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Exhibit (a)(12)
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$155,000,000
LOAN AND SECURITY AGREEMENT
Dated as of August 27, 1999
Between
WINSLOEW FURNITURE, INC.
WINSTON FURNITURE COMPANY OF ALABAMA, INC.
LOEWENSTEIN, INC.
TEXACRAFT, INC.
TROPIC CRAFT, INC.
WINSTON PROPERTIES, INC.
POMPEII FURNITURE CO., INC.
(the Borrowers)
and
THE FINANCIAL INSTITUTIONS PARTY
HERETO FROM TIME TO TIME
(the Lenders)
and
XXXXXX FINANCIAL, INC.
CIBC INC.
(the Co-Agents)
and
BANKBOSTON, N.A.
(the Administrative Agent)
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
(the Arranger)
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS
SECTION 1.1 Definitions..........................................................................................1
SECTION 1.2 General Interpretive Rules..........................................................................41
SECTION 1.3 Exhibits, Annexes and Schedules.....................................................................43
ARTICLE 2 REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans..............................................................................44
SECTION 2.2 Borrowing...........................................................................................44
SECTION 2.3 Repayment of Revolving Credit Loans.................................................................45
SECTION 2.4 Revolving Credit Note...............................................................................45
SECTION 2.5 Extension of Revolving Credit Facility..............................................................45
ARTICLE 2A SWINGLINE FACILITY
SECTION 2A.1 Swingline Loans....................................................................................46
SECTION 2A.2 Making Swingline Loans.............................................................................46
SECTION 2A.3 Repayment of Swingline Loans.......................................................................47
SECTION 2A.4 Prepayment.........................................................................................47
SECTION 2A.5 Swingline Note.....................................................................................47
SECTION 2A.6 Settlement with Other Lenders......................................................................47
ARTICLE 3 LETTER OF CREDIT FACILITY
SECTION 3.1 Agreement to Issue..................................................................................48
SECTION 3.2 Amounts.............................................................................................48
SECTION 3.3 Conditions..........................................................................................48
SECTION 3.4 Issuance of Letters of Credit.......................................................................49
SECTION 3.5 Duties of BankBoston................................................................................49
SECTION 3.6 Payment of Reimbursement Obligations................................................................50
SECTION 3.7 Participations......................................................................................50
SECTION 3.8 Indemnification, Exoneration........................................................................52
SECTION 3.9 Supporting Letter of Credit; Cash Collateral Account................................................53
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(1) This Table of Contents is included for reference purposes only and does not
constitute part of the Loan and Security Agreement.
(i)
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ARTICLE 4 TERM LOAN FACILITIES
SECTION 4.1 Term Loans..........................................................................................55
SECTION 4.2 Manner of Borrowing Term Loans......................................................................55
SECTION 4.3 Repayment of Term Loans.............................................................................55
SECTION 4.4 Term Notes..........................................................................................56
ARTICLE 4A ACQUISITION FACILITY
SECTION 4A.1 Acquisition Loans..................................................................................57
SECTION 4A.2 Borrowing..........................................................................................57
SECTION 4A.3 Repayment of Acquisition Loans.....................................................................58
SECTION 4A.4 Acquisition Note...................................................................................58
ARTICLE 5 GENERAL LOAN PROVISIONS
SECTION 5.1 Interest............................................................................................59
SECTION 5.2 Certain Fees........................................................................................60
SECTION 5.3 Borrowing and Conversion or Continuation of Loans...................................................62
SECTION 5.4 Conversion or Continuation..........................................................................63
SECTION 5.5 Manner of Payment...................................................................................63
SECTION 5.6 General.............................................................................................63
SECTION 5.7 Loan Accounts; Statements of Account................................................................64
SECTION 5.8 Reduction of Revolving Credit Facility and Acquisition Facility; Termination of Agreement............64
SECTION 5.9 Making of Loans.....................................................................................66
SECTION 5.10 Settlement Among Lenders...........................................................................68
SECTION 5.11 Prepayments of Loans...............................................................................71
SECTION 5.12 Payments Not at End of Interest Period; Failure to Borrow..........................................74
SECTION 5.13 Assumptions Concerning Funding of Eurodollar Rate Loans............................................75
SECTION 5.14 Duration of Interest Periods; Maximum Number of Eurodollar Rate Loans; Minimum Increments..........75
SECTION 5.15 Changed Circumstances..............................................................................75
SECTION 5.16 Cash Collateral Account; Investment Accounts.......................................................78
SECTION 5.17 Borrowers' Representative..........................................................................79
SECTION 5.18 Joint and Several Liability, No Modification or Release of Obligations.............................80
SECTION 5.19 Obligations Absolute...............................................................................80
SECTION 5.20 Waiver of Suretyship Defenses......................................................................81
SECTION 5.21 Defaulting Lender's Status.........................................................................82
(ii)
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ARTICLE 6 CONDITIONS PRECEDENT
SECTION 6.1 Conditions Precedent to Initial Loans...............................................................83
SECTION 6.2 Additional Conditions to Acquisition Loans..........................................................88
SECTION 6.3 All Loans and Letters of Credit.....................................................................90
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 7.1 Representations and Warranties......................................................................91
SECTION 7.2 Survival of Representations and Warranties, Etc....................................................102
ARTICLE 8 SECURITY INTEREST
SECTION 8.1 Security Interest..................................................................................104
SECTION 8.2 Continued Priority of Security Interest............................................................105
ARTICLE 9 COLLATERAL COVENANTS
SECTION 9.1 Verification and Notification......................................................................107
SECTION 9.2 Disputes, Returns and Adjustments..................................................................107
SECTION 9.3 Invoices...........................................................................................108
SECTION 9.4 Delivery of Instruments............................................................................108
SECTION 9.5 Sales of Inventory.................................................................................108
SECTION 9.6 Ownership and Defense of Title.....................................................................108
SECTION 9.7 Insurance..........................................................................................109
SECTION 9.8 Location of Offices and Collateral.................................................................110
SECTION 9.9 Records Relating to Collateral.....................................................................110
SECTION 9.10 Inspection........................................................................................110
SECTION 9.11 Information and Reports...........................................................................111
SECTION 9.12 Power of Attorney.................................................................................112
SECTION 9.13 Additional Real Estate and Leases.................................................................112
SECTION 9.14 Assignment of Claims Act..........................................................................113
ARTICLE 10 AFFIRMATIVE COVENANTS
SECTION 10.1 Preservation of Corporate Existence and Similar Matters...........................................114
SECTION 10.2 Compliance with Applicable Law....................................................................114
SECTION 10.3 Maintenance of Property...........................................................................114
SECTION 10.4 Conduct of Business...............................................................................114
SECTION 10.5 Insurance.........................................................................................114
SECTION 10.6 Payment of Taxes and Claims.......................................................................115
SECTION 10.7 Accounting Methods and Financial Records..........................................................115
SECTION 10.8 Use of Proceeds...................................................................................115
SECTION 10.9 Hazardous Waste and Substances; Environmental Requirements........................................116
SECTION 10.10 Year 2000........................................................................................116
SECTION 10.11 Execution of Subsidiary Guaranties; Additional Borrowers.........................................116
(iii)
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ARTICLE 11 INFORMATION
SECTION 11.1 Financial Statements..............................................................................118
SECTION 11.2 [RESERVED]........................................................................................119
SECTION 11.3 Officer's Certificate.............................................................................119
SECTION 11.4 Copies of Other Reports...........................................................................119
SECTION 11.5 Notice of Litigation and Other Matters............................................................120
SECTION 11.6 ERISA.............................................................................................120
SECTION 11.7 Revisions or Updates to Schedules.................................................................121
ARTICLE 12 NEGATIVE COVENANTS
SECTION 12.1 Financial Ratios..................................................................................122
SECTION 12.2 Debt..............................................................................................123
SECTION 12.3 Guaranties........................................................................................123
SECTION 12.4 Investments.......................................................................................124
SECTION 12.5 Capital Expenditures..............................................................................124
SECTION 12.6 Restricted Distributions and Payments, Etc........................................................124
SECTION 12.7 Merger, Consolidation and Sale of Assets..........................................................124
SECTION 12.8 Transactions with Affiliates......................................................................125
SECTION 12.9 Liens.............................................................................................125
SECTION 12.10 Real Estate Leases...............................................................................125
SECTION 12.11 Benefit Plans....................................................................................125
SECTION 12.12 Sales and Leasebacks.............................................................................125
SECTION 12.13 Amendments of Other Agreements...................................................................125
ARTICLE 13 DEFAULT
SECTION 13.1 Events of Default.................................................................................127
SECTION 13.2 Remedies..........................................................................................130
SECTION 13.3 Application of Proceeds...........................................................................132
SECTION 13.4 Power of Attorney.................................................................................133
SECTION 13.5 Miscellaneous Provisions Concerning Remedies......................................................134
SECTION 13.6 Trademark License.................................................................................134
ARTICLE 14 ASSIGNMENTS
SECTION 14.1 Successors and Assigns; Participations............................................................136
SECTION 14.2 Representation of Lenders.........................................................................139
(iv)
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ARTICLE 15 ADMINISTRATIVE AGENT
SECTION 15.1 Appointment of Administrative Agent...............................................................140
SECTION 15.2 Delegation of Duties..............................................................................140
SECTION 15.3 Exculpatory Provisions............................................................................140
SECTION 15.4 Reliance by Administrative Agent..................................................................141
SECTION 15.5 Notice of Default.................................................................................141
SECTION 15.6 Non-Reliance on Administrative Agent and Other Lenders............................................141
SECTION 15.7 Indemnification...................................................................................142
SECTION 15.8 Administrative Agent in Its Individual Capacity...................................................142
SECTION 15.9 Successor Administrative Agent....................................................................143
SECTION 15.10 Co-Agents........................................................................................144
SECTION 15.11 Documents to be Forwarded........................................................................144
ARTICLE 16 MISCELLANEOUS
SECTION 16.1 Notices...........................................................................................145
SECTION 16.2 Expenses..........................................................................................146
SECTION 16.3 Stamp and Other Taxes.............................................................................148
SECTION 16.4 Setoff............................................................................................148
SECTION 16.5 Litigation........................................................................................148
SECTION 16.6 Waiver of Rights..................................................................................149
SECTION 16.7 Consent to Advertising and Publicity..............................................................150
SECTION 16.8 Reversal of Payments..............................................................................150
SECTION 16.9 Injunctive Relief.................................................................................150
SECTION 16.10 Accounting Matters...............................................................................151
SECTION 16.11 Amendments.......................................................................................151
SECTION 16.12 Assignment.......................................................................................152
SECTION 16.13 Performance of Borrowers' Duties.................................................................153
SECTION 16.14 Indemnification..................................................................................153
SECTION 16.15 All Powers Coupled with Interest.................................................................153
SECTION 16.16 Survival.........................................................................................153
SECTION 16.17 Titles and Captions..............................................................................154
SECTION 16.18 Severability of Provisions.......................................................................154
SECTION 16.19 Governing Law....................................................................................154
SECTION 16.20 Counterparts.....................................................................................154
SECTION 16.21 Reproduction of Documents........................................................................154
SECTION 16.22 Term of Agreement................................................................................155
SECTION 16.23 Pro-Rata Participation...........................................................................155
(v)
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ANNEXES, EXHIBITS AND SCHEDULES
ANNEX A COMMITMENTS
ANNEX B PRICING MATRIX
EXHIBIT A-1 FORM OF REVOLVING CREDIT NOTE
EXHIBIT A-2 FORM OF SWINGLINE NOTE
EXHIBIT B-1 FORM OF TERM NOTE A
EXHIBIT B-2 FORM OF TERM NOTE B
EXHIBIT B-3 FORM OF TERM NOTE C
EXHIBIT B-4 FORM OF ACQUISITION NOTE
EXHIBIT C FORM OF BORROWING BASE CERTIFICATE
EXHIBIT D FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT E-1 FORM OF CONFIRMATION OF NOTICE OF BORROWING (REVOLVING CREDIT LOAN)
EXHIBIT E-2 FORM OF CONFIRMATION OF NOTICE OF BORROWING (SWINGLINE LOAN)
EXHIBIT E-3 FORM OF CONFIRMATION OF NOTICE OF BORROWING (ACQUISITION LOAN)
EXHIBIT F FORM OF NOTICE OF CONVERSION OR CONTINUATION
EXHIBIT G FORM OF COVENANT COMPLIANCE CERTIFICATE
EXHIBIT H FORM OF SUBSIDIARIES GUARANTY
EXHIBIT I FORM OF GUARANTOR SECURITY AGREEMENT
Schedule 1.1A WinsLoew Merger Documents
Schedule 1.1B Permitted Investments
Schedule 1.1C Permitted Liens
Schedule 1.1D Trivest Investors
Schedule 6.1(c)(12) Environmental Reports
Schedule 6.1(c)(27) Sources and Uses of Funds
Schedule 7.1(a) Organization
Schedule 7.1(b) Capitalization
Schedule 7.1(c) Subsidiaries; Ownership of Stock
Schedule 7.1(e) Compliance with Laws
Schedule 7.1(g) Governmental Approvals
Schedule 7.1(h) Title to Properties
Schedule 7.1(i) Liens
Schedule 7.1(j) Indebtedness and Guaranties
Schedule 7.1(k) Litigation
Schedule 7.1(l) Tax Matters
(vi)
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Schedule 7.1(p) ERISA
Schedule 7.1(t) Location of Offices and Receivables
Schedule 7.1(u) Location of Inventory
Schedule 7.1(v) Equipment
Schedule 7.1(w) Bank Accounts
Schedule 7.1(x) Intellectual Property
Schedule 7.1(y) Real Estate
Schedule 7.1(z) Corporate and Fictitious Names
Schedule 7.1(cc) Employee Relations
Schedule 7.1(dd) Trade Names
Schedule 10.8 Use of Proceeds
(vii)
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LOAN AND SECURITY AGREEMENT
Dated as of August 27, 1999
WINSLOEW FURNITURE, INC. a Florida corporation, WINSTON FURNITURE
COMPANY OF ALABAMA, INC., an Alabama corporation, LOEWENSTEIN, INC., a Florida
corporation, TEXACRAFT, INC., a Texas corporation, TROPIC CRAFT, INC., a Florida
corporation, WINSTON PROPERTIES, INC., an Alabama corporation, POMPEII FURNITURE
CO., INC., a Florida corporation, the financial institutions party to this
Agreement from time to time (the "Lenders"), XXXXXX FINANCIAL, INC. and CIBC
INC. as co-agents (each a "Co-Agent" and collectively, "Co-Agents"), and
BANKBOSTON, N.A., a national banking association, as administrative agent for
the Lenders, agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. For the purposes of this Agreement:
"Account Debtor" means a Person who is obligated on a Receivable.
"Acquire" or "Acquisition", as applied to any Business Unit or
Investment, means the acquisition of such Business Unit or Investment by
purchase, exchange, issuance of stock or other securities, or by merger,
reorganization or any other method.
"Acquisition Facility" means the credit facility described in SECTION
4A.1 in an aggregate principal amount at any one time outstanding not to exceed
$20,000,000.
"Acquisition Facility Lender" means each Lender that has a Commitment
under the Acquisition Facility or if the Commitments are terminated, that has
outstanding Acquisition Loans.
"Acquisition Facility Termination Date" means December 31, 2001.
"Acquisition Loan" means each Loan made to the Borrowers pursuant to
SECTION 4A.1 (and all of such Loans collectively) and refers to both Eurodollar
Rate Acquisition Loans and Base Rate Acquisition Loans.
"Acquisition Note" means each Acquisition Note made by the Borrowers
payable to the order of a Lender evidencing the joint and several obligation of
the Borrowers to pay the aggregate unpaid principal amount of the Loans made to
them by such Lender under the Acquisition Facility (and any promissory note or
notes that may be issued from time to time in substitution, renewal extension,
replacement or exchange therefor whether payable to such Lender or to a
different Lender in connection with a Person becoming a Lender after the
Effective Date or otherwise) substantially in the form of EXHIBIT B-4 hereto,
with all blanks properly completed
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either as originally executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or refinanced.
"Acquisition Target" means a Person or business proposed to be Acquired
by a Borrower for consideration that includes proceeds of a Borrowing under the
Acquisition Facility.
"Administrative Agent" means BankBoston and any successor agent
appointed pursuant to SECTION 15.9 hereof.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of SECTION
16.1.
"Affected Lender" has the meaning set forth in SECTION 5.7(D).
"Affiliate" means, with respect to a Person, (a) any partner, officer,
shareholder or member (if holding more than 10% of the outstanding equity
interests of such Person), director, manager, employee or managing agent of such
Person, (b) any spouse, parents, siblings, children or grandchildren of such
Person, (c) any corporation, limited liability company, association,
partnership, trust, entity or enterprise in which such Person is a director,
officer, manager or general partner, and (d) any other Person (other than a
Subsidiary) that, (i) directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such given
Person, (ii) directly or indirectly beneficially owns or holds 10% or more of
any class of voting stock or partnership or membership or other voting interest
of such Person or any Subsidiary of such Person, or (iii) 10% or more of the
voting stock or partnership or membership or other voting interest of which is
directly or indirectly beneficially owned or held by such Person or a Subsidiary
of such Person. The term "control" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through ownership of voting securities or partnership or other
voting interest, by contract or otherwise. Each Subsidiary of a Lender shall be
deemed an Affiliate of such Lender.
"Agreement" means and includes this Agreement, including all Schedules,
Exhibits and other attachments hereto, and all amendments, modifications and
supplements hereto and thereto.
"Agreement Date" means the date as of which this Agreement is dated.
"Anniversary" means each anniversary of the Effective Date.
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all governmental bodies and of all
orders and decrees of all courts and arbitrators, including, without limitation,
Environmental Laws.
"Applicable Margin" means as to each Type of Loan under each Facility,
the Tier V rate per annum set forth under the appropriate caption on the pricing
matrix attached hereto as ANNEX B, subject to quarterly adjustment as follows:
From and after the delivery of the consolidated
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quarterly financial statements of WinsLoew and its Consolidated Subsidiaries for
the Fiscal Quarter ending December 31, 1999 and the related officer's
certificate in accordance with the respective provisions of SECTIONS 11.1(B) and
11.3, such percentages will be adjusted, effective the third Business Day after
delivery of such financial statements and the equivalent financial statements
for each succeeding Fiscal Quarter, to the Tier for each Facility and Type of
Loan set forth in ANNEX B that corresponds to the Total Funded Debt to EBITDA
Ratio reflected in such financial statements and the related certificate,
PROVIDED, that if a Default or Event of Default exists at the time, no downward
adjustment in the Applicable Margin shall be effected.
"Arranger" means BancBoston Xxxxxxxxx Xxxxxxxx Inc.
"Asset Disposition" means the disposition of any asset of a Borrower or
any of its Subsidiaries, other than sales of Inventory in the ordinary course of
business, disposition of worn-out and obsolete Equipment and Inventory, not
longer useful in the Borrowers' business, consistent with past practices of
Winston and Loewenstein.
"Assignment and Acceptance" means an assignment and acceptance in the
form attached hereto as EXHIBIT D assigning all or a portion of a Lender's
interests, rights and obligations under this Agreement pursuant to SECTION 14.1.
"Availability" means at any time (a) the Borrowing Base at such time
minus (b) the aggregate outstanding principal amount of Revolving Credit Loans
and Swingline Loans at such time.
