital stock (but not including payments of principal,
premium (if any) or interest made pursuant to the terms of
convertible debt securities prior to conversion).
"SEC" means the Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Group, a division
of XxXxxx-Xxxx, Inc.
"Stated Maturity Date" means, with respect to any Money
Market Loan, the Stated Maturity Date therefor specified by the
Bank in the applicable Money Market Quote.
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly
or indirectly owned by the Borrower.
"Syndicated Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-1, evidencing the
obligation of the Borrower to repay Syndicated Loans, together with
all amendments, consolidations, modifications, renewals and
supplements thereto.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar
Loans made pursuant to the terms and conditions set forth in
Section 2.01.
"Taxes" has the meaning set forth in Section 2.12(c).
"Temporary Cash Investment" means any Investment in (i)
direct obligations of the United States or any agency thereof or
obligations guaranteed by the United States or any agency thereof,
(ii) commercial paper rated at least A-I by S&P (but in no event
less than A-3 in the event that the Xxxxx'x rating is used) or
P-1 by Moody's. (but in no event less than P-3 in the event that
the S&P rating is used), (iii) time deposits with, including
certificates of deposit issued by, any office located in the
clause (i) above entered into an office of a bank or trust
company meeting the criteria specified in clause (iii) above,
provided in each case that such Investment matures within one
year after it is acquired by the Borrower or a Subsidiary.
"Termination Date" means whichever is applicable of (i)
November 20, 2000, (ii) such later date to which it is extended by
the Banks pursuant to Section 2.05(b), in their sole and absolute
discretion, (iii) the date the Commitments are terminated pursuant
to Section 6.01 following the occurrence of an Event of Default,
or (iv) the date the Borrower terminates the Commitments entirely
pursuant to Section 2.08.
"Third Parties" means all lessees, sublessees, licensees
and other users of the Properties, excluding those users of the
Properties in the ordinary course of the Borrower's business and
on a temporary basis.
"Total Debt/EBITDA Ratio" means the ratio of (i)
Consolidated Total Debt to (ii) Consolidated EBITDA.
"Transferee" has the meaning set forth in Section
9.08(d).
"Unfunded Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the value of all
benefit liabilities under such Plan, determined on a plan
termination basis using the assumptions prescribed by the PBGC for
purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under
Title IV of ERISA (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a
potential liability of a member of the ERISA Group to the PBGC or
any other Person under Title IV of ERISA.
"Unused Commitment" means at any date, with respect to
any Bank, an amount equal to its Commitment less the aggregate
outstanding principal amount of its Syndicated Loans (but not its
Money Market Loans).
"Wachovia" means Wachovia Bank, N.A., a national
banking association, and its successors.
"Y2K Plan" has the meaning set forth in Section 4.12.
"Year 2000 Compliant and Ready" means that (a) the
Borrower's and its Subsidiaries hardware and software systems
which are material to the operation of its business will in all
material respects: (i) handle date information involving any and
all dates before, during and/or after January 1, 2000, including
accepting input, providing output and performing date calculations
in whole or in part; (ii) operate, accurately without interruption
on and in respect of any and all dates before, during and/or after
January 1, 2000 and without any change in performance; (iii) store
and provide date input information without creating any ambiguity
as to the century and; (b) the Borrower has developed alternative
plans to ensure business continuity in the event of the failure of
any or all of items (i) through (iii) in clause (a) above in this
definition.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all terms of an accounting
character used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared
in accordance with GAAP, applied on a basis consistent (except
for changes concurred in by the Borrower's independent public
accountants or otherwise required by a change in GAAP) with the
most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Banks
unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this
Agreement or any of the other Loan Documents: (i) the Borrower
shall objected to determining such compliance on such basis at the
time of delivery of such financial statements, (ii) the Required
Banks shall so object in writing within 30 days after the delivery
of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used
in the preparation of the latest financial statements as to which
such objection shall not have been made (which, if objection is
made in respect of the first financial statements delivered under
Section 5.01 hereof, shall mean the financial statements referred
to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits",
"Schedules", "Sections" and other Subdivisions are references to
articles, exhibits, schedules, sections and other subdivisions
hereof.