"BankBoston" means BankBoston, N.A., a national banking association
and, following its announced merger with Fleet Financial Group, Inc., the
survivor of such combination, in its individual capacity and not as
Administrative Agent hereunder.
"Base Rate" means at any time an interest rate per annum equal to the
greater of (i) the rate of interest publicly announced from time to time by
BankBoston at its head office in Boston, Massachusetts as its "base" rate as in
effect at such time, and (ii) the Federal Funds Effective Rate plus 1/2 of 1%
per annum (rounded upward, if necessary, to the next 1/8 of 1%).
"Base Rate Acquisition Loan" means each Base Rate Loan outstanding
under the Acquisition Facility.
"Base Rate Loan" means each Borrowing of Loans bearing interest
determined with reference to the Base Rate and a specified principal amount of
such Loans outstanding.
"Base Rate Revolving Credit Loans" means each Base Rate Loan
outstanding under the Revolving Credit Facility.
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"Base Rate Term Loan" means each Base Rate Loan outstanding under the
Term Loan A Facility, the Term Loan B Facility or the Term Loan C Facility.
"Base Rate Term Loan A" means the Base Rate Loan outstanding under the
Term Loan A Facility.
"Base Rate Term Loan B" means the Base Rate Loan outstanding under the
Term Loan B Facility.
"Base Rate Term Loan C" means the Base Rate Loan outstanding under the
Term Loan C Facility.
"Benefit Plan" means, whether established before or after the Agreement
Date and excluding any Multiemployer Plan,
(a) a "welfare plan" as defined in SECTION 3(1) of ERISA as to which
the Borrower is an "employer" as defined in SECTION 3(5) of ERISA, and
(b) an "employee pension benefit plan" as defined in SECTION 3(2) of
ERISA as to which the Borrower or (if such plan is subject to Title IV of ERISA)
any Related Company is or within the past six years has been such an "employer."
"Borrower" means each of WinsLoew, Winston, Loewenstein, Texacraft,
Tropic Craft, WPI, Pompeii and each other Person a party to this Agreement as a
"Borrower," whether as of the Effective Date or as of a later date, pursuant to
SECTION 6.2 or otherwise.
"Borrowers' Representative" means WinsLoew and each successor in such
capacity appointed pursuant to SECTION 5.17.
"Borrowing" means the borrowing of Loans under a single Facility and of
a single Type, made by all Lenders on a single date and, in the case of
Eurodollar Rate Loans, having a single Interest Period.
"Borrowing Base" means at any time an amount equal to the lesser of:
(a) the Revolving Credit Facility, minus the Letter of Credit Reserve,
and
(b) an amount equal to
(i) 85% of the face value of Eligible Receivables due and
owing at such time, plus
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(ii) 60% of the lesser of cost determined on a FIFO (or
first-in-first-out) accounting basis and fair market value of Eligible
Inventory at such time, minus
(iii) the Letter of Credit Reserve.
"Borrowing Base Certificate" means a certificate in the form attached
hereto as EXHIBIT C or in such other form as may be acceptable to the Borrowers
and the Administrative Agent.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks in Boston, Massachusetts or Birmingham, Alabama are authorized to
close and, when used with respect to Eurodollar Rate Loans, means any such day
on which dealings are also carried on in the applicable interbank eurodollar
market.
"Business Unit" means the assets constituting the business or a
division or operating unit thereof of any Person.
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets (other
than assets which constitute a Business Unit or Inventory) which are not, in
accordance with GAAP, treated as expense items for such Person in the year made
or incurred or as a prepaid expense applicable to a future year or years.
"Capitalized Lease" means a lease that is required to be capitalized
for financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a Capitalized Lease, and the amount of such Indebtedness shall
be the capitalized amount of such obligations determined in accordance with
GAAP.
"Cash Collateral" means collateral consisting of cash or Cash
Equivalents on which the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders, has a first priority Lien.
"Cash Collateral Account" means a special interest-bearing Deposit
Account consisting of cash maintained at the principal office of the
Administrative Agent and under the sole dominion and control of the
Administrative Agent, for its benefit and for the benefit of the Lenders,
established pursuant to the provisions of SECTION 5.16(A) for purposes set forth
therein.
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"Cash Equivalents" means
(a) Dollars;
(b) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality thereof or any
state having maturities of not more than one year after the date of acquisition;
(c) certificates of deposit and Eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case with any Lender or any domestic commercial bank or U.S. branch of a
foreign commercial bank having capital and surplus in excess of $250 million and
a Xxxxxxxx Bank Watch Rating of "B" or better;
(d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (b) and (c) above
entered into with any financial institution meeting the qualifications specified
in said clause (c); and
(e) commercial paper having the highest rating obtainable from Xxxxx'x
or S&P and in each case maturing within 270 days after the date of acquisition.
"Class" as applied to any Loans, means all Loans outstanding at the
time under the same Facility.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means and includes all of each Borrower's right, title and
interest in and to each of the following, wherever located and whether now or
hereafter existing or now owned or hereafter acquired or arising:
(a) (i) all rights to the payment of money or other forms of
consideration of any kind (whether classified under the UCC as accounts,
contract rights, chattel paper, general intangibles or otherwise) including, but
not limited to, accounts receivable, letters of credit and the right to receive
payment thereunder, chattel paper, tax refunds, insurance proceeds, any rights
under contracts not yet earned by performance and not evidenced by an instrument
or chattel paper, notes, drafts, instruments, documents, acceptances and all
other debts, obligations and liabilities in whatever form from any Person, (ii)
all guaranties, security and Liens securing payment thereof, (iii) all goods,
whether now owned or hereafter acquired, and whether sold, delivered,
undelivered, in transit or returned, which may be represented by, or the sale or
lease of which may have given rise to, any such right to payment or other debt,
obligation or liability, and (iv) all proceeds of any of the foregoing (the
foregoing, collectively, "Receivables"),
(b) (i) all inventory, (ii) all goods intended for sale or lease or for
display or demonstration, (iii) all work-in-process, (iv) all raw materials and
other materials and supplies of every nature and description used or which might
be used in connection with the manufacture, packing, shipping, advertising,
selling, leasing or furnishing of goods or services or otherwise used
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or consumed in the conduct of business, and (v) all documents evidencing and
general intangibles relating to any of the foregoing (the foregoing,
collectively, "Inventory"),
(c) (i) all machinery, apparatus, equipment, motor vehicles, tractors,
trailers, rolling stock, fittings, fixtures and other tangible personal property
(other than Inventory) of every kind and description, (ii) all tangible personal
property (other than Inventory) and fixtures used in such Borrower's business
operations or owned by such Borrower or in which such Borrower has an interest,
and (iii) all parts, accessories and special tools and all increases and
accessions thereto and substitutions and replacements therefor, excluding,
however, any such property that is subject to a lease or Lien permitted to exist
by this Agreement, the terms of which prohibit the creation of the Security
Interest therein, for so long as such prohibition remains in effect (the
foregoing, collectively, "Equipment"),
(d) all general intangibles, choses in action and causes of action and
all other intangible personal property of every kind and nature (other than
Receivables), including, without limitation, Intellectual Property, partnership
and joint venture interests, membership interests and other interests in limited
liability companies, corporate or other business records, inventions, designs,
blueprints, plans, specifications, trade secrets, goodwill, computer software,
customer lists, registrations, licenses, franchises, tax refund claims,
reversions or any rights thereto and any other amounts payable to such Person
from any Benefit Plan, Multiemployer Plan or other employee benefit plan, rights
and claims against carriers and shippers, rights to indemnification, business
interruption insurance and proceeds thereof, property, casualty or any similar
type of insurance and any proceeds thereof, the beneficiary's interest in
proceeds of insurance covering the lives of key employees and any letter of
credit, guarantee, claims, security interest or other security for the payment
by an Account Debtor of any of the Receivables (the foregoing, collectively,
"General Intangibles"),
(e) any demand, time, savings, passbook, money market or like
depository account, and all certificates of deposit, maintained with a bank,
savings and loan association, credit union or like organization, other than an
account evidenced by a certificate of deposit that is an instrument under the
UCC (the foregoing, collectively, "Deposit Accounts"),
(f) all certificated and uncertificated securities, all security
entitlements, all securities accounts, all commodity contracts, all commodity
accounts and all other investment property (the foregoing, collectively,
"Investment Property"),
(g) (i) any investment account maintained by or on behalf of such
Borrower with the Administrative Agent or any Lender or any Affiliate of the
Administrative Agent or any Lender, (ii) any agreement governing such account,
(iii) all cash, money, notes, securities, instruments, goods, accounts,
documents, chattel paper, general intangibles and other property now or
hereafter held by the Administrative Agent or any Lender or any Affiliate of the
Administrative Agent or any Lender on behalf of such Borrower in connection with
such investment account or deposited by such Borrower or on such Borrower's
behalf to such investment account or
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otherwise credited thereto for such Borrower's benefit, or distributable to such
Borrower from such investment account, together with all contracts for the sale
or purchase of the foregoing, (iv) all of such Borrower's right, title and
interest with respect to the deposit, investment, allocation, disposition,
distribution or withdrawal of the foregoing, (v) all of such Borrower's right,
title and interest with respect to the making of amendments, modifications or
additions of or to the terms and conditions under which the investment account
or investments maintained therein is to be maintained by such Borrower, the
Administrative Agent, any Lender or any Affiliate of the Administrative Agent or
any Lender on such Borrower's behalf, and (vi) all of such Borrower's books,
records and receipts pertaining to or confirming any of the foregoing (the
foregoing, collectively, "Investment Accounts"),
(h) all cash or other property deposited with the Administrative Agent
or any Lender or any Affiliate of the Administrative Agent or any Lender or
which the Administrative Agent, for its benefit and for the benefit of the
Lenders, or any Lender or such Affiliate is entitled to retain or otherwise
possess as collateral pursuant to the provisions of this Agreement or any of the
Loan Documents or any agreement relating to any Letter of Credit, including,
without limitation, amounts on deposit in the Cash Collateral Account,
(i) all goods and other property, whether or not delivered, (i) the
sale or lease of which gives or purports to give rise to any Receivable,
including, but not limited to, all merchandise returned or rejected by or
repossessed from customers, or (ii) securing any Receivable, including, without
limitation, all rights as an unpaid vendor or lienor (including, without
limitation, stoppage in transit, replevin and reclamation) with respect to such
goods and other properties,
(j) all mortgages, deeds to secure debt and deeds of trust on real or
personal property, guaranties, leases, security agreements and other agreements
and property which secure or relate to any Receivable or other Collateral or are
acquired for the purpose of securing and enforcing any item thereof,
(k) all documents of title, including bills of lading and warehouse
receipts, policies and certificates of insurance, securities, chattel paper and
other documents and instruments,
(l) all files, correspondence, computer programs, tapes, disks and
related data processing software which contain information identifying or
pertaining to any of the Collateral or any Account Debtor or showing the amounts
thereof or payments thereon or otherwise necessary or helpful in the realization
thereon or the collection thereof, and
(m) any and all products and cash and non-cash proceeds of the
foregoing (including, but not limited to, any claims to any items referred to in
this definition and any claims against third parties for loss of, damage to or
destruction of any or all of the Collateral or for proceeds payable under or
unearned premiums with respect to policies of insurance) in whatever form,
including,
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but not limited to, cash, negotiable instruments and other instruments for the
payment of money, chattel paper, security agreements and other documents.
Notwithstanding anything herein to the contrary, the Collateral shall
not include (i) any agreement with a third party existing on the Effective Date
that prohibits the grant of a Lien on (but not merely the assignment of or of
any interest in) such agreement or any Borrower's rights thereunder without the
consent of such third party or under which a consent to such grant is otherwise
required, which consent has not been obtained, except to the extent rights under
such agreement are covered by Section 9-318 of the UCC, or (ii) any license,
permit or other Governmental Approval that, under the terms and conditions of
such Governmental Approval or under Applicable Law, cannot be subjected to a
Lien in favor of the Administrative Agent without consent which consent has not
been obtained; provided, however, that the Collateral shall include all items
excluded pursuant to clauses (i) or (ii) from and after the date on which the
requisite consent is obtained.
"Commitment" means, as to each Lender, the amount set forth opposite
such Lender's name on ANNEX A hereto, representing such Lender's aggregate
obligation, upon and subject to the terms and conditions of this Agreement
(including the applicable provisions of SECTION 14.1), to make its Proportionate
Share of Loans under the Revolving Credit Facility (including to repay Swingline
Loans), the Term Loan Facilities and the Acquisition Facility and to purchase
participations in Letters of Credit or, from and after the date hereof, as set
forth in the Register representing such Lender's obligation to make its
Proportionate Share of Loans under the Revolving Credit Facility (including to
repay Swingline Loans) and the Acquisition Facility and to purchase
participations in Letters of Credit, and its corresponding interest in Term
Loans and any Acquisition Loans outstanding.
"Commitment Percentage" means, as to any Lender at the time of
determination, the percentage obtained by dividing such Lender's Commitment at
such time by the aggregate Commitments at such time.
"Consolidated Subsidiaries" means, each Borrower (other than WinsLoew)
and any other Subsidiary of WinsLoew, whose accounts are at the time in
question, in accordance with GAAP and pursuant to the written consent of the
Required Lenders consolidated with those of WinsLoew. Such consent may be
withheld in the Lenders' absolute discretion conditioned upon, inter alia, the
execution and delivery of Guaranties, security agreements, mortgages and other
documents required by the Required Lenders in their absolute discretion.
"Contaminant" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, or any constituent of any such substance or waste.
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"Copyrights" means and includes, in each case whether now existing or
hereafter arising, all of each Borrower's right, title and interest in and to
(a) all copyrights, rights and interests in copyrights, works
protectable by copyright, copyright registrations and copyright applications;
(b) all renewals of any of the foregoing;
(c) all income, royalties, damages and payments now or hereafter due
and/or payable under any of the foregoing, including, without limitation,
damages or payments for past or future infringements of any of the foregoing;
(d) the right to xxx for past, present and future infringements of any
of the foregoing; and
(e) all rights corresponding to any of the foregoing throughout the
world.
"Debt" means
(a) Indebtedness for money borrowed,
(b) Indebtedness, whether or not in any such case the same was for
money borrowed,
(i) represented by notes payable, drafts accepted and
reimbursement obligations under letters of credit and similar
instruments that represent extensions of credit,
(ii) constituting obligations evidenced by bonds, debentures,
notes or similar instruments, or
(iii) upon which interest charges are customarily paid or that
was issued or assumed as full or partial payment for property (other
than trade credit that is incurred in the ordinary course of business),
(c) Indebtedness that constitutes a Capitalized Lease Obligation,
(d) obligations in respect of any mandatorily redeemable preferred
capital stock of any Borrower, and
(e) any obligation under a Guarantee of any of the foregoing.
"Default" means any of the events specified in SECTION 13.1 which with
the passage of time or giving of notice or both would constitute an Event of
Default.
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"Default Margin" means 2.0% per annum.
"Deposit Accounts" has the meaning set forth in the definition
"Collateral".
"Dollar" and "$" means freely transferable United States dollars.
"EBIT" means consolidated Net Income of WinsLoew and its Consolidated
Subsidiaries before provision for interest expense and income taxes.
"EBITDA" means EBIT before provision for depreciation and amortization
expense.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Event" means (a) a "reportable event" as defined in Section
4043(c) of ERISA, but excluding any such event as to which the provision for 30
days' notice to the PBGC is waived under applicable regulations, (b) the filing
of a notice of intent to terminate a Benefit Plan subject to Title IV of ERISA
under a distress termination under Section 4041(c) of ERISA or the treatment of
an amendment to such a Benefit Plan as a termination under Section 4041(c) of
ERISA, (c) the institution of proceedings by the PBGC to terminate a Benefit
Plan subject to Title IV of ERISA or the appointment of a trustee to administer
any such Benefit Plan or an event or condition that might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan subject to Section
4042, (d) the imposition of any liability under Title IV of ERISA other than for
PBGC premiums due but not yet payable, (e) the filing of an application for a
minimum funding waiver under Section 412 of the Code, (f) a withdrawal by the
Borrower or any Related Company from a Benefit Plan subject to Section 4063 of
ERISA during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, (g) a Benefit Plan intending to qualify under
Section 401(a) of the Code losing such qualified status, (h) the failure to make
a material required contribution to a Benefit Plan, (i) the Borrower or any
Related Company being in "default" (as defined in Section 4219(c)(5) of ERISA)
with respect to payments to a Multiemployer Plan because of its complete or
partial withdrawal (as described in Section 4203 or 4205 of ERISA) from such
Multiemployer Plan, or (j) the occurrence of a non-exempt prohibited transaction
within the meaning of Section 4975 of the Code or Section 406 of ERISA with
respect to any Benefit Plan.
"Effective Date" means the later of:
(a) the Agreement Date, and
(b) the first date on which all of the conditions set forth in ARTICLE
6 shall have been fulfilled.
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"Effective Interest Rate" means each rate of interest per annum on the
Revolving Credit Loans, the Swingline Loans, the Term Loans and the Acquisition
Loans in effect from time to time pursuant to the provisions of SECTIONS 5.1(A),
(B), (C) and (D).
"Eligible Assignee" means any Lender and any financial institution,
fund, insurance company, trust or other Person that has as one of its
businesses, making or investing in commercial loans.
"Eligible Inventory" means items of Inventory of a Borrower held for
sale in the ordinary course of business of such Borrower which the
Administrative Agent in its reasonable credit judgment determines to meet all of
the following requirements:
(a) such Inventory is owned by a Borrower, is subject to the Security
Interest, which is perfected as to such Inventory, and is subject to no other
Lien whatsoever other than Permitted Liens arising by operation of law;
(b) such Inventory consists of raw materials, finished goods or
work-in-process;
(c) such Inventory is in good condition and meets all standards
applicable to such goods, their use or sale imposed by any governmental agency,
or department or division thereof, having regulatory authority over such
matters;
(d) such Inventory is currently either usable or saleable, at prices
approximating at least cost, in the normal course of the relevant Borrower's
business;
(e) such Inventory is not obsolete, slow moving or repossessed or used
goods taken in trade or returned goods which when added to the aggregate value
of returned goods included in Eligible Inventory at such time would exceed
$500,000;
(f) such Inventory is located within the United States at one of the
locations listed in SCHEDULE 7.1(U) or is in transit to such a location;
(g) such Inventory was not produced in violation of the Fair Labor
Standards Act and subject to the so called "hot goods" provisions contained in
Title 29, Chapter 8, U.S.C. ss. 215(a); and
(h) such Inventory is in the possession and control of a Borrower
(including a common carrier under a xxxx of lading in a Borrower's name) and not
any other third party and if located in a warehouse or other facility leased by
a Borrower, the warehouseman or lessor has delivered to the Administrative Agent
a lien waiver or subordination in such form, if any, as may be requested by the
Administrative Agent.
"Eligible Receivable" means a Receivable of a Borrower that consists of
the unpaid portion of the obligation stated on the invoice issued to an Account
Debtor with respect to
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Inventory sold and shipped to or services performed for such Account Debtor in
the ordinary course of business, net of any credits or rebates owed by such
Borrower to the Account Debtor and that the Administrative Agent, in its
reasonable credit judgment determines to meet all of the following requirements:
(a) such Receivable is owned by a Borrower and represents a complete
bona fide transaction which requires no further act under any circumstances on
the part of such Borrower to make such Receivable payable by the Account Debtor;
(b) such Receivable was invoiced in accordance with the applicable
Sales Terms and is not past due more than 60 days after its original due date;
(c) such Receivable does not arise out of any transaction with any
Subsidiary, Affiliate, director, officer, agent, stockholder or employee of such
Subsidiary or Affiliate of a Borrower or with any creditor, lessor or supplier
of a Borrower;
(d) such Receivable is not owing by an Account Debtor more than 20% of
whose then-existing accounts owing to the Borrowers do not meet the requirements
set forth in CLAUSE (B) above;
(e) if the Account Debtor with respect thereto is located outside of
the United States of America, the goods which gave rise to such Receivable were
shipped after receipt by a Borrower from the Account Debtor of an irrevocable
letter of credit that has been confirmed by a financial institution that meets
the requirements set forth in Subsection (c) of the definition "Cash
Equivalents" or is otherwise acceptable to the Administrative Agent in its
reasonable credit judgment and is in form and substance acceptable to the
Administrative Agent, payable in the full face amount of the face value of the
Receivable in Dollars at a place of payment located within the United States;
(f) the Account Debtor with respect to such Receivable is not located
in a state which imposes conditions on the enforceability of Receivables with
which such Borrower has not complied;
(g) such Receivable is not subject to the Assignment of Claims Act of
1940, as amended from time to time, or any Applicable Law now or hereafter
existing similar in effect thereto, as determined in the sole discretion of the
Administrative Agent, or to any provision prohibiting its assignment or
requiring notice of or consent to such assignment, unless all such required
notices have been given and such consents received such that such Receivable has
been validly assigned to the Administrative Agent;
(h) a Borrower is not in breach of any express or implied
representation or warranty with respect to the goods the sale of which gave rise
to such Receivable;
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(i) the Account Debtor with respect to such Receivable is not insolvent
or the subject of any bankruptcy or insolvency proceedings of any kind or of any
other proceeding or action, threatened or pending, which might, in the
Administrative Agent's sole judgment, have a materially adverse effect on such
Account Debtor;
(j) the goods, the sale of which gave rise to such Receivable, were
shipped or delivered to the Account Debtor on an absolute sale basis and not on
a xxxx-and-hold sale basis, a consignment sale basis, a guaranteed sale basis, a
sale or return basis or on the basis of any other similar understanding, and
such goods have not been returned or rejected;
(k) such Receivable is not owing by an Account Debtor or a group of
Account Debtors who are Affiliates whose then-existing accounts owing to the
Borrowers exceed in face amount 20% of the Borrowers' total Eligible
Receivables;
(l) such Receivable is evidenced by an invoice or other documentation
that conforms to the applicable Sales Terms;
(m) such Receivable is a valid, legally enforceable obligation of the
Account Debtor with respect thereto and is not subject to any present, or
contingent (and no facts exist which are the basis for any future), offset,
deduction or counterclaim, dispute or other defense on the part of such Account
Debtor, provided only an amount equal to the amount of such offset, deduction,
counterclaim dispute or other defense shall be ineligible by reason thereof;
(n) such Receivable is not evidenced by chattel paper or an instrument
of any kind unless such chattel paper or instrument is in the possession of the
Administrative Agent;
(o) such Receivable does not arise from the performance of warranty
services or out of account service charges by a Borrower or other fees for the
time value of money; and
(p) such Receivable is subject to the Security Interest, which is
perfected as to such Receivable, and is subject to no other Lien whatsoever
other than Permitted Liens arising by operation of law and the goods giving rise
to such Receivable were not, at the time of the sale thereof, subject to any
Lien other than the Security Interest or other Permitted Liens arising by
operation of law.
"Environmental Compliance Reserve" means any reserve for the cost of
Remedial Action by a Borrower determined by the Administrative Agent from time
to time in its reasonable discretion based upon the reports delivered pursuant
to SECTION 10.9(B) and such other advice, analysis and engineering studies as it
deems appropriate.
"Environmental Laws" means all federal, state, local and foreign laws
from time to time in effect relating to pollution or protection of the
environment, including laws relating to emissions, discharges, Releases or
threatened Releases of pollutants, Contaminants, chemicals, or industrial,
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toxic or 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, removal, transport, or handling of pollutants, Contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes, and any and
all regulations, notices or demand letters issued, entered, promulgated or
approved thereunder; such laws and regulations include but are not limited to
the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 et seq., as
amended; the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., as amended; the Toxic Substances Control Act,
15 U.S.C. ss. 2601 et seq., as amended; the Clean Air Act, 46 U.S.C. ss. 7401 et
seq., as amended; and state and federal lien and environmental cleanup programs.
"Environmental Lien" means a Lien in favor of any governmental entity
for (a) any liability under Environmental Laws or (b) damages arising from, or
costs incurred by such governmental entity in response to, a Release or
threatened Release of Contaminant into the environment.
"Equipment" has the meaning set forth in the definition "Collateral".
"Eurodollar Rate" means, with respect to any Eurodollar Rate Loan for
the Interest Period applicable thereto, a simple per annum interest rate
determined pursuant to the following formula, rounded upwards, if necessary to
the next higher 1/16 of 1%:
Eurodollar Rate = Interbank Offered Rate
--------------------------------------
1 - Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Acquisition Loan" means a Eurodollar Rate Loan
outstanding under the Acquisition Facility.
"Eurodollar Rate Loan" means any Loan (other than a Swingline Loan)
bearing interest at a rate determined with reference to the Eurodollar Rate,
including any such Loans continued as or converted into a Eurodollar Rate Loan
on the same day by the Lenders for the same Interest Period.
"Eurodollar Rate Revolving Credit Loan" means a Eurodollar Rate Loan
outstanding under the Revolving Credit Facility.
"Eurodollar Rate Term Loan" means a Eurodollar Rate Loan outstanding
under a Term Loan Facility.
"Eurodollar Rate Term Loan A" means a Eurodollar Rate Loan outstanding
under the Term Loan A Facility.
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"Eurodollar Rate Term Loan B" means a Eurodollar Rate Loan outstanding
under the Term Loan B Facility.
"Eurodollar Rate Term Loan C" means a Eurodollar Rate Loan outstanding
under the Term Loan C Facility.
"Eurodollar Reserve Percentage" applicable to any Interest Period means
the rate (expressed as a decimal) applicable to United States commercial banks
during such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System for determining the maximum
reserve requirement (including, without limitation, any basic, supplemental,
emergency or marginal reserve requirement) of such banks with respect to
"Eurocurrency liabilities" as that term is defined under such regulations.
Without limiting the effect of the foregoing, the Eurodollar Reserve Percentage
shall include any other reserves required to be maintained by such banks by
reason of any regulatory change with respect to (i) any category of liabilities
that includes deposits by reference to which the "Interbank Offered Rate" is to
be determined as provided in the definition "Interbank Offered Rate" or (ii) any
category of extensions of credit or other assets that includes Eurodollar Rate
Loans.
"Event of Default" means any of the events specified in SECTION 13.1,
PROVIDED that any requirement for notice or lapse of time or any other condition
has been satisfied.
"Excess Cash Flow" means, for any Fiscal Year, EBITDA, minus increases
(or plus decreases) in working capital, minus cash taxes paid, minus Capital
Expenditures (other than Financed Capex), minus scheduled and any additional
actual principal repayments of Debt and payments of interest on all Debt, in
each case for such Fiscal Year, determined in accordance with GAAP on a
consolidated basis for WinsLoew and its Consolidated Subsidiaries.
"Facility" means each of the Acquisition Facility, the Revolving Credit
Facility, the Swingline Facility, and each Term Loan Facility.
"Facility Percentage" means as to any Lender at the time of
determination, the percentage obtained by dividing such Lender's Commitment with
respect to a specified Facility or Class of Loans or, if the Commitments under
such Facility have terminated, such Lender's Loans outstanding under a specified
Facility by the aggregate Commitment or Loans under the same Facility at such
time.
"Federal Funds Effective Rate" means, 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
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received by BankBoston from three federal funds brokers of recognized standing
selected by BankBoston.
"Financed Capex" means Capital Expenditures funded with the proceeds of
Permitted Purchase Money Debt (excluding Loans) and those represented by
Capitalized Lease Obligations.
"Financial Officer" means the chief financial officer, Treasurer or
Controller of WinsLoew.
"Financing Statements" means any and all Uniform Commercial Code
financing statements, in form and substance satisfactory to the Administrative
Agent, executed and delivered by a Borrower or a Guarantor to the Administrative
Agent, naming the Administrative Agent, for the benefit of the Lenders, as
secured party and such Borrower or such Guarantor as debtor, in connection with
this Agreement or a Guarantor Security Agreement.
"Fiscal Quarter" means each approximately three-month accounting period
of WinsLoew ending as to the first such periods of each Fiscal Year, on the last
Friday of each March, June, and September and as to the fourth such period of
each Fiscal Year, ending on December 31.
"Fiscal Year" means the fiscal year of WinsLoew, commencing on January
1 of each calendar year and ending on December 31 of the same calendar year and
when preceded or followed by the designation of a calendar year means the fiscal
year of WinsLoew ending on December 31 of such designated calendar year.
"Fixed Charge Coverage Ratio" means, as of the last day of any Fiscal
Quarter, the result obtained by dividing (a) (i) EBITDA minus (ii) the sum of
cash income taxes paid, Capital Expenditures (other than Financed Capex and the
WPI Purchases) and Restricted Distributions other than those deducted in
computing EBITDA, in each case of WinsLoew and its Consolidated Subsidiaries
determined on a consolidated basis for the period of four consecutive Fiscal
Quarters or other specified measurement period ending on such day, by (b) the
sum of interest expense (other than deferred debt issuance costs, bond discount
or original issue discount attributable to the Senior Subordinated Notes and the
related warrants, generally included as interest expense under GAAP) plus
scheduled principal repayments of Debt (including scheduled payments of
Capitalized Lease Obligations), in each case of WinsLoew and its Consolidated
Subsidiaries determined on a consolidated basis for the same period.
"Funded Debt" means, at any time, the aggregate outstanding principal
amount of all Debt of WinsLoew and its Consolidated Subsidiaries, on a
consolidated basis, at such time.
"GAAP" means generally accepted accounting principles consistently
applied and maintained throughout the period indicated and, when used with
reference to WinsLoew, the Borrowers or any Subsidiary, consistent with the
prior financial practice of WinsLoew, as reflected in the financial statements
referred to in SECTION 7.1(N); PROVIDED, HOWEVER, that, in the event that
changes shall be mandated by the Financial Accounting Standards Board or any
similar
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accounting authority of comparable standing, or shall be recommended by the
Borrowers' independent public accountants, such changes shall be included in
GAAP as applicable to the Borrowers only from and after such date as the
Borrowers, the Required Lenders and the Administrative Agent shall have amended
this Agreement to the extent necessary to reflect any such changes in the
financial covenants set forth in ARTICLE 12.
"General Intangibles" has the meaning set forth in the definition
"Collateral".
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
governmental bodies, whether federal, state, local or foreign national or
provincial and all agencies thereof.
"Government Acts" has the meaning set forth in SECTION 3.8(A)(II).
"Guarantor" means any Person that guarantees the Secured Obligations,
including any Subsidiary that becomes a Guarantor in accordance with SECTION 6.2
or 10.11.
"Guarantor Security Agreement" means a security agreement in
substantially the form of EXHIBIT I hereto or in such other form as may be
satisfactory to the Administrative Agent, executed by a Guarantor in favor of
the Administrative Agent.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any obligation
of another Person shall mean and include
(a) a guaranty (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), directly or indirectly, in any
manner, of any part or all of such obligation of such other Person, and
(b) an agreement, direct or indirect, contingent or otherwise, and
whether or not constituting a guaranty, the practical effect of which is to
assure the payment or performance (or payment of damages in the event of
nonperformance) of any part or all of such obligation of such other Person
whether by
(i) the purchase of securities or obligations,
(ii) the purchase, sale or lease (as lessee or lessor) of
property or the purchase or sale of services primarily for the purpose
of enabling the obligor with respect to such obligation to make any
payment or performance (or payment of damages in the event of
nonperformance) of or on account of any part or all of such obligation,
or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner
investing in the obligor with respect to such obligation,
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(iv) repayment of amounts drawn down by beneficiaries of
letters of credit, or
(v) the supplying of funds to or investing in a Person on
account of all or any part of such Person's obligation under a Guaranty
of any obligation or indemnifying or holding harmless, in any way, such
Person against any part or all of such obligation.
"Guaranty Agreement" means an agreement of Guaranty, substantially in
the form of EXHIBIT H hereto or in such other form as may be satisfactory to the
Administrative Agent, executed by a Guarantor in favor of the Administrative
Agent.
"Guaranty Collateral" means "Collateral" as such term is defined in any
Guarantor Security Agreement in effect.
"IPO" means the initial public offering of voting common stock of
WinsLoew, underwritten by a reputable securities underwriter in compliance with
Applicable Law, the net proceeds of which to WinsLoew are equal to or greater
than $15,000,000.
"Indebtedness" of any Person means, without duplication, all
Liabilities of such Person, and to the extent not otherwise included in
Liabilities, the following:
(a) all obligations for money borrowed or for the deferred purchase
price of property or services or in respect of drafts accepted or similar
instruments or reimbursement obligations under letters of credit,
(b) all obligations (including, during the noncancellable term of any
lease in the nature of a title retention agreement, all future payment
obligations under such lease discounted to their present value in accordance
with GAAP) secured by any Lien to which any property or asset owned or held by
such Person is subject, whether or not the obligation secured thereby shall have
been assumed by such Person,
(c) all obligations of other Persons which such Person has Guaranteed,
including, but not limited to, all obligations of such Person consisting of
recourse liability with respect to accounts receivable sold or otherwise
disposed of by such Person, and
(d) in the case of the Borrowers (without duplication) all Secured
Obligations and all obligations in respect of the Senior Subordinated Notes and
the Subordinated Debt.
"Initial Loans" means the Revolving Credit Loans and the Term Loans
made to the Borrowers on the Effective Date pursuant to the Initial Notice of
Borrowing.
"Initial Notice of Borrowing" means the Notice of Borrowing given by
the Borrowers pursuant to SECTION 6.1(C)(19), which shall also specify the
method of disbursement.
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"Installment Payment Date" means (i) as applied to the Term Loans the
last day of each March, June, September and December, commencing on Xxxxx 00,
0000, (xx) as applied to the Acquisition Loans, the last day of each March,
June, September and December, commencing on March 31, 2002 and (iii) as applied
to any other payment hereunder, the last day of each March, June, September and
December, commencing on September 30, 1999.
"Intellectual Property" means all of the Borrowers' now owned and
hereafter arising or acquired: Patents, Copyrights and Trademarks, including,
without limitation, the Intellectual Property set forth on SCHEDULE 7.1(X)
hereto.
"Interbank Offered Rate" applicable to any Eurodollar Rate Loan for any
Interest Period means the rate of interest determined by the Administrative
Agent to be the prevailing rate per annum at which deposits in U.S. dollars are
offered to the Administrative Agent by first-class banks in the interbank
Eurodollar market in which it regularly participates at or about 10:00 a.m. two
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Eurodollar Rate Loan to which
such Interest Period is to apply for a period of time approximately equal to
such Interest Period.
"Interest Coverage Ratio" means for any specified measurement period,
the ratio of (i) EBITDA for such period minus consolidated Capital Expenditures
(other than Financed Capex and the WPI Purchases) of WinsLoew and its
Consolidated Subsidiaries during such period to (ii) consolidated interest
expense of WinsLoew and its Consolidated Subsidiaries for such period (other
than deferred debt issuance costs, bond discount or original issue discount
attributable to the Senior Subordinated Notes and the related warrants,
generally included as interest expense under GAAP).
"Interest Payment Date" means, as to Base Rate Loans, the first day of
each calendar month commencing on September 1, 1999 and continuing thereafter
until the Secured Obligations have been irrevocably paid in full and, as to
Eurodollar Rate Loans, the last day of the applicable Interest Period and, if
such Interest Period is longer than the three months, at intervals of three
months after the first day thereof and, as to all Loans, the date such Loan is
due (whether at maturity, by reason of acceleration or otherwise).
"Interest Period" means with respect to each Eurodollar Rate Loan, the
period commencing on the date of the making or continuation of or conversion to
such Eurodollar Rate Loan and ending one, two, three or six months thereafter,
as the Borrowers may elect in the applicable Notice of Borrowing or Notice of
Conversion or Continuation; PROVIDED, that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall, subject to the provisions of CLAUSE (III)
below, be extended to the next succeeding Business Day unless such
Business Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;
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(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to CLAUSE (III) below, end on the last Business
Day of a calendar month;
(iii) any Interest Period that would otherwise end after the
Termination Date shall end on the Termination Date;
(iv) no Interest Period applicable to a Eurodollar Rate Term
Loan or Eurodollar Rate Acquisition Loan may end after the next
applicable Installment Payment Date, unless the aggregate principal
amount of Base Rate Term Loans (or Base Rate Acquisition Loans) and
Eurodollar Rate Term Loans (or Eurodollar Rate Acquisition Loans)
having Interest Periods ending prior to such applicable Installment
Payment Date is at least equal to the amount of the principal repayment
due hereunder on such Installment Payment Date; and
(v) notwithstanding CLAUSE (III) above, no Interest Period
shall have a duration of less than one month and if any applicable
Interest Period would be for a shorter period, such Interest Period
shall not be available hereunder.
"Interest Rate Protection Agreement" shall mean an interest rate swap,
cap or collar agreement or similar arrangement between any Borrower and a Lender
providing for the transfer or mitigation of interest risks either generally or
under specific contingencies.
"Inventory" has the meaning set forth in the definition "Collateral".
"Investment" means, with respect to any Person:
(a) the acquisition or ownership by such Person of any share of capital
stock, membership interest, partnership interest, evidence of Indebtedness or
other security or equity interest issued by any other Person,
(b) any loan, advance or extension of credit to, or contribution to the
capital of, any other Person, excluding advances to employees in the ordinary
course of business for business expenses,
(c) any Guaranty of the obligations of any other Person,
(d) any other investment (other than the Acquisition of a Business
Unit) in any other Person, and
(e) any commitment or option to make any of the investments listed in
CLAUSES (A) through (D) above if, in the case of an option, the consideration
therefor exceeds $100.
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"Investment Account" has the meaning set forth in the definition
"Collateral".
"Investment Property" has the meaning set forth in the definition
"Collateral".
"IRS" means the Internal Revenue Service.
"Lender" means at any time any Person party to this Agreement at such
time as a "Lender", including any such Person becoming a party hereto pursuant
to the provisions of ARTICLE 14, and "Lenders" means at any time all of the
Persons party to this Agreement at such time as "Lenders", including any such
Persons becoming parties hereto pursuant to the provisions of ARTICLE 14.
"Letter of Credit" means any Letter of Credit issued by BankBoston for
the account of a Borrower pursuant to ARTICLE 3.
"Letter of Credit Amount" means, with respect to any Letter of Credit,
the aggregate maximum amount at any time available for drawing (assuming all
conditions to drawing are satisfied) under such Letter of Credit.
"Letter of Credit Facility" means a subfacility of the Revolving Credit
Facility providing for the issuance of Letters of Credit described in ARTICLE 3
up to an aggregate amount of Letter of Credit Obligations at any one time
outstanding not to exceed the amount of $10,000,000.