SECTION 1.04. Use of Defined Terms. All terms defined
in this Agreement shall have the same defined meanings when used
in any of the other Loan Documents, unless otherwise defined
therein or unless the referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits",
"Schedules", "Sections" and other Subdivisions are references to
articles, exhibits, schedules, sections and other subdivisions
hereof.
SECTION 1.04. Use of Defined Terms. All terms defined
in this Agreement shall have the same defined meanings when used
in any of the other Loan Documents, unless otherwise defined
therein or unless the context shall require otherwise.
SECTION 1.05. Terminology. All personal pronouns used
in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders; the singular shall
include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of
this Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally
agrees, on the terms and conditions set forth herein, to make
Syndicated Loans to the Borrower from time to time before the
Termination Date; provided that,
(i) immediately after each such Syndicated Loan is
made, the aggregate outstanding principal amount of
Syndicated Loans by such Bank shall not exceed the
amount of its Commitment, and
(ii) the aggregate outstanding principal amount of
all Syndicated Loans and Money Market Loans shall not
exceed the aggregate amount of the Commitments.
Each Syndicated Borrowing under this Section shall be in an
aggregate principal amount of (i) for Base Rate Loans, $1,000,000
or any larger integral multiple of $100,000, and for Euro-Dollar
Loans, $5,000,000 or any larger integral multiple of $1,000,000,
except that any such Syndicated Borrowing may be in the aggregate
amount of the Unused Commitments and shall be made from the several
Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrower may borrow under this
Section 2.01, repay or, to the extent permitted by Section 2.10,
prepay Syndicated Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02. Method of Borrowing Syndicated Loans.
(a) The Borrower shall give the Agent notice (a "Notice of
Borrowing"), which shall be substantially in the form of Exhibit E,
on the same day for a Base Rate Borrowing, and at least 3
Euro-Dollar Business Days' notice prior to each Euro-Dollar
Borrowing (all notices being effective on the day delivered so
long as the Agent shall have received same prior to 11:00 A.M.,
Atlanta, Georgia time) specifying:
(i) the date of such Syndicated Borrowing, which
shall be a Domestic Business Day in the case of a Base
Rate Borrowing or a Euro-Dollar Business Day in the case
of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated
Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Base Rate Loans or Euro-Dollar
Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest
Period.
(b) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of
such Bank's ratable share of such Syndicated Borrowing and such
Notice of Borrowing, once received by the Agent, shall not
thereafter be revocable by the Borrower.
(c) Not later than 2:00 P.M. (Atlanta, Georgia time) on
the date of each Syndicated Borrowing, each Bank shall (except as
provided in paragraph (d) of this Section) make available its
ratable share of such Syndicated Borrowing, in Federal or other
funds immediately available in Atlanta, Georgia, to the Agent at
its address determined pursuant to Section 9.01. Unless the Agent
determines that any applicable condition specified in Article III
has not been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower at the Agent's aforesaid
address. Unless the Agent receives notice from a Bank, at the
Agent's address referred to in or specified pursuant to Section
9.01, (i) in the case of a Base Rate Borrowing, no later than
1:00 P.M. (local time at such address) on the same day as such
Base Rate Borrowing and (ii) in the case of any other type of
Syndicated Borrowing, no later than 4:00 P.M. (local time of such
address) on the Domestic Business Day before the date of a
Syndicated Borrowing, the Agent shall be entitled to assume that
such Bank will make a Syndicated Loan in connection with such
Synciated Borrowing and, in reliance on such assumption, the Agent
may (but shall not be obligated to) make available such Bank's
ratable share of such Syndiacted Borrowing to the Borrower for