"Letter of Credit Obligations" means, at any time, the sum of (a) the
Reimbursement Obligations of the Borrowers at such time, plus (b) the aggregate
Letter of Credit Amount of Letters of Credit outstanding at such time, plus (c)
the aggregate Letter of Credit Amount of Letters of Credit the issuance of which
has been authorized by the Administrative Agent and BankBoston pursuant to
SECTION 3.4(B) but that have not yet been issued, in each case as determined by
the Administrative Agent.
"Letter of Credit Reserve" means, at any time, the aggregate Letter of
Credit Obligations at such time, other than Letter of Credit Obligations that
are fully secured by Cash Collateral.
"Liabilities" of any Person means all items (except for items of
capital stock, additional paid-in capital or retained earnings, or of general
contingency or deferred tax reserves) which in accordance with GAAP would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person as at the date as of which liabilities are to be
determined.
"Lien" as applied to the property of any Person means:
(a) any mortgage, deed to secure debt, deed of trust, lien, pledge,
charge, lease constituting a Capitalized Lease Obligation, conditional sale or
other title retention agreement, or
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other security interest, security title or encumbrance of any kind in respect of
any property of such Person, or upon the income or profits therefrom,
(b) any arrangement, express or implied, under which any property of
such Person is transferred, sequestered or otherwise identified for the purpose
of subjecting the same to the payment of Indebtedness or performance of any
other obligation in priority to the payment of the general, unsecured creditors
of such Person,
(c) any Indebtedness which is unpaid more than 30 days after the same
shall have become due and payable and which if unpaid might by law (including,
but not limited to, bankruptcy and insolvency laws), or otherwise, be given any
priority whatsoever over the claims of general unsecured creditors of such
Person,
(d) the filing of, or any agreement to give, any financing statement
under the Uniform Commercial Code or its equivalent in any jurisdiction,
excluding informational financing statements relating to property leased by
WinsLoew or any Subsidiary, and
(e) in the case of Real Estate, reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances.
"Loan" means any Revolving Credit Loan, Swingline Loan, Term Loan or
Acquisition Loan, as well as all such loans collectively, as the context
requires.
"Loan Account" and "Loan Accounts" have the meanings set forth in
SECTION 5.5.
"Loan Documents" means collectively this Agreement, the Notes, the
Security Documents and each other instrument, agreement or document executed by
a Borrower, a Guarantor or any Affiliate or Subsidiary of a Borrower or a
Guarantor in connection with this Agreement whether prior to, on or after the
Effective Date and each other instrument, agreement or document referred to
herein or contemplated hereby.
"Loan Party" means each of the Borrowers and each Guarantor.
"Loan Year" means each period of 12 consecutive months commencing on
the Effective Date and on each Anniversary thereof.
"Loewenstein" means Loewenstein, Inc., a Florida corporation and a
Wholly Owned Subsidiary of WinsLoew.
"Make-Whole Amount" has the meaning set forth in SECTION 5.9(B).
"Margin Stock" means "margin stock" as defined in Section 221.1(h) of
Regulation U.
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"Materially Adverse Effect" means any act, omission, situation,
circumstance, event or undertaking which could reasonably be expected to have,
singly or in any combination with one or more other acts, omissions, situations,
circumstances, events or undertakings, a materially adverse effect upon (a) the
business, assets, properties, liabilities, condition (financial or otherwise),
results of operations or business prospects of WinsLoew and its Subsidiaries
taken as a whole, (b) the value of the whole or any material part of the
Collateral, or the enforceability or priority of the Security Interest, (c) the
respective ability of any Borrower or any of its Subsidiaries to perform any
obligations under this Agreement or any other Loan Document to which it is a
party, or (d) the legality, validity, binding effect, enforceability or
admissibility into evidence of any Loan Document or the rights or remedies of
the Administrative Agent, the Co-Agents or the Lenders under or in connection
with any Loan Document.
"Maximum Rate" has the meaning set forth in SECTION 5.1(F).
"Xxxxx'x" means Xxxxx'x Investors Service, Inc.
"Mortgages" means and includes any and all of the mortgages, deeds of
trust, deeds to secure debt, assignments and other instruments executed and
delivered by a Borrower to or for the benefit of the Administrative Agent by
which the Administrative Agent, on behalf of the Lenders, acquires a Lien on
Real Estate owned by a Borrower.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which a Borrower or a Related Company is required to
contribute or has contributed within the immediately preceding six years.
"Net Amount" means, with respect to any Investments made by any Person,
the gross amount of all such Investments minus the aggregate amount of all cash
received and the fair value, at the time of receipt by such Person, of all
property received as payments of principal or premiums, returns of capital,
liquidating dividends or distributions, proceeds of sale or other dispositions
with respect to such Investments.
"Net Income" or "Net Loss" means, as applied to any Person for any
accounting period, the net income or net loss, as the case may be, of such
Person for the period in question after giving effect to deduction of or
provision for all operating expenses, all taxes and reserves (including reserves
for deferred taxes) and all other proper deductions, all determined in
accordance with GAAP, provided that there shall be excluded:
(a) the net income or net loss of any Person accrued prior to the date
it becomes a Subsidiary of, or is merged into or consolidated with, the Person
whose Net Income is being determined or a Subsidiary of such Person,
(b) the net income or net loss of any Person in which the Person whose
Net Income is being determined or any Subsidiary of such Person has an ownership
interest, except, in the case
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of net income, to the extent that any such income has actually been received by
such Person or such Subsidiary in the form of cash dividends or similar
distributions,
(c) any restoration of any contingency reserve other than in the
ordinary course of such Person's business, except to the extent that provision
for such reserve was made out of income during such period,
(d) any net gains or losses on the sale or other disposition, not in
the ordinary course of business, of Investments, Business Units and other
capital assets, provided that there shall also be excluded any related charges
for taxes thereon,
(e) any net gain arising from the collection of the proceeds of any
insurance policy,
(f) any write-up of any asset, and
(g) any other extraordinary item.
"Net Outstandings" of any Lender means, at any time, the sum of (a) all
amounts paid by such Lender (other than pursuant to SECTION 15.7) to the
Administrative Agent in respect of Loans by such Lender under the Revolving
Credit Facility, minus (b) all amounts received by the Administrative Agent and
paid by the Administrative Agent to such Lender for application, pursuant to
this Agreement, to reduction of the outstanding principal balance of the Loans
of such Lender outstanding under the Revolving Credit Facility.
"Net Proceeds" means proceeds received by a Borrower or any of its
Subsidiaries in cash from any Asset Disposition (including, without limitation,
payments under notes or other debt securities received in connection with any
Asset Disposition), net of: (a) the transaction costs of such sale, lease,
transfer or other disposition; (b) any tax liability arising from such
transaction; and (c) amounts applied to repayment of Indebtedness (other than
the Secured Obligations) secured by a Lien on the asset or property disposed of.
"Note" means any of the Revolving Credit Notes, the Swingline Note, the
Term Notes and Acquisition Notes and "Notes" means more than one such Note.
"Notice of Borrowing" means a written notice, or telephonic notice
followed by a confirming written notice in the form attached hereto as EXHIBIT
E-1, E-2 or E-3, requesting a Borrowing of, respectively, (i) either a Base Rate
Revolving Credit Loan or a Eurodollar Rate Revolving Credit Loan, (ii) a
Swingline Eurodollar Rate Loan or a Base Rate Swingline Loan or (iii) on or
before the Acquisition Facility Termination Date, an Acquisition Loan, which is
given by telex or facsimile transmission in accordance with the applicable
provisions of SECTION 2.2, SECTION 2A.2 or SECTION 4A.2, as the case may be, and
which specifies (x) the amount of the requested Borrowing, (y) the date of the
requested Borrowing, and (z) if the requested Borrowing is of a Eurodollar Rate
Loan, the duration of the applicable Interest Period.
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"Notice of Conversion or Continuation" has the meaning specified in
SECTION 5.13.
"Old WinsLoew" means WinsLoew Furniture, Inc., a Florida corporation,
prior to the WinsLoew Merger.
"Operating Lease" means any lease (other than a lease constituting a
Capitalized Lease Obligation) of real or personal property.
"Overadvance" means at any time the amount by which the principal
amount of Revolving Credit Loans outstanding at such time exceeds the amount
determined pursuant to clause (b) of the definition "Borrowing Base".
"Overadvance Condition" means and is deemed to exist any time the
principal amount of Revolving Credit Loans outstanding exceeds the amount
determined pursuant to clause (b) of the definition "Borrowing Base" at such
time.
"Overadvance Loan" means a Revolving Credit Loan made at the time an
Overadvance Condition exists or which results in an Overadvance Condition.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Patent Security Agreement" means each Security Agreement (Patents)
made by a Borrower to the Administrative Agent.
"Patents" means and includes, in each case whether now existing or
hereafter arising, all of the Borrowers' right, title and interest in and to
(i) any and all patents and patent applications,
(ii) inventions and improvements described and claimed
therein,
(iii) reissues, divisions, continuations, renewals, extensions
and continuations-in-part thereof,
(iv) income, royalties, damages, claims and payments now or
hereafter due and/or payable under and with respect thereto, including,
without limitation, damages and payments for past and future
infringements thereof,
(v) rights to xxx for past, present and future infringements
thereof, and
(vi) all rights corresponding to any of the foregoing
throughout the world.
"Pending Loan" has the meaning specified in SECTION 5.15(B).
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"Permitted Acquisition" means an Acquisition by a Borrower of
substantially all of the capital stock or the assets of another Person, in an
arm's length transaction and in accordance with the provisions of SECTION 6.2
(without regard to whether a related Acquisition Loan is made).
"Permitted Investments" means Investments of any Borrower in:
(a) Cash Equivalents,
(b) sales of inventory on credit in the ordinary course of business,
(c) in any other Loan Party and of any Subsidiary in any Loan Party,
(d) any Subsidiary that is not a Loan Party in an aggregate amount for
all Borrowers not to exceed $500,000,
(e) shares of capital stock, evidence of Indebtedness or other security
acquired by such Borrower in consideration for or as evidence of past-due or
restructured Receivables in an aggregate face amount of such Receivables at any
time not to exceed $300,000,
(f) non-cash consideration received in connection with any Asset
Disposition otherwise permitted hereby,
(g) Guaranties permitted pursuant to SECTION 12.3,
(h) those items described on SCHEDULE 1.1B - PERMITTED INVESTMENTS,
(i) loans and advances (i) to employees of any Borrower or their
respective Subsidiaries for moving, entertainment, travel and other similar
expenses in the ordinary course of business not to exceed $250,000 in the
aggregate at any time outstanding or (ii) to such employees and to independent
sales representatives of any Borrower or its Subsidiaries secured by the pledge
of shares of WinsLoew capital stock made to finance the purchase by such
employees (or representatives) of such stock, not to exceed $1,000,000 in the
aggregate at any time outstanding, and
(j) Permitted Acquisitions.
"Permitted Liens" means:
(a) Liens securing taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA)
or the claims of materialmen, repairmen, mechanics, carriers, warehousemen or
landlords for labor, materials, supplies or rentals incurred in the ordinary
course of business, but in all cases only if payment shall not at the time be
required to be made in accordance with SECTION 10.6,
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(b) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or under
payment or performance bonds,
(c) Liens to which the priority of any Mortgage is subject as evidenced
by the related mortgagee title insurance policy accepted by the Administrative
Agent or constituting encumbrances in the nature of zoning restrictions,
condemnations, easements, and rights or restrictions of record on the use of
real property, which do not materially detract from the value of such property
or materially impair the use thereof in the business of a Borrower,
(d) Liens consisting of deposits to secure liability to insurance
carriers and the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business of a Borrower (and not in connection with incurring Debt), PROVIDED,
that in each case the obligation secured by such deposit is not overdue or is
being contested in good faith by appropriate proceedings during the pendency of
which the execution of the applicable Lien is effectively stayed and that the
aggregate amount of such deposits does not exceed at any time $500,000,
(e) Liens of or resulting from any judgment or award that would not
result in an Event of Default under SECTION 13.1(K), the time for appeal or
petition for rehearing of which shall not have expired, or in respect of which a
Borrower or the affected Subsidiary shall at any time in good faith be
prosecuting an appeal or proceeding for review and in respect of which a stay of
execution pending such appeal or proceeding for review is in effect,
(f) Purchase Money Liens securing Permitted Purchase Money Debt,
(g) short term leases of Real Estate to third parties that (i) are
subordinate to the Mortgage (if any) encumbering such Real Estate and (ii) do
not interfere with the lessor's conduct of business on such Real Estate,
(h) Liens shown on SCHEDULE 1.1C - PERMITTED LIENS,
(i) Liens of the Administrative Agent, for the benefit of the Lenders,
arising under this Agreement and the other Loan Documents, and
(j) Liens in existence immediately prior to the Effective Date that are
satisfied in full and released (or assigned to and accepted by the
Administrative Agent) on the Effective Date or promptly thereafter as a result
of the application of the proceeds of the Initial Loans or cash on hand.
"Permitted Purchase Money Debt" means Purchase Money Debt of a Borrower
incurred after the Agreement Date
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(a) which is secured by a Purchase Money Lien,
(b) the aggregate principal amount of which does not exceed an amount
equal to 100% of the lesser of
(i) the cost (including the principal amount of such Debt,
whether or not assumed) of the tangible personal property (other than
Inventory) subject to such Lien, and
(ii) the fair value of such tangible personal property (other
than Inventory) at the time of its acquisition, and
(c) which, when aggregated with the principal amount of all other such
Debt and Capitalized Lease Obligations of the Borrower at the time outstanding,
does not exceed $3,000,000.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or unincorporated organization, or a government
or any agency or political subdivision thereof.
"Pompeii" means Pompeii Furniture Co., Inc., a Florida corporation and
a Wholly Owned Subsidiary of Winston.
"Pompeii-Mexico" means Industrial Mueblera Pompeii de Mexico, S.A. de
C.V., a corporation organized under the laws of Mexico and a Wholly Owned
Subsidiary of Winston.
"Pro Forma" means the pro forma consolidated balance sheet of WinsLoew
and its Consolidated Subsidiaries as at the Effective Date, immediately after
giving effect to the transactions contemplated by this Agreement, the WinsLoew
Merger Documents, the Senior Note Indenture and the Acquisition of Pompeii.
"Projections" means the forecasted (a) consolidated balance sheets, (b)
consolidated income statements and (c) consolidated cash flow statements of
WinsLoew and its Consolidated Subsidiaries for the period beginning January 1,
1999 through December 31, 2003, prepared on a monthly basis for Fiscal Year 1999
and on an annual basis for each Fiscal Year thereafter, delivered to the
Administrative Agent and dated June 25, 1999, together with appropriate
supporting detail and a statement of underlying assumptions.
"Proportionate Share" or "Ratable Share" or "Ratable" (and with
corollary meaning, "Ratably") means, as to a Lender, such Lender's share of an
amount in Dollars or other property at the time of determination equal to (i)
such Lender's Facility Percentage in respect of a specified Facility, or (ii) if
no Facility is specified (x) the percentage obtained by dividing the sum of such
Lender's Revolving Credit and unused Acquisition Facility Commitments plus the
principal amount of Term Loans and Acquisition Loans owing to such Lender by the
sum of the total
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Revolving Credit and unused Acquisition Facility Commitments of all Lenders plus
the total principal amount of all Term Loans and Acquisition Loans then owing to
all Lenders, (y) if the Commitments are terminated, the percentage of the total
principal amount of Loans outstanding at such time obtained by dividing the
principal amount of the Loans then owing to such Lender by the total principal
amount of all Loans then owing to all Lenders, or (z) if the Commitments are
terminated and no Loans are outstanding, the percentage of the total Letter of
Credit Obligations then outstanding obtained by dividing such Lender's
participation, if any, in such Letter of Credit Obligations by the total Letter
of Credit Obligations then outstanding.
"Purchase Money Debt" means Debt created to finance the payment of all
or any part of the purchase price (not in excess of the fair market value
thereof) of any tangible personal property (other than Inventory) and incurred
at the time of or within 30 days prior to or after the acquisition of such
tangible asset.
"Purchase Money Lien" means any Lien securing Purchase Money Debt, but
only if such Lien shall at all times be confined solely to the property (other
than Inventory) the purchase price of which was financed through the incurrence
of the Purchase Money Debt secured by such Lien.
"Quoted Rate" has the meaning set forth in SECTION 2A.2.
"Real Estate" means all of the Borrowers' now or hereafter owned or
leased estates in real property, including, without limitation, all fees,
leaseholds and future interests, together with all of the Borrowers' now or
hereafter owned or leased interests in the improvements and emblements thereon,
the fixtures attached thereto and the easements appurtenant thereto, including,
without limitation the real property described on SCHEDULE 7.1(Y).
"Receivables" has the meaning set forth in the definition "Collateral".
"Register" has the meaning specified in SECTION 14.1(D).
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of August 27, 1999 to which WinsLoew and the initial purchasers of the
Senior Subordinated Notes are parties.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Reimbursement Agreement" means, with respect to a Letter of Credit,
such form of application therefor and form of reimbursement agreement therefor
(whether in a single document or several documents) as BankBoston may employ in
the ordinary course of business for its own account, with such modifications
thereto as may be agreed upon by BankBoston and the relevant Borrower, provided
that such application and agreement and any modifications thereto are not
inconsistent with the terms of this Agreement.
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"Reimbursement Obligations" means the reimbursement or repayment
obligations of the relevant Borrower to BankBoston pursuant to SECTION 3.6 or
pursuant to a Reimbursement Agreement with respect to amounts that have been
drawn under Letters of Credit.
"Related Company" means any (i) corporation which is a member of the
same controlled group of corporations (within the meaning of Section 414(b) of
the Code) as any Borrower; (ii) partnership or other trade or business (whether
or not incorporated) under common control (within the meaning of Section 414(c)
of the Code) with any Borrower; or (iii) member of the same affiliated service
group (within the meaning of Section 414(m) of the Code) as any Borrower, any
corporation described in CLAUSE (I) above or any partnership, trade or business
described in CLAUSE (II) above.
"Release" means release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment or into or out of any property, including the movement of
Contaminants through or in the air, soil, surface water or groundwater.
"Remedial Action" means actions required to (i) clean up, remove, treat
or in any other way address Contaminants in the indoor or outdoor environment;
(ii) prevent the Release or threat of Release or minimize the further Release of
Contaminants so they do not migrate or endanger or threaten to endanger public
health or welfare or the indoor or outdoor environment; or (iii) perform
pre-remedial studies and investigations and post-remedial monitoring and care.
"Required Lenders" means, at any time, any combination of Lenders
whose combined Proportionate Shares at such time are greater than 51%.
"Reserves" means any Letter of Credit Reserve or Environmental
Compliance Reserve.
"Restricted Distribution" by any Person means (i) the retirement,
redemption, purchase, or other acquisition or retirement for value of any
capital stock or other equity securities (except equity securities acquired on
the conversion thereof into other equity securities of such Person) or equity
interests or partnership or membership interests issued by such Person, (ii) the
declaration or payment of any dividend or distribution in cash or property on or
with respect to any such securities (other than dividends payable solely in
shares of its capital stock), equity interests or partnership or membership
interests, excluding, however, any such dividend, distribution or payment to any
Borrower by any Subsidiary of such Borrower, (iii) any loan or advance by such
Person to, or other investment by such Person in, the holder of any of such
securities, equity interests or partnership or membership interests and any
forgiveness or cancellation of such loan or advance, and (iv) any other payment
by such Person in respect of such securities, equity interests or partnership or
membership interests.