the account of such Bank. If the Agent makes such Bank's ratable
share available to the Borrower and such Bank does not in fact
make its ratable share of such Symdicated Borrowing available on
such date, the Agent shall be entitled to recover such Bank's
ratable share from such Bank or the Borrower (an for such purpose
shall be entitled to charge such amount to any account of the
Borrower maintained with the Agent), together with interest
thereon for each day during the period from the date of such
Syndicated Borrowing until such sum shall be paid in full at a
rate per annum equal to the rate at which the Agent determines
that it obtained (or could have obtained) overnight Federal funds
to cover such amount for each such day during such period, provided
that any (i) such payment by the Borrower of such Bank's ratable
share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank and (ii) until
such Bank has paid its ratable share of such Syndicated Borrowing,
together with interest pursuant to the foregoing, it will have no
interest in or rights with respect to such Syndicated Borrowing
for any purpose hereunder. If the Agent does not exercise its
option to advance funds for the account of such Bank, it shall
forthwith notify the Borrower of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on
a day on which the Borrower is to repay all or any part of an
outstanding Syndicated Loan from such Bank, such Bank shall apply
the proceeds of its new Syndicated Loan to make such repayment as
a Refunding Loan and only an amount equal to the difference (if
any) between the amount being borrowed and the amount of such
Refunding Loan shall be made available by such Bank to the Agent
as provided in paragraph (c) of this Section, or remitted by the
Borrower to the Agent as provided in Section 2.12, as the case
may be.
(e) Notwithstanding anything to the contrary contained
in this Agreement, no Euro-Dollar Borrowing or Money Market
Borrowing may be made if there shall have occurred a Default or an
Event of Default, which Default or Event of Default shall not have
been cured or waived, and in such circumstances, all Refunding
Loans shall be made as Base Rate Loans (but shall bear interest at
the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to
specify whether the Syndicated Loans comprising such Syndicated
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, such
Syndicated Loans shall be made as Base Rate Loans. If the
Borrower is otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period
applicable thereto with the proceeds of a new Syndicated Borrowing,
and the Borrower fails to repay such Syndicated Loans using its
own moneys and fails to give a Notice of Borrowing in connection
with such new Syndicated Borrowing, a new Syndicated Borrowing
shall be deemed to be made on the date such Syndicated Loans
mature in an amount equal to the prinicpal amount of the
Syndicated Loans so maturing, and the Syndicated Loans comprising
such new Syndicated Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained
herein, including, without limitation Section 2.01 and Section
2.03, there shall not be more than 8 Interest Periods and/or
Stated Maturity Dates applicable to the Euro-Dollar Loans and/or
Money Market Loans at any given time.
SECTION 2.03. Money Market Loans. (a) In addition to
making Syndicated Borrowings, so long as the Borrower is at
pricing Level I, II, III or IV under whichever is applicable of
Table A or Table B in Section 2.06(a), the Borrower may, as set
forth in this Section 2.03, request the Banks to make offers to
make Money Market Borrowings available to the Borrower. The
Banks may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.03, provided that:
(i) the number of interest rates applicable to
Money Market Loans which may be outstanding at any given
time is subject to the provisions of Section 2.02(g);
(ii) the aggregate principal amount of all Money
Market Loans, together with the aggregate principal
amount of all Syndicated Loans, at any one time
outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time; and
(iii) the Money Market Loans of any Bank will be
deemed to be usage of the Commitments for the purpose of
calculating availability pursuant to Section 2.01(ii)
and 2.03(a)(ii), but will not reduce such Bank's
obligation to lend its pro rata share of the remaining
Unused Commitment.