"Restricted Payment" means (i) any redemption or prepayment or other
retirement, prior to the stated maturity thereof or prior to the due date of any
regularly scheduled installment or
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amortization payment with respect thereto, of any Debt (other than the Loans) or
of any Subordinated Debt, (ii) the payment by any Person of the principal amount
of or interest on any Indebtedness (other than trade debt) owing to an Affiliate
of such Person or to any Affiliate of any such Affiliate and (iii) the payment
of any management, consulting or similar fee by any Person to any Affiliate of
such Person.
"Revolving Credit Facility" means the credit facility providing for
Revolving Credit Loans based upon the Borrowing Base and described in SECTION
2.1 up to an aggregate principal amount at any one time outstanding not to
exceed $40,000,000 or such lesser or greater amount as shall be agreed upon from
time to time in writing by the Administrative Agent, the Lenders and the
Borrowers.
"Revolving Credit Lender" means each Lender having a Commitment under
the Revolving Credit Facility or, if the Commitments are terminated, having
outstanding Revolving Credit Loans.
"Revolving Credit Loans" means Loans made to the Borrowers pursuant to
SECTION 2.1.
"Revolving Credit Note" means each Revolving Credit Note made by the
Borrowers payable to the order of a Lender evidencing the joint and several
obligation of the Borrowers to pay the aggregate unpaid principal amount of the
Loans made to them by such Lender under the Revolving Credit Facility (and any
promissory note or notes that may be issued from time to time in substitution,
renewal, extension, replacement or exchange therefor whether payable to such
Lender or to a different Lender in connection with a Person becoming a Lender
after the Effective Date or otherwise) substantially in the form of EXHIBIT A-1
hereto, with all blanks properly completed, either as originally executed or as
the same may from time to time be supplemented, modified, amended, renewed,
extended or refinanced.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies.
"Sales Terms" means as to each Borrower, the terms and conditions on
which Inventory is sold by such Borrower in the ordinary course of its business
(including the terms and conditions of any recurring seasonal or other
promotional sales programs and other sales terms regularly offered by such
Borrower to any of its customers), as set forth in such Borrower's sales manuals
or otherwise in writing delivered to and accepted by the Administrative Agent
prior to the Agreement Date or, if applicable, prior to the date on which such
Borrower becomes a party to this Agreement as a "Borrower."
"Schedule of Inventory" means a schedule delivered by the Borrowers to
the Administrative Agent pursuant to the provisions of SECTION 9.11(B).
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"Schedule of Receivables" means a schedule delivered by the Borrowers
to the Administrative Agent pursuant to the provisions of SECTION 9.11(A).
"Secured Obligations" means, in each case whether now in existence or
hereafter arising,
(a) the principal of, and interest and premium, if any, on, the Loans,
(b) the Reimbursement Obligations and all other obligations of the
Borrowers to BankBoston, the Administrative Agent or any Lender arising in
connection with the issuance of Letters of Credit,
(c) all obligations of the Borrowers (or any of them) to any Lender or
any Affiliate of a Lender under any Interest Rate Protection Agreement, and
(d) all indebtedness, liabilities, obligations, covenants and duties of
the Borrowers to BankBoston, as the issuer of a Letter of Credit, or the
Administrative Agent, the Co-Agents or to the Lenders or to any Affiliate of the
Administrative Agent or any Lender of every kind, nature and description arising
under or in respect of this Agreement, the Notes or any of the other Loan
Documents, whether direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note, and whether or not for the payment of money, including
without limitation, fees required to be paid pursuant to ARTICLE 5 and expenses
required to be paid or reimbursed pursuant to SECTION 16.2.
"Security Documents" means each of the following:
(a) the Mortgages,
(b) the Financing Statements,
(c) the WinsLoew Pledge Agreement,
(d) the Winston Pledge Agreement,
(e) the Trademark Security Agreement,
(f) the Patent Security Agreement,
(g) the Guaranty Agreement,
(h) each Guarantor Security Agreement, and
(i) each other writing executed and delivered by a Borrower or any
other Person securing the Secured Obligations,
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"Security Interest" means the Liens of the Administrative Agent, for
the benefit of itself as Administrative Agent and the Lenders, on and in the
Collateral and the Real Estate effected hereby or by any of the Security
Documents or pursuant to the terms hereof or thereof.
"Senior Subordinated Notes" means up to $105,000,000 aggregate
principal amount at maturity of 12 3/4% per annum unsecured Senior Subordinated
Notes due 2007 outstanding under the Senior Note Indenture (including any
"Exchange Notes" as defined in said Indenture).
"Senior Note Indenture " means the Indenture dated as of August 24,
1999 entered into by WinsLoew Escrow Corp., a Florida corporation and prior to
its merger with and into TFC, a Wholly Owned Subsidiary of TFC, and American
Stock Transfer & Trust Company, Trustee, the obligations of the Company under
and as defined in which Indenture will be assumed by WinsLoew in the WinsLoew
Merger.
"Senior Subordinated Note Documents" means the Senior Subordinated
Notes, the Senior Note Indenture and the Registration Rights Agreement.
"Subordinated Debt" means the Senior Subordinated Notes and any other
Debt of a Borrower in an amount, and that is subordinated to the Secured
Obligations on terms and conditions, acceptable to Required Lenders.
"Subsidiary" when used to determine the relationship of a Person to
another Person, means a Person of which an aggregate of 50% or more of the stock
of any class or classes or 50% or more of other ownership interests is owned of
record or beneficially by such other Person, or by one or more Subsidiaries of
such other Person, or by such other Person and one or more Subsidiaries of such
Person, (i) if the holders of such stock, or other ownership interests, (A) are
ordinarily, in the absence of contingencies, entitled to vote for the election
of a majority of the directors (or other individuals performing similar
functions) of such Person, even though the right so to vote has been suspended
by the happening of such a contingency, or (B) are entitled, as such holders, to
vote for the election of a majority of the directors (or individuals performing
similar functions) of such Person, whether or not the right so to vote exists by
reason of the happening of a contingency, or (ii) in the case of such other
ownership interests, if such ownership interests constitute a majority voting
interest. When used without other designation of ownership, "Subsidiary" means a
Subsidiary of WinsLoew.
"Supporting Letter of Credit" has the meaning set forth in SECTION 3.9.
"Swingline Eurodollar Rate" has the meaning set forth in SECTION 2A.2.
"Swingline Facility" means an amount equal to $5,000,000.
"Swingline Lender" means BankBoston and each Lender that succeeds to
such capacity with the consent of the Administrative Agent.
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"Swingline Loan" means each advance by the Swingline Lender to the
Borrowers pursuant to SECTION 2A.1.
"Swingline Loan Maturity" means as to each Swingline Loan, the date
such Loan is due as specified by the Borrowers in the related Swingline Loan
Request, which shall be a Business Day not more than seven days after the
borrowing date of such Swingline Loan.
"Swingline Loan Request" has the meaning set forth in SECTION 2A.2.
"Swingline Note" means the Swingline Note made by the Borrowers payable
to the order of the Swingline Lender evidencing the joint and several obligation
of the Borrowers to pay the aggregate unpaid principal amount of the Swingline
Loans made to them by the Swingline Lender under the Swingline Facility (and any
promissory note that may be issued from time to time in substitution, renewal,
extension, replacement or exchange therefor) substantially in the form of
EXHIBIT A-2 hereto, with all blanks properly completed, either as originally
executed or as the same may from time to time be supplemented, modified,
amended, renewed, extended or refinanced.
"TFC" means Trivest Furniture Corporation, a Florida corporation.
"Target EBITDA" has the meaning set forth in SECTION 6.2(E).
"Term Loan" means, as the context requires, one or all of the Term Loan
A, Term Loan B, and Term Loan C, as well as the aggregate Loans outstanding
under the Term Loan Facilities and refers to both Eurodollar Rate Term Loans and
the Base Rate Term Loans.
"Term Loan A" means the aggregate Loans outstanding under the Term Loan
A Facility and refers to both Eurodollar Rate Term Loan A and the Base Rate Term
Loan A.
"Term Loan A Facility" means the credit facility described in SECTION
4.1(A) providing for Term Loan A in the principal amount of $25,000,000.
"Term Loan B" means the aggregate Loans outstanding under the Term Loan
B Facility and refers to both Eurodollar Rate Term Loan B and the Base Rate Term
Loan B.
"Term Loan B Facility" means the credit facility described in SECTION
4.1(B) providing for Term Loan B in the principal amount of $62,500,000.
"Term Loan C" means the aggregate Loans outstanding under the Term Loan
C Facility and refers to both Eurodollar Rate Term Loan C and Base Rate Term
Loan C.
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"Term Loan C Facility" means the credit facility described in SECTION
4.1(C) providing for Term Loan C in the principal amount of $7,500,000.
"Term Loan Facility" means the Term Loan A Facility, the Term Loan B
Facility or the Term Loan C Facility, and "Term Loan Facilities" means all such
facilities.
"Term Loan Lender" means each Lender holding any outstanding Term Loan
and "Term Loan A Lender," "Term Loan B Lender," and "Term Loan C Lender" each
means a Term Loan Lender under the designated Term Loan Facility.
"Term Note" means any of the Term Notes A, the Term Notes B and the
Term Notes C, and "Term Notes" means more than one such Note.
"Term Note A" means each Term Note A made by the Borrowers payable to
the order of a Lender evidencing the joint and several obligation of the
Borrowers to pay the aggregate unpaid principal amount of the Loans made to them
by such Lender under the Term Loan A Facility (and any promissory note or notes
that may be issued from time to time in substitution, renewal, extension,
replacement or exchange therefor whether payable to such Lender or to a
different Lender in connection with a Person becoming a Lender after the
Effective Date or otherwise) substantially in the form of EXHIBIT B-1 hereto,
with all blanks properly completed, either as originally executed or as the same
may from time to time be supplemented, modified, amended, renewed, extended or
refinanced.
"Term Note B" means each Term Note B made by the Borrowers payable to
the order of a Lender evidencing the joint and several obligation of the
Borrowers to pay the aggregate unpaid principal amount of the Loans made to them
by such Lender under the Term Loan B Facility (and any promissory note or notes
that may be issued from time to time in substitution, renewal, extension,
replacement or exchange therefor whether payable to such Lender or to a
different Lender in connection with a Person becoming a Lender after the
Effective Date or otherwise) substantially in the form of EXHIBIT B-2 hereto,
with all blanks properly completed, either as originally executed or as the same
may from time to time be supplemented, modified, amended, renewed, extended or
refinanced.
"Term Note C" means each Term Note C made by the Borrowers payable to
the order of a Lender evidencing the joint and several obligation of the
Borrowers to pay the aggregate unpaid principal amount of the Loans made to them
by such Lender under the Term Loan C Facility (and any promissory note or notes
that may be issued from time to time in substitution, renewal, extension,
replacement or exchange therefor whether payable to such Lender or to a
different Lender in connection with a Person becoming a Lender after the
Effective Date or otherwise) substantially in the form of EXHIBIT B-3 hereto,
with all blanks properly completed, either as originally executed or as the same
may from time to time be supplemented, modified, amended, renewed, extended or
refinanced.
"Termination Date" means December 31, 2004, or such earlier date as all
Secured Obligations shall have been irrevocably paid in full and the Revolving
Credit Facility and the
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Acquisition Facility shall have been terminated, or such later date as to which
the same may be extended pursuant to the provisions of SECTION 2.5.
"Texacraft" means Texacraft, Inc., a Texas corporation and a Wholly
Owned Subsidiary of Winston.
"Total Facilities" means the aggregate of the Revolving Credit
Facility, the Term Loan Facilities and the Acquisition Facility.
"Total Funded Debt to EBITDA Ratio" means as of the last day of a
Fiscal Quarter, the ratio of (i) the outstanding principal amount of Funded Debt
on such last day to (ii) EBITDA, for the period of four consecutive Fiscal
Quarters ended on such day. For purposes of computing the Total Funded Debt to
EBITDA Ratio, the WinsLoew Merger and the Acquisition by Winston of Pompeii and
Pompeii-Mexico (which was completed on July 30, 1999), and the related capital
contributions and borrowings shall be deemed to have occurred on the first day
of the fourth Fiscal Quarter preceding the Effective Date, and, subject to the
Administrative Agent's consent, any other subsequent Permitted Acquisition by
any Borrower and the capital contributions and the borrowings in connection with
consummation thereof shall be deemed to have occurred on the first day of the
fourth Fiscal Quarter preceding the date of such Permitted Acquisition or such
later date as the Administrative Agent and WinsLoew may agree.
"Trademark Security Agreement" means each Security Agreement
(Trademarks), dated on or about the Effective Date, made by a Borrower to the
Administrative Agent.
"Trademarks" means and includes in each case whether now existing or
hereafter arising, all of the Borrowers' right, title and interest in and to
(a) trademarks (including service marks), trade names and trade styles
and the registrations and applications for registration thereof and the goodwill
of the business symbolized by the trademarks,
(b) licenses of the foregoing, whether as licensee or licensor,
(c) renewals thereof,
(d) income, royalties, damages and payments now or hereafter due and/or
payable with respect thereto, including, without limitation, damages, claims and
payments for past and future infringements thereof,
(e) rights to xxx for past, present and future infringements thereof,
including the right to settle suits involving claims and demands for royalties
owing, and
(f) all rights corresponding to any of the foregoing throughout the
world.
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"Trivest Investors" means those investors set forth on SCHEDULE 1.1D.
"Trivest Management Agreement" means the Management Agreement dated as
of a date on or about the Effective Date between WinsLoew and Trivest II, Inc.,
a Florida corporation, as the same may hereafter be amended, extended, renewed,
restated and replaced in accordance with the terms thereof and the applicable
provisions of this Agreement.
"Trivest Management Fees" means all compensation and expense
reimbursement amounts payable from time to time by WinsLoew to Trivest II, Inc.,
a Florida corporation, pursuant to the Trivest Management Agreement.
"Tropic Craft" means Tropic Craft, Inc., a Florida corporation and a
Wholly Owned Subsidiary of Winston.
"Type" when used in respect of any Loan or Borrowing, shall refer to
the rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined.
"Unfunded Vested Accrued Benefits" means with respect to any Benefit
Plan subject to Title IV of the ERISA , amount at any time by which
(a) the present value of all vested nonforfeitable benefits under such
Benefit Plan exceeds
(b) the fair market value of all Benefit Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Benefit Plan.
"Uniform Commercial Code" or "UCC" means the Uniform Commercial Code as
in effect in the relevant jurisdiction.
"WPI" means Winston Properties, Inc., an Alabama corporation and a
Wholly Owned Subsidiary of Winston.
"WPI Purchases" has the meaning set forth in SECTION 12.5.
"Wholly Owned Subsidiary" when used to determine the relationship of a
Subsidiary to a Person means a Subsidiary all of the issued and outstanding
shares (other than directors' qualifying shares) of the capital stock of which
shall at the time be owned by such Person or one or more of such Person's Wholly
Owned Subsidiaries or by such Person and one or more of such Person's Wholly
Owned Subsidiaries.
"WinsLoew" means WinsLoew Furniture, Inc., a Florida corporation and
the surviving corporation of the WinsLoew Merger.
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"WinsLoew Merger" means the merger of TFC with and into Old WinsLoew as
contemplated by the WinsLoew Merger Agreement and the other WinsLoew Merger
Documents.
"WinsLoew Merger Agreement" means the Second Amended and Restated
Agreement and Plan of Merger dated as of May 4, 1999 between TFC and Old
WinsLoew, as the same may be amended up to and through the Effective Date with
the consent of the Administrative Agent.
"WinsLoew Merger Contribution" means total equity contributions of at
least $78,000,000, including, without limitation, equity contributions up to
$12,000,000 in the form of "rollover" of shares of WinsLoew, the proceeds of
which are applied to acquire shares of Old WinsLoew, made by Persons who are
shareholders of Old WinsLoew on the Effective Date.
"WinsLoew Merger Documents" means, collectively, the WinsLoew Merger
Agreement and all other documents, agreements and certificates executed in
connection with the consummation of the transactions contemplated by the
WinsLoew Merger Agreement, including, without limitation, those listed on
SCHEDULE 1.1A - WINSLOEW MERGER DOCUMENTS attached hereto.
"WinsLoew Pledge Agreement" means the Stock Pledge Agreement in form
and substance satisfactory to the Administrative Agent executed by WinsLoew as
of the Effective Date in favor of the Administrative Agent, pursuant to which
WinsLoew pledges all of the issued and outstanding shares of the capital stock
of Loewenstein and Winston as security for the Secured Obligations.
"Winston" means Winston Furniture Company of Alabama, Inc., an Alabama
corporation and a Wholly Owned Subsidiary of WinsLoew.
"Winston Pledge Agreement" means the Stock Pledge Agreement in form and
substance satisfactory to the Administrative Agent executed by Winston as of the
Effective Date in favor of the Administrative Agent, pursuant to which Winston
pledges all of the issued and outstanding shares of the capital stock of Tropic
Craft, Texacraft, WPI and Pompeii and 65% of the issued and outstanding shares
of the capital stock of Pompeii-Mexico as security for the Secured Obligations.
"Year 2000 Compliant" means, as to any computer application used by
WinsLoew or any Subsidiary of WinsLoew, or any supplier, vendor or customer of
WinsLoew or any of its Subsidiaries, that such computer application will not be
negatively impacted by the Year 2000 Problem and that such computer application
is reasonably expected on a timely basis to be able to properly recognize and
perform date-sensitive functions for all dates prior to, on and after January 1,
2000.
"Year 2000 Problem" means the risk that computer applications used by
WinsLoew or any of its Subsidiaries, or any supplier, vendor or customer of
WinsLoew or any of its Subsidiaries
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with which WinsLoew's or such Subsidiaries' data processing systems communicate
electronically may be unable to properly recognize and perform date-sensitive
functions involving dates prior to, on or after January 1, 2000.
SECTION 1.2 General Interpretive Rules.
(a) All terms of an accounting nature not specifically defined herein
shall have the meaning ascribed thereto by GAAP.
(b) The terms accounts, chattel paper, contract rights, documents,
equipment, instruments, general intangibles and inventory, as and when used in
this Agreement or the Security Documents, shall have the meanings given those
terms in the Uniform Commercial Code.
(c) Unless otherwise specified, the words "hereof," "herein,"
"hereunder" and words of similar import, when used in this Agreement, refer to
this Agreement as a whole and not to any particular provision, section or
subsection of this Agreement.
(d) Wherever from the context it appears appropriate, each term stated
in either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Words denoting individuals include
corporations and vice versa.
(e) References to any legislation or statute or code, or to any
provisions of any legislation or statute or code, shall include any modification
or reenactment of, or any legislative, statutory or code provision substituted
for, such legislation, statute or code or provision thereof.
(f) References to any document or agreement (including this Agreement)
shall include references to such document or agreement as amended, novated,
supplemented, modified or replaced from time to time, so long as and to the
extent that such amendment, novation, supplement, modification or replacement is
either not prohibited by the terms of this Agreement or is consented to by the
Required Lenders and the Administrative Agent or otherwise as required by any
Loan Document.