(b) When the Borrower wishes to request offers to make
Money Market Loans, it shall give the Agent (which shall promptly
notify the Banks) notice substantially in the form of Exhibit I
hereto (a "Money Market Quote Request") so as to be received no
later than 11:00 A.M. (Atlanta, Georgia time) at least one Domestic
Business Day prior to the date of the Money Market Borrowing
proposed therein (or such other time and date as the Borrower and
the Agent, with the consent of the Required Banks, may agree),
specifying:
(i) the proposed date of such Money Market
Borrowing, which shall be a Domestic Business Day (the
"Money Market Borrowing Date");
(ii) the maturity date (or dates) (each a "Stated
Maturity Date") for repayment of each Money Market Loan to
be made as part of such Money Market Borrowing (which
Stated Maturity Date shall be that date occurring not
less than 7 days but not more than 180 days from the
date of such Money Market Borrowing); provided that the
Stated Maturity Date for any Money Market Loan may not
extend beyond the Termination Date (as in effect on the
date of such Money Market Quote Request); and
(iii) the aggregate amount of principal to be
requested by the Borrower as a result of such Money
Market Borrowing, which shall be at least $5,000,000
(and in larger integral multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a)
to be violated.
The Borrower may request offers to make Money Market Loans having
up to 3 different Stated Maturity Dates in a single Money Market
Quote Request; provided that the request for each separate Stated
Maturity Date shall be deemed to be a separate Money Market Quote
Request for a separate Money Market Borrowing. Except as
otherwise provided in the immediately preceding sentence, after
the first Money Market Quote Request has been given hereunder, the
Borrower shall make no more than 1 Money Market Quote Request
within any 5 consecutive Domestic Business Days pursuant to this
Section 2.03.
(c) (i) Each Bank may, but shall have no
obligation to, submit a response containing an offer to
make a Money Market Loan substantially in the form of
Exhibit J hereto (a "Money Market Quote") in response to
any Money Market Quote Request; provided that, if the
Borrower's request under Section 2.03(b) specified more
than 1 Stated Maturity Date, such Bank may, but shall
have no obligation to, make a single submission
containing a separate offer for each such Stated Maturity
Date and each such separate offer shall be deemed to be
a separate Money Market Quote. Each Money Market Quote
must be submitted to the Agent not later than 10:30 A.M.
(Atlanta, Georgia time) on the Money Market Borrowing
Date; provided that any Money Market Quote submitted by
Wachovia may be submitted, and may only be submitted, if
Wachovia notifies the Borrower of the terms of the offer
contained therein no later than 10:15 A.M. (Atlanta,
Georgia time) on the Money Market Borrowing Date (or 15
minutes prior to the time that the other Banks are
required to have submitted their respective Money Market
Quotes). Subject to Section 6.01, any Money Market Quote
so made shall be irrevocable except with the written
consent of the Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing
Date and the Stated Maturity Date therefor;
(B) the principal amounts of the Money
Market Loan which the quoting Bank is willing
to make for the applicable Money Market Quote,
which principal amounts (x) may be greater
than or less than the Commitment of the
quoting Bank, (y) shall be at least $5,000,000
or a larger integral multiple of $1,000,000,
and (z) may not exceed the principal amount of
the Money Market Borrowing for which offers
were requested;
(C) the rate of interest per annum
(rounded upwards, if necessary, to the nearest
1/100th of 1%) offered for each such Money
Market Loan (such rate being hereinafter
referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no
Money Market Quote shall contain qualifying, conditional or
similar language or propose terms other than or in addition
to those set forth in the applicable Money Market Quote
Request (other than setting forth the maximum principal
amounts of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period) and, in
particular, no Money Market Quote may be conditioned upon
acceptance by the Borrowers of all (or some specified
minimum) of the principal amount of the Money Market Loan
for which such Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after
the Money Market Quote is submitted (but in any event not later
than 10:30 A.M. (Atlanta, Georgia time)) on the Money Market
Borrowing Date, notify the Borrower of the terms (i) of any Money
Market Quote submitted by a Bank that is in accordance with
Section 2.03(c) and (ii) of any Money Market Quote that amends,
modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money Market Quote
is submitted solely to correct a manifest error in such former
Money Market Quote. The Agent's notice to the Borrower shall
specify (A) the principal amounts of the Money Market Borrowing
for which offers have been received and (B) the respective
principal amounts and Money Market Rates so offered by each Bank
(identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time)
on the Money Market Borrowing Date, the Borrower shall notify the
Agent of its acceptance or nonacceptance of the offers so notified
to it pursuant to Section 2.03(d) and the Agent shall promptly
notify each affected Bank. In the case of acceptance, such notice
shall specify the aggregate principal amount of offers (for each
Stated Maturity Date) that are accepted. The Borrower may accept
any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money
Market Borrowing may not exceed the applicable amount
set forth in the related Money Market Quote Request;
(ii) the aggregate principal amount of each Money
Market Borrowing shall be at least $5,000,000 (and in
larger integral multiples of $1,000,000) but shall not
cause the limits specified in Section 2.03(a) to be
violated;
(iii) acceptance of offers may only be made in
ascending order of Money Market Rates; and
(iv) the Borrower may not accept any offer where
the Agent has advised the Borrower that such offer fails
to comply with Section 2.03(c)(ii) or otherwise fails to
comply with the requirements of this Agreement including
without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market
Rates for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Stated
Maturity Date, the principal amount of Money Market Loans in
respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible (to the
nearest $100,000) in proportion to the aggregate principal amount
of such offers. Determinations by the Borrower of the amounts of
Money Market Loans shall be conclusive in the absence of manifest
error.
(f) Any Bank whose offer to make any Money Market Loan
has been accepted shall, not later than 12:00 P.M. (Atlanta,
Georgia time) on the Money Market Borrowing Date, make the
appropriate amount of such Money Market Loan available to the
Agent at its address referred to in Section 9.01 in immediately
available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Borrower on such date by depositing the same, in
immediately available funds, not later than 4:00 P.M. (Atlanta,
Georgia time), in an account of such Borrower maintained with
Wachovia.
(g) After any Money Market Loan has been funded, the
Agent shall notify the Banks of the aggregate principal amount of
the Money Market Quotes received and the highest and lowest rates
included in such Money Market Quotes.
SECTION 2.04. Notes. (a) The Syndicated Loans of each
Bank shall be evidenced by a single Syndicated Loan Note payable
to the order of such Bank for the account of its Lending Office in
an amount equal to the original principal amount of such Bank's
Commitment.
(b) The Money Market Loans made by any Bank to the
Borrower shall be evidenced by a single Money Market Note payable
to the order of such Bank for the account of its Lending Office in
an amount equal to the original principal amount of the Aggregate
Commitments.
(c) Upon receipt of each Bank's Notes pursuant to
Section 3.01, the Agent shall deliver such Notes to such Bank.
Each Bank shall record, and prior to any transfer of its Notes
shall endorse on the schedules forming a part thereof appropriate
notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrower with
respect thereto, and such schedules of each such Bank's Notes
shall constitute rebuttable resumptive evidence of the
respective principal amounts owing and unpaid on such Bank's
Notes; provided that the failure of any Bank to make, or any
error in making, any such recordation or endorsement shall not
affect the obligation of the Borrower hereunder or under the
Notes or the ability of any Bank to assign its Notes. Each Bank
is hereby irrevocably authorized by the Borrower so to endorse
its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.05. Maturity of Loans. (a) Each Loan
included in any Borrowing shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest
Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding
principal amount of the Loans, together with all accrued but
unpaid interest thereon, if any, shall be due and payable on
November 20, 2000, unless the Termination Date is otherwise
extended by the Banks, in their sole and absolute discretion.