(g) Except where specifically restricted in a Loan Document, references
to any Person include its successor or permitted substitutes and assigns
permitted or not prohibited under such Loan Document.
(h) References to the time of day are to the time of day in the city in
which the Administrative Agent's Office is located.
(i) The terms "payment", "prepayment", "distribution" and similar terms
used in the definitions of "Restricted Distribution" and "Restricted Payment"
and in SECTION 12.6, shall include payment by means of the transfer of funds or
of property and, in the event of a transfer of
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property, the payment shall be deemed to be in an amount equal to the greater of
the fair market value and the book value of the property at the time of the
transfer.
(j) Titles of Articles and Sections in this Agreement are for
convenience only, do not constitute part of this Agreement and neither limit nor
amplify the provisions of this Agreement, and all references in this Agreement
to Articles, Sections, subsections, paragraphs, clauses, subclauses, Schedules,
Annexes or Exhibits shall refer to the corresponding Article, Section,
subsection, paragraph, clause or subclause of, or Schedule, Annex or Exhibit
attached to, this Agreement, unless specific reference is made to the articles,
sections or other subdivisions or divisions of, or to schedules or exhibits to,
another document or instrument.
(k) Whenever from the context it appears appropriate, the term "Loan",
including such terms as used as part of a defined term including the term
"Loan", shall mean and include a Loan made by all Lenders to the Borrowers as
well as a Lender's Proportionate Share of any Loan.
(l) All references to defined terms, unless otherwise specified herein,
shall mean such terms as defined in this Agreement.
(m) Whenever the phrase "to the knowledge of the Borrower(s)" or words
of similar import relating to the knowledge of a Borrower are used herein, such
phrase shall mean and refer to (i) the actual knowledge of the President or
chief financial officer of WinsLoew or (ii) the knowledge that such officers
would have obtained if they had engaged in good faith in the diligent
performance of their duties, including the making of such reasonable specific
inquiries as may be necessary of the appropriate persons in a good faith attempt
to ascertain the accuracy of the matter to which such phrase relates.
(n) The Security Interest, any other Lien referred to in this Agreement
or in any other Loan Document as having been created in favor of the Agent, any
agreement entered into by the Agent pursuant to this Agreement or any other Loan
Document, any payments made by or to or funds received by the Agent pursuant to
or as contemplated by this Agreement or any other Loan Document, and any other
act taken or omitted by the Agent shall, unless expressly provided otherwise,
exist, be created, be entered into, be made or received, taken or omitted, for
the benefit or account of the Agent and the Lenders.
SECTION 1.3 Exhibits, Annexes and Schedules. All Exhibits, Annexes and
Schedules attached hereto are by reference made a part hereof.
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ARTICLE 2
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, each Revolving Credit Lender agrees, severally, but not
jointly, to make Revolving Credit Loans under the Revolving Credit Facility to
the Borrowers from time to time from the Effective Date to but not including the
Termination Date, as requested or deemed requested by the Borrowers'
Representative in accordance with the terms of SECTION 2.2, in amounts equal to
such Lender's Proportionate Share of each Revolving Credit Loan requested or
deemed requested hereunder up to an aggregate amount at any one time outstanding
equal to such Lender's Proportionate Share of the Borrowing Base; PROVIDED,
HOWEVER, that the aggregate principal amount of all outstanding Revolving Credit
Loans (after giving effect to the Loans requested) shall not exceed the
Revolving Credit Facility minus the Letter of Credit Reserve minus the aggregate
outstanding principal amount of any Swingline Loans. It is expressly understood
and agreed that the Lenders may and at present intend to use the Borrowing Base
as a maximum ceiling on Loans made to the Borrowers under the Revolving Credit
Facility; PROVIDED, HOWEVER, that it is agreed that should the aggregate
outstanding amount of such Loans exceed the ceiling so determined or any other
limitation set forth in this Agreement, such Loans shall nevertheless constitute
Secured Obligations and, as such, shall be entitled to all benefits thereof and
security therefor. The principal amount of any Loans made under the Revolving
Credit Facility which is repaid may be reborrowed by the Borrowers, subject to
the terms and conditions of this Agreement, in accordance with the terms of this
SECTION 2.1. The Administrative Agent's and each Revolving Credit Lender's books
and records reflecting the date and the amount of each Loan made under the
Revolving Credit Facility and each repayment of principal thereof shall
constitute prima facie evidence of the accuracy of the information contained
therein, subject to the provisions of SECTION 5.7.
SECTION 2.2 Borrowing. (a) Requests for Borrowings under the Revolving
Credit Facility (other than the Initial Loans which shall be the subject of the
Initial Notice of Borrowing referred to in SECTION 6.1(c)) shall be made by
delivery or deemed delivery of a Notice of Borrowing, given or deemed given, by
the Borrowers' Representative, in the manner specified in SECTION 5.3.
(b) Disbursement of Loans. The Administrative Agent shall notify the
Revolving Credit Lenders promptly (and in any event not later than the Business
Day prior to the proposed Borrowing date) of each Notice of Borrowing given or
deemed given. Not later than 1:30 p.m. on the proposed Borrowing date, each
Revolving Credit Lender will make available to the Administrative Agent, for the
account of the Borrowers, at the Administrative Agent's Office in funds
immediately available to the Administrative Agent, such Lender's Proportionate
Share of such Revolving Credit Loan. The Borrowers hereby irrevocably authorize
the Administrative
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Agent to disburse the proceeds of each Borrowing requested, or deemed to be
requested, pursuant to this SECTION 2.2 by wire transfer or other appropriate
means to such account of a Borrower as may be agreed upon by the Borrowers'
Representative and the Administrative Agent from time to time or, in the case of
the proceeds of each Borrowing deemed requested under SECTION 5.8(A), by way of
direct payment of the relevant Secured Obligation.
SECTION 2.3 Repayment of Revolving Credit Loans. The Revolving Credit
Loans will be repaid as follows:
(a) The outstanding principal amount of all the Revolving Credit Loans
is due and payable, and shall be repaid by the Borrowers in full, as their joint
and several obligation, not later than the Termination Date; and
(b) Subject to the provisions of SECTION 5.8, if at any time the
aggregate outstanding unpaid principal amount of the Revolving Credit Loans
exceeds the Borrowing Base in effect at such time minus the aggregate
outstanding principal amount of all Swingline Loans, the Borrowers shall (unless
a payment is made by the Borrowers pursuant to SECTION 2A.3 or SECTION 2A.4 that
eliminates such excess) immediately repay the Revolving Credit Loans in an
amount sufficient to reduce the aggregate unpaid principal amount of such
Revolving Credit Loans by an amount equal to such excess, together with accrued
and unpaid interest on the amount so repaid to the date of repayment.
Repayments pursuant to SECTION 2.3(B) shall be applied first to the Base Rate
Revolving Credit Loans and then to Eurodollar Rate Revolving Credit Loans.
SECTION 2.4 Revolving Credit Note. Each Revolving Credit Lender's
Revolving Credit Loans and the joint and several obligation of the Borrowers to
repay such Revolving Credit Loans shall also be evidenced by a Revolving Credit
Note payable to the order of such Lender. Each Revolving Credit Note shall be
dated the Effective Date (or later "effective date" under any Assignment and
Acceptance) and be duly and validly executed and delivered by the Borrowers.
SECTION 2.5 Extension of Revolving Credit Facility. Upon the request of
the Borrowers, the Lenders may, in their sole discretion, agree to extend the
Termination Date by an instrument in writing signed by the Administrative Agent
and all Lenders.
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ARTICLE 2A
SWINGLINE FACILITY
SECTION 2A.1 Swingline Loans. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, the Swingline Lender shall make Swingline Loans to the
Borrowers from time to time, from and after the Effective Date until the
Termination Date, as requested by the Borrowers in accordance with the terms of
SECTION 2A.2, up to an aggregate principal amount of Swingline Loans at any time
outstanding not to exceed the lesser of (i) the Swingline Facility and (ii) the
Borrowing Base MINUS the aggregate principal amount of outstanding Revolving
Credit Loans. The Swingline Loans will be deemed to be usage of the Revolving
Credit Facility for the purpose of calculating availability pursuant to SECTION
2.1, but will not reduce the Swingline Lender's obligation to lend its
Proportionate Share of the remaining unused Revolving Credit Facility.
SECTION 2A.2 Making Swingline Loans. Upon request of the Borrowers'
Representative, the Swingline Lender shall promptly notify the Borrowers'
Representative and the Administrative Agent of the quoted rate of interest
applicable on any Business Day to a proposed Swingline Loan (such rate of
interest, a "Quoted Rate") and of the rate that would be applicable to a
Eurodollar Rate Revolving Credit Loan made on the same day for an Interest
Period of one month (the "Swingline Eurodollar Rate"). Requests for Swingline
Loans shall be made not later than 4:00 p.m. on the Business Day of the proposed
Swingline Loan by delivery by telex, telegraph, telecopy or telephone of a
request therefor by Borrowers' Representative to the Administrative Agent. Each
such notice (a "Swingline Loan Request") shall specify (i) the proposed
borrowing date, (ii) the amount of Swingline Loan requested, (iii) the
applicable Quoted Rate or Eurodollar Rate, as selected by the Borrowers, and
(iv) the applicable Swingline Loan Maturity, and shall be immediately followed
by a written confirmation thereof by the Borrowers' Representative in
substantially the form of EXHIBIT E-2 hereto, PROVIDED, that if such written
confirmation differs in any material respect from the action taken by the
Administrative Agent, the records of the Administrative Agent shall control
absent manifest error. Not later than 6:00 p.m. on the date specified for any
Swingline Loan, the Swingline Lender shall make available such Swingline Loan in
immediately available funds to the Administrative Agent at the Administrative
Agent's Office. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in ARTICLE 6, the
Administrative Agent will, and the Borrowers hereby irrevocably authorize the
Administrative Agent to, disburse the proceeds of each Swingline Loan by making
such funds available to the Borrowers by wire transfer to such account of a
Borrower as the Borrowers and the Administrative Agent may agree from time to
time.
SECTION 2A.3 Repayment of Swingline Loans. The principal amount of each
Swingline Loan shall be repaid by the Borrowers in full on the applicable
Swingline Loan Maturity, together with accrued and unpaid interest thereto such
date.
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SECTION 2A.4 Prepayment. If at any time the aggregate unpaid principal
amount of Swingline Loans outstanding to the Borrowers from the Swingline Lender
exceeds the amount set forth in the first sentence of SECTION 2A.1, the
Borrowers shall pay to the Administrative Agent for the account of the Swingline
Lender on demand by the Administrative Agent, an amount equal to such excess,
together with accrued and unpaid interest on the principal amount prepaid to the
date of prepayment. Notwithstanding the foregoing, no such prepayment shall be
required if the Borrowers shall have made an appropriate prepayment in
accordance with the provisions of SECTION 2.3(B).
SECTION 2A.5 Swingline Note. The Swingline Loans made by the Swingline
Lender and the obligation of the Borrowers to repay such Loans shall be
evidenced by, and be repayable in accordance with the terms of, a single
Swingline Note, made by the Borrowers payable to the order of the Swingline
Lender. The Swingline Note shall be dated the Effective Date and be duly and
validly executed and delivered by the Borrowers.
SECTION 2A.6 Settlement with Other Lenders. All payments of principal,
interest and any other amount with respect to such Swingline Loan shall be
payable to and received by the Administrative Agent for the account of the
Swingline Lender. Upon demand by the Swingline Lender, with notice thereof to
the Administrative Agent, and notwithstanding the occurrence and continuation at
the time of such demand of any Default or Event of Default, each Revolving
Credit Lender shall make a Base Rate Revolving Credit Loan in the amount of its
Revolving Credit Facility Percentage of the outstanding Swingline Loans for the
account of the Borrowers, the proceeds of which shall be paid over to the
Swingline Lender and applied to the repayment of such Swingline Loans. Any
payments received by the Administrative Agent prior to such repayment by the
Revolving Credit Lenders which in accordance with the terms of this Agreement
are to be applied to the reduction of the outstanding principal balance of
Swingline Loans shall be paid over to the Swingline Lender and so applied.
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ARTICLE 3
LETTER OF CREDIT FACILITY
SECTION 3.1 Agreement to Issue. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, BankBoston agrees to issue for the account of any
Borrower one or more Letters of Credit in accordance with this ARTICLE 3, from
time to time during the period commencing on the Effective Date and ending on
the Termination Date.
SECTION 3.2 Amounts. BankBoston shall not have any obligation to issue
any Letter of Credit at any time:
(a) if, after giving effect to the issuance of the requested Letter of
Credit, (i) the aggregate Letter of Credit Obligations of the Borrowers would
exceed the Letter of Credit Facility then in effect or (ii) the aggregate
principal amount of the Revolving Credit Loans and Swingline Loans outstanding
would exceed the Borrowing Base (after reduction for the Letter of Credit
Reserve in respect of such Letter of Credit) or (iii) if no Revolving Credit
Loans or Swingline Loans are outstanding, the aggregate Letter of Credit
Obligations would exceed the Borrowing Base; or
(b) which has a term longer than one calendar year or an expiration
date after the last Business Day that is more than 10 days prior to the
Termination Date.
SECTION 3.3 Conditions. The obligation of BankBoston to issue any
Letter of Credit is subject to the satisfaction of (a) the applicable conditions
precedent contained in ARTICLE 6 and (b) the following additional conditions
precedent in a manner satisfactory to the Administrative Agent and BankBoston:
(i) the Borrowers, through the Borrowers' Representative,
shall have delivered to BankBoston and the Administrative Agent at such
times and in such manner as BankBoston or the Administrative Agent may
prescribe an application in form and substance satisfactory to
BankBoston and the Administrative Agent for the issuance of the Letter
of Credit, a Reimbursement Agreement and such other documents as may be
required pursuant to the terms thereof, and the form and terms of the
proposed Letter of Credit shall be satisfactory to BankBoston and the
Administrative Agent; and
(ii) as of the date of issuance, no order of any court,
arbitrator or governmental authority having jurisdiction or authority
over BankBoston shall purport by its terms to enjoin or restrain banks
generally from issuing letters of credit of the type and in the amount
of the proposed Letter of Credit, and no law, rule or regulation
applicable to
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banks generally and no request or directive (whether or not having the
force of law) from any governmental authority with jurisdiction over
banks generally shall prohibit, or request that BankBoston refrain
from, the issuance of letters of credit generally or the issuance of
such Letter of Credit.
SECTION 3.4 Issuance of Letters of Credit.
(a) Request for Issuance. A Borrower, through the Borrowers'
Representative, shall give BankBoston and the Administrative Agent written
notice of such Borrower's request for the issuance of a Letter of Credit no
later than two Business Days prior to the proposed date of issuance of the
Letter of Credit. Such notice shall be irrevocable and shall specify the
original face amount of the Letter of Credit requested, the effective date
(which date shall be a Business Day) of issuance of such requested Letter of
Credit, whether such Letter of Credit may be drawn in a single or in multiple
draws, the date on which such requested Letter of Credit is to expire (which
date shall be a Business Day earlier than the tenth day prior to the Termination
Date), the purpose for which such Letter of Credit is to be issued and the
beneficiary of the requested Letter of Credit. The Borrowers' Representative
shall attach to such notice the form of the Letter of Credit that it requests to
be issued.
(b) Responsibilities of the Administrative Agent; Issuance. The
Administrative Agent shall determine, as of the Business Day immediately
preceding the requested effective date of issuance of the Letter of Credit set
forth in the notice from the Borrower's Representative pursuant to SECTION
3.4(A), the amount of the unused Letter of Credit Facility. If (i) the form of
the Letter of Credit delivered by a Borrower to the Administrative Agent is
acceptable to BankBoston and the Administrative Agent in their sole, reasonable
discretion, (ii) the undrawn face amount of the requested Letter of Credit is
less than or equal to the unused Letter of Credit Facility and (iii) the
Administrative Agent has received a certificate from the Borrowers'
Representative stating that the applicable conditions set forth in ARTICLE 6 and
SECTION 3.3 have been satisfied, then BankBoston will cause the Letter of Credit
to be issued.
(c) Notice of Issuance. Promptly after the issuance of any Letter of
Credit, BankBoston shall give the Administrative Agent written or facsimile
notice, or telephonic notice confirmed promptly thereafter in writing, of the
issuance of such Letter of Credit, and the Administrative Agent shall give each
Lender written or facsimile notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of such Letter of Credit.
(d) No Extension or Amendment. No Letter of Credit shall be extended or
amended unless the requirements of this SECTION 3.4 are met as though a new
Letter of Credit were being requested and issued.
SECTION 3.5 Duties of BankBoston. Any action taken or omitted to be
taken by BankBoston under or in connection with any Letter of Credit, if taken
or omitted in the absence of gross negligence or willful misconduct, shall not
result in any liability of BankBoston to any
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Lender or relieve any Lender of its obligations hereunder to BankBoston. In
determining whether to pay under any Letter of Credit, BankBoston shall have no
obligation to any Lender other than to confirm that any documents required to be
delivered under such Letter of Credit in connection with such drawing have been
presented and appear on their face to comply with the requirements of such
Letter of Credit.
SECTION 3.6 Payment of Reimbursement Obligations.
(a) Payment to Issuer. Notwithstanding any provisions to the contrary
in any Reimbursement Agreement, the Borrowers agree, jointly and severally, to
reimburse BankBoston for any drawings (whether partial or full) under each
Letter of Credit issued by BankBoston and agree to pay to BankBoston the amount
of all other Reimbursement Obligations and other amounts payable to BankBoston
under or in connection with such Letter of Credit immediately when due,
irrespective of any claim, set-off, defense or other right which any Borrower
may have at any time against BankBoston or any other Person.
(b) Recovery or Avoidance of Payments. In the event any payment by or
on behalf of the Borrowers with respect to any Letter of Credit (or any
Reimbursement Obligation relating thereto) received by BankBoston, or by the
Administrative Agent and distributed by the Administrative Agent to the Lenders
on account of their respective participations therein, is thereafter set aside,
avoided or recovered from BankBoston or the Administrative Agent in connection
with any receivership, liquidation or bankruptcy proceeding, the Lenders shall,
upon demand by the Administrative Agent, pay to the Administrative Agent, for
the account of the Administrative Agent or BankBoston, their respective
Proportionate Shares of such amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Administrative Agent upon
the amount required to be repaid by it.
SECTION 3.7 Participations.
(a) Purchase of Participations. Immediately upon issuance by BankBoston
of a Letter of Credit, each Revolving Credit Lender shall be deemed to have
irrevocably and unconditionally purchased and received without recourse or
warranty, an undivided interest and participation in such Letter of Credit,
equal to such Lender's Revolving Credit Facility Percentage of the face amount
thereof (including, without limitation, all obligations of the Borrowers with
respect thereto other than amounts owing to BankBoston under SECTION 5.2(D)),
and any security therefor or guaranty pertaining thereto).
(b) Sharing of Letter of Credit Payments. In the event that BankBoston
makes a payment under any Letter of Credit and BankBoston shall not have been
repaid such amount pursuant to SECTION 3.6, then the Borrowers shall be deemed
to have requested a Base Rate Revolving Credit Loan in the amount of such
payment, and notwithstanding the occurrence or continuance of a Default or Event
of Default at the time of such payment, each Revolving Credit
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Lender shall be absolutely obligated to make its Proportionate Share of such
Revolving Credit Loan available to the Administrative Agent for disbursement as
provided in SECTION 2.2(B).
(c) Sharing of Reimbursement Obligation Payments. Whenever BankBoston
receives a payment from or on behalf of the Borrowers on account of a
Reimbursement Obligation as to which the Administrative Agent has previously
received for the account of BankBoston payment from a Lender pursuant to this
SECTION 3.7, BankBoston shall promptly pay to the Administrative Agent, for the
benefit of such Lender, such Lender's Proportionate Share of the amount of such
payment from the Borrowers in Dollars. Each such payment shall be made by
BankBoston on the Business Day on which BankBoston receives immediately
available funds from the Administrative Agent pursuant to the immediately
preceding sentence, if received prior to 11:00 a.m. on such Business Day, and
otherwise on the next succeeding Business Day.
(d) Documentation. Upon the request of any Lender, the Administrative
Agent shall furnish to such Lender copies of any Letter of Credit, Reimbursement
Agreement or application for any Letter of Credit and such other documentation
as may reasonably be requested by such Lender.
(e) Obligations Irrevocable. The obligations of each Revolving Credit
Lender to make payments to the Administrative Agent with respect to any Letter
of Credit and its participation therein pursuant to the provisions of SECTION
5.10 hereof or otherwise and the obligations of the Borrowers to make payments
to BankBoston or to the Administrative Agent, for the account of the Revolving
Credit Lenders, shall be irrevocable, shall not be subject to any qualification
or exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement (assuming, in the case of the obligations of the
Revolving Credit Lenders to make such payments, that the Letter of Credit has
been issued in accordance with SECTION 3.4), including, without limitation, any
of the following circumstances:
(i) Any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) The existence of any claim, set-off, defense or other
right which any Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any Letter of Credit
(or any Person for whom any such transferee may be acting), any Lender,
BankBoston or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transactions
between any Borrower or any other Person and the beneficiary named in
any Letter of Credit);
(iii) Any draft, certificate or any other document presented
under the Letter of Credit upon which payment has been made in good
faith and according to its terms
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proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(iv) The surrender or impairment of any Collateral or any
other security for the Secured Obligations or the performance or
observance of any of the terms of any of the Loan Documents;
(v) The occurrence of any Default or Event of Default; or
(vi) BankBoston's or the Administrative Agent's failure to
deliver the notice provided for in SECTION 3.4(C).
SECTION 3.8 Indemnification, Exoneration.
(a) Indemnification. In addition to amounts payable as elsewhere
provided in this ARTICLE 3, the Borrowers agree, jointly and severally, to
protect, indemnify, pay and save the Lenders and the Administrative Agent
harmless from and against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable attorneys' fees) which
any Lender or the Administrative Agent may incur or be subject to as a
consequence, directly or indirectly, of
(i) the issuance of any Letter of Credit, other than as a
result of its gross negligence or willful misconduct, as determined by
a court of competent jurisdiction, or
(ii) the failure of BankBoston to honor a drawing under any
Letter of Credit as a result of any act or omission, whether rightful
or wrongful, of any present or future de jure or de facto governmental
authority (all such acts or omissions being hereinafter referred to
collectively as "Government Acts").
(b) Assumption of Risk by the Borrower. As among the Borrowers, the
Lenders and the Administrative Agent, the Borrowers assume all risks of the acts
and omissions of, or misuse of any of the Letters of Credit by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, subject to the provisions of the applications for the issuance of
Letters of Credit, the Lenders and the Administrative Agent shall not be
responsible for:
(i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any Person in connection with
the application for and issuance of and presentation of drafts with
respect to any of the Letters of Credit, even if it should prove to be
in any or all respects invalid, insufficient, inaccurate, fraudulent or
forged;
(ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or
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proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason;
(iii) the failure of the beneficiary of any Letter of Credit
to comply duly with conditions required in order to draw upon such
Letter of Credit;
(iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher;
(v) errors in interpretation of technical terms;
(vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit
or of the proceeds thereof;
(vii) the misapplication by the beneficiary of any Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control
of the Lenders or the Administrative Agent, including, without
limitation, any Government Acts.
None of the foregoing shall affect, impair or prevent the vesting of any of the
Administrative Agent's rights or powers under this SECTION 3.8.
(c) Exoneration. In furtherance and extension, and not in limitation,
of the specific provisions set forth above, any action taken or omitted by the
Administrative Agent, BankBoston or any Lender under or in connection with any
of the Letters of Credit or any related certificates, if taken or omitted in
good faith, absent gross negligence or willful misconduct, shall not result in
any liability of any Lender or the Administrative Agent to any Borrower or
relieve any Borrower of any of its obligations hereunder to any such Person.
SECTION 3.9 Supporting Letter of Credit; Cash Collateral Account. Upon
the occurrence of an Event of Default or, if, notwithstanding the provisions of
SECTION 3.2(B), any Letter of Credit is outstanding on the Termination Date,
then on or prior to the Termination Date, the Borrowers shall, promptly on
demand by the Administrative Agent, deposit with the Administrative Agent, for
the Ratable benefit of the Lenders, with respect to each Letter of Credit then
outstanding, as the Administrative Agent shall specify, either (a) a standby
letter of credit (a "Supporting Letter of Credit") in form and substance
satisfactory to the Administrative Agent, issued by an issuer satisfactory to
the Administrative Agent in its reasonable judgment in an amount equal to the
greatest amount for which such Letter of Credit may be drawn and expiring not
earlier than 10 days after the expiration date of such Letter of Credit, under
which Supporting Letter of Credit the Administrative Agent shall be entitled to
draw amounts necessary to reimburse the Administrative Agent and the Revolving
Credit Lenders for payments made by the Administrative Agent and the Revolving
Credit Lenders under such Letter of Credit or under any
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reimbursement or guaranty agreement with respect thereto, or (b) Cash Collateral
in an amount necessary to reimburse the Administrative Agent and the Revolving
Credit Lenders for payments made by the Administrative Agent and the Lenders
under such Letter of Credit or under any reimbursement or guaranty agreement
with respect thereto. Such Supporting Letter of Credit or Cash Collateral shall
be held by the Administrative Agent first, for the Ratable benefit of the
Revolving Credit Lenders, as security for, and to provide for the payment of,
the Reimbursement Obligations, and after any Reimbursement Obligations have been
paid in full, for the Ratable benefit of all Lenders; PROVIDED that, the
Administrative Agent may at any time after the Termination Date or if an Event
of Default exists, apply any or all of such Cash Collateral to the payment of
any or all of the Secured Obligations then due and payable. The Cash Collateral
shall be deposited in the Cash Collateral Account or an Investment Account and
shall be administered in accordance with the provisions of SECTION 5.16.
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ARTICLE 4
TERM LOAN FACILITIES
SECTION 4.1 Term Loans.
(a) Term Loan A. Upon the terms and subject to the conditions of,
and in reliance upon the representations and warranties made under, this
Agreement, each Term Loan A Lender agrees severally, but not jointly, to make a
Base Rate Loan to the Borrowers on the Effective Date, in a principal amount
equal to such Lender's Proportionate Share of the Term Loan A Facility.
(b) Term Loan B. Upon the terms and subject to the conditions of,
and in reliance upon the representations and warranties made under, this
Agreement, each Term Loan B Lender agrees severally, but not jointly, to make a
Base Rate Loan to the Borrowers on the Effective Date in a principal amount
equal to such Lender's Proportionate Share of the Term Loan B Facility.
(c) Term Loan C. Upon the terms and subject to the conditions of,
and in reliance upon the representations and warranties made under, this
Agreement, each Term Loan C Lender agrees severally, but not jointly, to make a
Base Rate Loan to the Borrowers on the Effective Date in a principal amount
equal to such Lender's Proportionate Share of the Term Loan C Facility.
SECTION 4.2 Manner of Borrowing Term Loans. The Borrowers, through the
Borrowers' Representative, shall give the Administrative Agent an Initial
Notice of Borrowing at least two Business Days' prior to the occurrence of the
Effective Date. Upon receipt of such notice from the Borrowers' Representative,
the Administrative Agent shall promptly notify each Term Loan Lender thereof.
Each Term Loan Lender will make a Base Rate Loan in an amount equal to its
Proportionate Share of the aggregate principal amount of the Term Loans
properly requested in the Initial Notice of Borrowing available to the
Administrative Agent, for the account of the Borrowers, at the Administrative
Agent's Office, prior to 12:00 noon on the Effective Date (assuming
satisfaction of the applicable conditions set forth in Article 6) in funds
immediately available to the Administrative Agent. On the Effective Date, upon
satisfaction of the applicable conditions set forth in ARTICLE 6, as
applicable, the Administrative Agent will disburse the Term Loans on the
Effective Date, in same day funds in accordance with the terms of the Initial
Notice of Borrowing.
SECTION 4.3 Repayment of Term Loans.
(a) Term Loan A. The principal amount of Term Loan A is due and
payable, and shall be repaid in full by the Borrowers, as their joint and
several obligation, in twenty consecutive installments on successive
Installment Payment Dates as follows: eight installments on successive
Installment Payment Dates commencing on March 31, 2000, each in the amount of
$750,000; eight installments on successive
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Installment Payment Dates commencing on March 31, 2002, each in the amount of
$1,500,000; and four installments on successive Installment Payment Dates
commencing March 31, 2004, each in the amount of $1,750,000; PROVIDED that the
payment due on December 31, 2004 shall be in the full amount of the then
outstanding and unpaid principal balance of Term Loan A.
(b) Term Loan B. The principal amount of Term Loan B is due and
payable, and shall be repaid in full by the Borrowers, as their joint and
several obligation, in twenty-six consecutive installments on successive
Installment Payment Dates as follows: twenty installments on successive
Installment Payment Dates commencing on March 31, 2000, each in the amount of
$175,000; four installments on successive Installment Payment Dates commencing
on March 31, 2005, each in the amount of $8,312,500; one installment on March
31, 2006, in the amount of $16,625,000; and one installment on June 30, 2006,
in the amount of $9,125,000; PROVIDED that the payment due on June 30, 2006
shall be in the full amount of the then outstanding and unpaid principal of
Term Loan B.
(c) Term Loan C. The principal amount of Term Loan C is due and
payable, and shall be repaid in full by the Borrowers, as their joint and
several obligation, on June 30, 2006.
SECTION 4.4 Term Notes. The Loans made by each Lender as part of Term
Loan A and the joint and several obligation of the Borrowers to repay such
Loans shall also be evidenced by a Term Note A payable to the order of such
Lender. The Loans made by each Lender as part of Term Loan B and the joint and
several obligation of the Borrowers to repay such Loans shall also be evidenced
by a Term Note B payable to the order of such Lender. The Loans made by each
Lender as part of Term Loan C and the joint and several obligation of the
Borrowers to repay such Loans shall also be evidenced by a Term Note C. Each
such Term Note A, Term Note B and Term Note C shall be dated the Effective Date
(or the later "effective date" under any Assignment and Acceptance) and be duly
and validly executed and delivered by the Borrowers.
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ARTICLE 4A
ACQUISITION FACILITY
SECTION 4A.1 Acquisition Loans. Upon the terms and subject to the
conditions of, and in reliance upon the representations and warranties made
under, this Agreement, each Acquisition Facility Lender agrees, severally, but
not jointly, to make Acquisition Loans under the Acquisition Facility to the
Borrowers from time to time from the Effective Date to and including the
Acquisition Facility Termination Date, as requested or deemed requested by the
Borrowers' Representative in accordance with the terms of SECTION 4A.2, in
amounts equal to such Lender's Proportionate Share of each Acquisition Loan
requested hereunder up to an aggregate amount at any one time outstanding equal
to such Lender's Proportionate Share of $20,000,000. The principal amount of
any Loans made under the Acquisition Facility which is repaid prior to the
Acquisition Facility Termination Date may be reborrowed by the Borrowers prior
to the Acquisition Facility Termination Date, subject to the terms and
conditions of this Agreement, in accordance with the terms of this ARTICLE 4A.
The Administrative Agent's and each Acquisition Facility Lender's books and
records reflecting the date and the amount of each Loan made under the
Acquisition Facility and each repayment of principal thereof shall constitute
prima facie evidence of the accuracy of the information contained therein,
subject to the provisions of SECTION 5.3.
SECTION 4A.2 (a) Borrowing. Requests for Borrowings under the
Acquisition Facility shall be made by delivery of a Notice of Borrowing, given
by the Borrowers' Representative, in the manner specified in SECTION 6.2.
(a) Disbursement of Loans. The Administrative Agent shall
promptly (and in any event not later than the Business Day prior to the
proposed Borrowing date) notify the Lenders of any Notice of Borrowing given in
respect of a Borrowing requested under the Acquisition Facility. Not later than
1:30 p.m. on the proposed Borrowing date, each Acquisition Facility Lender will
make available to the Administrative Agent, for the account of the Borrowers,
at the Administrative Agent's Office in funds immediately available to the
Administrative Agent, such Lender's Proportionate Share of such Acquisition
Loan. The Borrowers hereby irrevocably authorize the Administrative Agent to
disburse the proceeds of each Acquisition Loan in Dollars in immediately
available funds by wire transfer or other appropriate means to such account or
accounts as may be agreed upon by the Borrowers' Representative and the
Administrative Agent from time to time.
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SECTION 4A.3 Repayment of Acquisition Loans. Amounts borrowed under
the Acquisition Facility may be repaid and, subject to compliance with the
applicable provisions of ARTICLE 6 and this ARTICLE 4A, be reborrowed at any
time prior to the Acquisition Facility Termination Date. The aggregate
principal amount of Acquisition Loans outstanding on the Acquisition Facility
Termination Date shall be repaid in twelve consecutive installments on
successive Installment Payment Dates commencing on March 31, 2002 in such
substantially equal installments during each calendar year as will result in
20% of such outstanding principal amount being repaid in year one, 30% of such
outstanding principal amount being repaid in year two and 50% of such
outstanding principal amount being repaid in year three; PROVIDED that the
payment due on December 31, 2004 shall be in the full amount of the then unpaid
principal of Acquisition Loans. Repayments pursuant to this SECTION 4A.3 shall
be applied first to Base Rate Acquisition Loans and then to Eurodollar Rate
Acquisition Loans.
SECTION 4A.4 Acquisition Note. Each Lender's Acquisition Loans and the
joint and several obligation of the Borrowers to repay such Acquisition Loans
shall also be evidenced by an Acquisition Note payable to the order of such
Lender. Each Acquisition Note shall be dated the Effective Date (or later
"effective date" under any Assignment and Acceptance) and be duly and validly
executed and delivered by the Borrowers.
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ARTICLE 5
GENERAL LOAN PROVISIONS
SECTION 5.1 Interest.
(a) (i) Base Rate Loans. Subject to the provisions of SECTION
5.1(D), the Borrowers will pay interest on the unpaid principal amount of each
Base Rate Loan, for each day from the day such Loan is made until such Loan is
paid (whether at maturity, by reason of acceleration, or otherwise) or is
converted to a Loan of a different Type, at a rate per annum equal to the sum
of (i) the Applicable Margin and (ii) the Base Rate, payable monthly in arrears
as it accrues on each Interest Payment Date, and upon any prepayment thereof on
the amount prepaid.
(ii) Eurodollar Rate Loans. Subject to the provisions of SECTION
5.1(D), the Borrowers will pay interest on the unpaid principal amount of each
Eurodollar Rate Loan for the applicable Interest Period at a rate per annum
equal to the sum of (i) the Applicable Margin and (ii) the Eurodollar Rate,
payable on each Interest Payment Date, and upon any prepayment thereof on the
amount prepaid.
(b) Swingline Loans. Subject to the provisions of SECTION 5.1(D),
the Borrowers will pay interest on the unpaid principal amount of each
Swingline Loan for each day from the day such Loan is made, until such Loan is
paid (whether at maturity, by reason of acceleration, or otherwise), at the
Quoted Rate or the Eurodollar Swingline Rate, as selected by the Borrowers'
Representative, payable on the Swingline Loan Maturity or upon any earlier
repayment thereof.
(c) Other Secured Obligations. The Borrowers will, to the extent
permitted by Applicable Law, pay interest on the unpaid principal amount of any
Secured Obligation that is due and payable (other than the Loans in accordance
with SECTION 5.1(A), (B) or (C), as applicable), on demand, as if such Secured
Obligation were a Base Rate Revolving Credit Loan. Interest that is due and
payable shall be deemed to be a liquidated amount and obligation of the
Borrowers and shall, to the extent permitted by Applicable Law, bear interest
in accordance with this SECTION 5.1(C).
(d) Default Rate. If there shall occur and be continuing an Event
of Default, the unpaid principal amount of the Loans and other Secured
Obligations shall, at the election of the Required Lenders, no longer bear
interest in accordance with the terms of SECTION 5.1(A), 5.1(B) or 5.1(C), but
shall bear interest for each day from the date of such Event of Default until
such Event of Default shall have been cured or waived at a rate per annum equal
to the sum of (i) the Default Margin and (ii) the rate otherwise applicable to
such Loan, payable on demand. The interest rate provided for in the preceding
sentence shall, to the extent permitted by Applicable Law, apply to and accrue
on the amount of any judgment entered with respect to any Secured
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Obligation and shall continue to accrue at such rate during any proceeding
described in SECTION 13.1(G) or (H).
(e) Calculation of Interest. The interest rates provided for in
SECTIONS 5.1(A), (B), (C) and (D) shall be computed on the basis of a year of
360 days and the actual number of days elapsed. Each interest rate determined
with reference to the Base Rate shall be adjusted automatically as of the
opening of business on the effective date of each change in the Base Rate.
(f) Maximum Rate. It is not intended by the Lenders, and nothing
contained in this Agreement or the Notes shall be deemed, to establish or
require the payment of a rate of interest in excess of the maximum rate
permitted by Applicable Law (the "Maximum Rate"). If, in any month, the
Effective Interest Rate, absent such limitation, would have exceeded the
Maximum Rate, then the Effective Interest Rate for that month shall be the
Maximum Rate, and, if in future months, the Effective Interest Rate would
otherwise be less than the Maximum Rate, then the Effective Interest Rate shall
remain at the Maximum Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have been paid if the same
had not been limited by the Maximum Rate. In the event that, upon payment in
full of the Secured Obligations, the total amount of interest paid or accrued
under the terms of this Agreement is less than the total amount of interest
which would have been paid or accrued if the Effective Interest Rate had at all
times been in effect, then the Borrowers shall, to the extent permitted by
Applicable Law, pay to the Lenders an amount equal to the excess, if any, of
(i) the lesser of (A) the amount of interest which would have been charged if
the Maximum Rate had, at all times, been in effect and (B) the amount of
interest which would have accrued had the Effective Interest Rate, at all
times, been in effect and (ii) the amount of interest actually paid or accrued
under this Agreement. In the event the Lenders receive, collect or apply as
interest any sum in excess of the Maximum Rate, such excess amount shall be
applied to the reduction of the principal balance of the Secured Obligations,
and if no such principal is then outstanding, such excess or part thereof
remaining, shall be paid to the Borrowers. For the purposes of computing the
Maximum Rate, to the extent permitted by Applicable Law, all interest and
charges, discounts, amounts, premiums or fees deemed to constitute interest
under Applicable Law, shall be amortized, prorated, allocated and spread in
substantially equal parts throughout the full term of this Agreement. The
provisions of this SECTION 5.1(F) shall be deemed to be incorporated into every
Loan Document (whether or not any provision of this SECTION 5.1(F) is
specifically referred to therein).