Upon the written request of the Borrower, which request shall be
delivered to the Agent at least 45 days, but not more than 60 days,
prior to each Extension Date (as such term is hereinafter defined),
the Banks shall have the option without any obligation whatsoever
so to do) of extending the Termination Date for additional
one-year periods on each of November 20, 1999 and November 20, 2000
(each, an "Extension Date"). Each Bank shall notify the Borrower
and the Agent at least 30 days prior to the relevant Extension
Date whether or not it chooses to extend the Termination Date for
such an additional one-year period (but any Bank which fails to
give such notice within such period shall be deemed not to have
extended); provided, that the Termination Date shall not be
extended with respect to any of the Banks unless:
(i) the Required Banks are willing to extend the
Termination Date; and
(ii) on or before the Extension Date, as to the
Commitment of any Bank which gave notice that it chooses
not to extend, or which is deemed pursuant to the
foregoing not to have extended (any such Bank being a
"Terminating Bank"), one of the following shall occur:
(x) the remaining Banks shall purchase ratable
assignments (without any obligation so to do) from
such Terminating Bank (in the form of an Assignment
and Acceptance) in accordance with their respective
percentage of the remaining Aggregate Commitments;
provided, that, such Banks shall be provided such
opportunity (which opportunity shall allow such
Banks at least 5 Domestic Business Days in which to
make a decision) prior to the Borrower finding
another bank pursuant to the immediately succeeding
clause (y); and, provided, further, that, should
any of the remaining Banks elect not to purchase
such an assignment from any Terminating Bank which
includes the ratable interest that was otherwise
available to such non-purchasing remaining Bank or
Banks, as the case may be, or
(y) the Borrower shall find another bank,
acceptable to the Agent, willing to accept an
assignment from such Terminating Bank (in the form
of an Assignment and Acceptance) on or before the
Extension Date, or
(z) the Borrower shall reduce the aggregate
Commitments in an amount equal to the Commitment of
any such Terminating Bank.
SECTION 2.06. Interest Rates. (a) "Applicable Margin"
means:
(i) for the first 90 days after the Closing Date, (x) for
any Base Rate Loan, 0.00%, and (y) for any Euro-Dollar Loan,
0.50%; and
(ii) thereafter, (x) for any Base Rate Loan, 0.00% and (y)
for each Euro-Dollar Loan, the percentage determined on each
Performance Pricing Determination Date by reference to Table A set
forth below as to such type of Loan and the Debt/EBITDA Ratio for
the four Fiscal Quarters ending immediately prior to such
Performance Pricing Determination Date (except in the case of the
Performance Pricing Determination Date which occurs 95 days after
the end of each Fiscal Year, the Debt/EBITDA Ratio shall be based
on such Fiscal Year); provided, that from and after the time that
a Debt Rating is assigned by both Xxxxx'x and S&P, reference
instead shall be made to Table B set forth below as to such type
of Loan and the Debt Rating for such quarterly or annual period.
TABLE A
-------------------------------------------------------------
Level I Level II Level III Level IV Level V
---------- ------- -------- --------- -------- --------
Debt/ <1.5 >or= 1.5 >or= 2.0 >or= 2.5 >or= 3.0
BITDA to 1.0 to 1.0 to 1.0 to 1.0 to 1.0
Ratio but <2.0 but <2.5 but <3.0
to 1.0 to 1.0 to 1.0
---------- ------- -------- --------- -------- --------
Applicable
Margin 0.30% 0.40% 0.50% 0.625% 0.775%
-------------------------------------------------------------
TABLE B
-------------------------------------------------------------
Level I Level II Level III Level IV Level V
---------- ------- -------- --------- -------- -------
Debt >Baa1 Xxx0 Xxx0 Xxx0 or= 1.5 >or= 2.0 >or= 2.5 >or= 3.0
EBITDA to 1.0 to 1.0 to 1.0 to 1.0 to 1.0
Ratio but <2.0 but <2.5 but <3.0
to 1.0 to 1.0 to 1.0
-------- ------- -------- --------- --------- --------
Facility
Fee 0.15% 0.175% 0.20% 0.225% 0.275%
-------------------------------------------------------------
TABLE B
-------------------------------------------------------------
Level I Level II Level III Level IV Level V
-------- ------- -------- --------- --------- --------
Debt >Baa1 Xxx0 Xxx0 Xxx0