SECTION 5.2 Certain Fees.
(a) Origination Fee. On the Effective Date, the Borrowers shall
pay to BankBoston, solely for its own account, an origination fee in accordance
with the provisions of a separate agreement between the Borrowers and
BankBoston.
(b) Administrative Agent Fee. For administration and other
services performed by the Administrative Agent in connection with its
continuing administration of this Agreement, the Borrowers shall pay to the
Administrative Agent, for its own account, and not for the account of
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the Lenders, an annual fee in accordance with the provisions of a separate
agreement between the Borrowers and the Administrative Agent.
(c) Commitment Fee. In connection with and as consideration for
the holding available for the use of the Borrowers hereunder the full amount of
the Revolving Credit Facility and, prior to the Acquisition Facility
Termination Date, the Acquisition Facility, the Borrowers will pay to the
Administrative Agent, for the Ratable benefit of the Lenders, (i) for each day
from the Effective Date until the Termination Date, a fee at a rate equal to
1/2 of 1% per annum on an amount equal to the unused portion of the Revolving
Credit Facility for such day, subject, however, to quarterly adjustment in
accordance with the pricing matrix attached hereto as ANNEX B, and (ii) for
each day from the Effective Date until the first date on which Acquisition
Loans in an aggregate principal amount greater than $10,000,000 are outstanding
(or, if earlier, the Acquisition Facility Termination Date), a fee at the rate
of 3/4 of 1% per annum and thereafter, at anytime prior to the Acquisition
Facility Termination Date, a fee at a rate equal to 1/2 of 1% per annum
subject, however, to quarterly adjustment in accordance with the pricing matrix
attached hereto as ANNEX B, on an amount equal to the unused portion of the
Acquisition Facility for such day. Such fees shall be payable quarterly in
arrears on each Installment Payment Date beginning September 30, 1999 and on
the date of any permanent reduction in the Revolving Credit Facility or the
Acquisition Facility.
(d) Letter of Credit Fees.
(i) The Borrowers agree to pay to the Administrative
Agent, for the Ratable benefit of the Lenders, Letter of Credit fees
equal to a rate per annum equal to the Applicable Margin on the
Eurodollar Rate Revolving Credit Loans based on the average daily
aggregate Letter of Credit Amount of all standby Letters of Credit
from time to time outstanding during the term of this Agreement. Such
fees shall be payable to the Administrative Agent for the Ratable
benefit of the Lenders in advance on the date of issuance of each
Letter of Credit, shall be calculated according to the anticipated
average daily Letter of Credit Amount based on the stated term of each
Letter of Credit and shall be calculated based on a year of 360 days
and the actual number of days elapsed. In the event any Letter of
Credit is canceled or terminated prior to the expiration of its stated
term, the Lenders will make appropriate adjustments in such fees based
on the actual average daily face amount of outstanding Letters of
Credit and will refund to the Borrowers the amount of any excess fee
paid pursuant to this SECTION 5.2(D).
(ii) The Borrowers agree to pay to Administrative Agent,
for the account of BankBoston, the standard fees and charges of
BankBoston for issuing, administering, amending, renewing, paying and
canceling letters of credit, as and when assessed including, without
limitation, a fronting fee at a rate equal to 1/8 of 1% per annum
based on the aggregate Letter of Credit Amount of all standby Letters
of Credit the issuance of which has been authorized by the
Administrative Agent pursuant to SECTION 3.4.
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(e) General. All fees shall be computed on the basis of a year of
360 days and the actual number of days elapsed, and shall be fully earned by
the Administrative Agent, BankBoston and the Lenders when due and payable and,
except as otherwise set forth herein or required by Applicable Law, shall not
be subject to refund or rebate. All fees are compensation for services and are
not, and shall not be deemed to be, interest or a charge for the use of money.
SECTION 5.3 Borrowing and Conversion or Continuation of Loans. (a)
When the Borrowers desire a Borrowing under the Revolving Credit Facility, the
Borrowers' Representative shall notify the Agent (which notice shall be
irrevocable) by telecopy, telex or telephone not later than 11:00 a.m. on the
date one Business Day before the day on which the requested Loan is to be made
as a Base Rate Loan, and not later than 11:00 a.m. on the date three Business
Days before the day on which the requested Loan is to be made as a Eurodollar
Rate Loan. Each such Notice of Borrowing shall specify (i) the effective date
and amount of each Loan requested, (ii) the Type of such Loan, and (iii) if
such Loan is a Eurodollar Rate Loan, the duration of the applicable Interest
Period, and shall be immediately followed by a written confirmation thereof by
the Borrowers' Representative in substantially the form of EXHIBIT E-1 hereto,
PROVIDED that if such written confirmation differs in any material respect from
the action taken by the Administrative Agent, the records of the Administrative
Agent shall control absent manifest error. Notwithstanding the foregoing, if
the Borrowers' Representative has not submitted a Swingline Loan Request for a
borrowing in an amount sufficient to satisfy such Secured Obligation, the
Borrowers' Representative shall be deemed to have given to the Administrative
Agent a Notice of Borrowing of a Base Rate Revolving Credit Loan on the
Business Day immediately preceding the day on which is due (i) any payment with
respect to a Swingline Loan pursuant to SECTION 2A.3 or 2A.4, (ii) any payment
or reimbursement with respect to a Letter of Credit pursuant to SECTION 3.6(A),
(iii) any payment of interest pursuant to SECTION 5.1, (iv) any payment of fees
pursuant to SECTIONS 5.2(A), (B) or (C), (v) any payment under SECTION 5.16, or
(vi) any payment of any other Secured Obligation, such Loan to be made on the
next succeeding Business Day in the amount of the Secured Obligation(s) due on
such next succeeding Business Day.
(b) Whenever the Borrowers desire, subject to the provisions of
SECTION 5.4, to convert an outstanding Loan into a Loan of a different Type
provided for in this Agreement or to continue an outstanding Loan for a
subsequent Interest Period, the Borrowers' Representative shall notify the
Administrative Agent (which notice shall be irrevocable) by telex, telegraph,
telecopy or telephone not later than 10:00 a.m. on the date one Business Day
before the day on which a proposed conversion of a Loan into, or a continuation
of a Loan as a Base Rate Loan, and three Business Days before the day on which
a proposed conversion of a Loan into, or continuation of a Loan as a Eurodollar
Rate Loan is to be effective (and if the Loan to be converted or continued is a
Eurodollar Rate Loan such effective date shall be the last day of the Interest
Period therefor). Each such notice (a "Notice of Conversion or Continuation")
shall (i) identify the Loan to be converted or continued, including the Type of
such Loan, the aggregate outstanding principal balance thereof and, in the case
of a Eurodollar Rate Loan, the last day of the Interest Period therefor, (ii)
specify the effective date of such conversion or continuation, (iii)
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specify the principal amount of such Loan to be converted or continued and, if
converted, the Type or Types of Loan into which conversion of such principal
amount is to be made, and (iv) in the case of any conversion into or
continuation as Eurodollar Loans, the Interest Period to be applicable to such
converted or continued Loan, and shall be immediately followed by a written
confirmation thereof by the Borrowers' Representative in substantially the from
of EXHIBIT F hereto, PROVIDED that is such written confirmation differs in any
material respect from the action taken by the Administrative Agent, the record
of the Administrative Agent shall control absent manifest error.
SECTION 5.4 Conversion or Continuation. Provided that no Default or
Event of Default shall have occurred and be continuing (but subject to the
provisions of SECTIONS 5.3 and 5.15), the Borrowers may request that all or any
part of any outstanding Loan be converted into a Loan or Loans of a different
Type or be continued as a Loan or Loans of the same Type, in the same aggregate
principal amount, on any Business Day (which, in the case of continuation of a
Eurodollar Rate Loan, shall be the last day of the Interest Period applicable
to such Loan), upon notice (which notice shall be irrevocable) given in
accordance with SECTION 5.3, PROVIDED that nothing in this ARTICLE 5 shall be
construed to permit the conversion of a Loan under one Facility into a Loan
outstanding under another Facility.
SECTION 5.5 Manner of Payment. (a) Except as otherwise expressly
provided in SECTION 9.1(B), each payment (including prepayments) by the
Borrowers on account of the principal of or interest on the Loans or of any
other amounts payable to the Lenders under this Agreement or any Note shall be
made not later than 4:30 p.m. on the date specified for payment under this
Agreement to the Administrative Agent, for the account of the Lenders, at the
Administrative Agent's Office, in Dollars, in immediately available funds and
shall be made without any setoff, counterclaim or deduction whatsoever.
(b) The Borrowers hereby irrevocably authorize each Lender and
each Affiliate of such Lender and each participant herein to charge any account
of the Borrowers maintained with such Lender or such Affiliate or participant
with such amounts as may be necessary from time to time to pay any Secured
Obligations (whether or not owed to such Lender, Affiliate or participant)
which are not paid when due.
SECTION 5.6 General. If any payment under this Agreement or any Note
shall be specified to be made on a day which is not a Business Day, it shall be
made on the next succeeding day which is a Business Day and such extension of
time shall in such case be included in computing interest, if any, in
connection with such payment.
SECTION 5.7 Loan Accounts; Statements of Account.
(a) Each Lender shall open and maintain on its books a loan
account in the Borrowers' name (each, a "Loan Account" and collectively, the
"Loan Accounts"). Each such Loan Account shall show as debits thereto each Loan
made under this Agreement by such Lender to the
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Borrowers and as credits thereto all payments received by such Lender and
applied to principal of such Loans, so that the balance of the Loan Account at
all times reflects the principal amount due such Lender from the Borrowers.
(b) The Administrative Agent shall maintain on its books a
control account for the Borrowers in which shall be recorded (i) the amount of
each disbursement made hereunder, (ii) the amount of any principal or interest
due or to become due from the Borrowers hereunder, and (iii) the amount of any
sum received by the Administrative Agent hereunder from the Borrowers and each
Lender's share therein.
(c) The entries made in the accounts pursuant to SUBSECTIONS (a)
and (B) shall be prima facie evidence, in the absence of manifest error, of the
existence and amounts of the obligations of the Borrowers therein recorded and
in case of discrepancy between such accounts, in the absence of manifest error,
the accounts maintained pursuant to SUBSECTION (B) shall be controlling.
(d) The Administrative Agent will account separately to the
Borrowers monthly with a statement of Loans, charges and payments made to and
by the Borrowers pursuant to this Agreement, and such accounts rendered by the
Administrative Agent shall be deemed final, binding and conclusive, save for
manifest error, unless the Administrative Agent is notified by the Borrowers in
writing to the contrary within 30 days of the date the account to the Borrowers
was so rendered or items reflected in such statements are modified pursuant to
the Administrative Agent's ability to reverse and reapply credits or otherwise,
in which case the Borrowers shall again have the same opportunity to examine
and object to any such modified or restated account before it is deemed final,
binding and conclusive. Such notice by the Borrowers shall be deemed an
objection to only those items specifically objected to therein. Failure of the
Administrative Agent to render such account shall in no way affect the rights
of the Administrative Agent or of the Lenders hereunder.
SECTION 5.8 Reduction of Revolving Credit Facility and Acquisition
Facility; Termination of Agreement.
(a) Reduction of Revolving Credit Facility.
(i) The Borrowers shall have the right, at any time and
from time to time, upon at least 30 days' prior irrevocable, written
notice to the Administrative Agent, to terminate or reduce permanently
all or a portion of the Revolving Credit Facility, without premium or
penalty; PROVIDED, HOWEVER, that any such partial reduction of such
facility shall be not less than $200,000 and shall not reduce the
Revolving Credit Facility below the amount of the aggregate Letter of
Credit Obligations. As of the date of termination or reduction set
forth in such notice, the Revolving Credit Facility shall be
permanently reduced to the amount stated in the Borrowers' notice for
all purposes herein, and the Borrowers shall pay the amount necessary
to reduce the amount of the outstanding
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Revolving Credit Loans to an amount not greater than the Revolving
Credit Facility as so reduced, together with accrued interest on the
amounts so prepaid.
(ii) The amount of the Revolving Credit Facility shall be
automatically reduced to zero on the Termination Date.
(iii) The Revolving Credit Facility or any portion thereof
terminated or reduced pursuant to this SECTION 5.8 may not be
reinstated.
(b) Reduction of Acquisition Facility.
(i) The Borrowers shall have the right, at any time and
from time to time, upon at least 30 days' prior irrevocable, written
notice to the Administrative Agent, to terminate or reduce permanently
all or any part of the unused Acquisition Facility, without premium or
penalty; PROVIDED, HOWEVER, that any such partial reduction shall be
not less than $200,000. As of the date of termination or reduction set
forth in such notice, the Acquisition Facility shall be permanently
reduced to the amount stated in the Borrowers' notice for all purposes
herein.
(ii) The Acquisition Facility or any portion thereof
terminated or reduced pursuant to this SECTION 5.8 may not be
reinstated.
(c) Termination of Agreement. The Borrowers shall have the right,
at any time, to terminate this Agreement upon not less than 30 Business Days'
prior written notice, which notice shall specify the effective date of such
termination. Upon receipt of such notice, the Administrative Agent shall
promptly notify each Lender thereof. On the date specified in such notice, such
termination shall be effected, PROVIDED, that the Borrowers shall, on or prior
to such date, pay to the Administrative Agent, for its account and the account
of the Lenders, in same day funds, an amount equal to all Secured Obligations
(other than with respect to Letter of Credit Obligations) outstanding on such
date, including, without limitation, all (i) accrued interest thereon, (ii) all
accrued fees provided for hereunder, and (iii) any amounts payable to the
Lender pursuant to SECTIONS 5.12, 5.15, 16.2, 16.3, 16.14 and 16.23, and, in
addition thereto, shall deliver to the Administrative Agent, in respect of each
outstanding Letter of Credit, either a Supporting Letter of Credit or Cash
Collateral as provided in SECTION 3.9. Additionally, the Borrowers shall
provide the Administrative Agent and the Lenders with indemnification in form
and substance satisfactory to the Administrative Agent with respect to such
customary matters as the Administrative Agent and the Lenders shall require.
Following a notice of termination as provided for in this SECTION 5.8(C) and
upon payment in full of the amounts specified in this SECTION 5.8(C), and
execution and delivery of any required indemnification, this Agreement shall be
terminated and the Administrative Agent, the Co-Agents, the Lenders and the
Borrowers shall have no further obligations to any other party hereto, except
for the obligations to the
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Administrative Agent and the Lenders pursuant to SECTION 16.14 hereof, which
shall survive any termination of this Agreement.
SECTION 5.9 Making of Loans.
(a) Nature of Obligations of Lenders to Make Loans. The
obligations of the Lenders under this Agreement to make the Loans are several
and are not joint or joint and several.
(b) Assumption by Administrative Agent. Notwithstanding the
occurrence or continuance of a Default or Event of Default or other failure of
any condition to the making of Loans under the Revolving Credit Facility or the
Acquisition Facility hereunder subsequent to the Initial Loans, unless the
Administrative Agent shall have received notice from a Lender in accordance
with the provisions of SECTION 5.9(C) prior to a proposed Borrowing date that
such Lender will not make available to the Administrative Agent such Lender's
Proportionate Share of the Revolving Credit Loan or the Acquisition Loan to be
borrowed on such date, the Administrative Agent may assume that such Lender
will make such Proportionate Share available to the Administrative Agent in
accordance with SECTION 2.2(A) and SECTION 4A.2(A), and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrowers on
such date a corresponding amount. If and to the extent such Lender shall not
make such Proportionate Share available to the Administrative Agent, such
Lender and the Borrowers severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount (the "Make-Whole Amount"),
together with interest thereon for each day from the date such amount is made
available to the Borrowers until the date such amount is repaid to the
Administrative Agent at the Effective Interest Rate or, if lower, subject to
SECTION 5.1(F), the Maximum Rate; PROVIDED, HOWEVER, if on the Interest Payment
Date next following the date on which any Lender pays interest to the
Administrative Agent at the Effective Rate or the Maximum Rate on a Make-Whole
Amount as aforesaid, the Borrower defaults in making the interest payment due
on such Interest Payment Date, then the Administrative Agent shall reimburse
such Lender for the excess, if any, of the amount of interest so paid by such
Lender on the Make-Whole Amount over the amount of interest that such Lender
would have paid had the Lender been required to pay interest on the Make-Whole
Amount at the Federal Funds Effective Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, the amount so repaid shall
constitute such Lender's Proportionate Share of the Loan made on such Borrowing
date for purposes of this Agreement. The failure of any Lender to make its
Proportionate Share of any Loan available shall not (without regard to whether
a Borrower shall have returned the amount thereof to the Administrative Agent
in accordance with this SECTION 5.9) relieve it or any other Lender of its
obligation, if any, hereunder to make its Proportionate Share of the Loan
available on such Borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Proportionate Share of a Loan available
on the Borrowing date.
(c) Delegation of Authority to Administrative Agent. Without
limiting the generality of SECTION 15.1, each Lender expressly authorizes the
Administrative Agent to determine on behalf of such Lender (i) any reduction or
increase of advance rates applicable to the Borrowing
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Base, so long as such advance rates do not at any time exceed the rates set
forth in the Borrowing Base definition, (ii) the creation or elimination of any
Reserves (other than the Letter of Credit Reserve) against the Revolving Credit
Facility and the Borrowing Base and (iii) whether or not Inventory or
Receivables shall be deemed to constitute Eligible Inventory or Eligible
Receivables. Such authorization may be withdrawn by the Required Lenders by
giving the Administrative Agent written notice of such withdrawal signed by the
Required Lenders; PROVIDED, HOWEVER, that unless otherwise agreed by the
Administrative Agent such withdrawal of authorization shall not become
effective until the thirtieth Business Day after receipt of such notice by the
Administrative Agent. Thereafter, the Required Lenders shall jointly instruct
the Administrative Agent in writing regarding such matters with such frequency
as the Required Lenders shall jointly determine. Unless and until the
Administrative Agent shall have received written notice from the Required
Lenders as to the existence of a Default, an Event of Default or some other
circumstance which would relieve the Lenders of their respective obligations to
make Loans hereunder, which notice shall be in writing and shall be signed by
the Required Lenders and shall expressly state that the Required Lenders do not
intend to make available to the Administrative Agent such Lenders' Ratable
Share of Loans made after the effective date of such notice, the Administrative
Agent shall be entitled to continue to make Loans to the Borrowers based upon
the assumptions described in SECTION 5.9(B) and all Lenders agree to make such
Loans. After receipt of the notice described in the preceding sentence, which
shall become effective on the third Business Day after receipt of such notice
by the Administrative Agent unless otherwise agreed by the Administrative
Agent, the Administrative Agent shall be entitled to make the assumptions
described in SECTION 5.9(B) as to any Loans as to which it has not received a
written notice to the contrary prior to 11:00 a.m. on the Business Day next
preceding the day on which the Loan is to be made. The Administrative Agent
shall not be required to make any Loan as to which it shall have received
notice by a Lender of such Lender's intention not to make its Ratable Share of
such Loan available to the Administrative Agent. Any withdrawal of
authorization under this SECTION 5.9(C) shall not affect the validity of any
Loans made prior to the effectiveness thereof.
(d) Replacement of Certain Lenders. If a Lender (the "Affected
Lender") shall have failed to fund its Proportionate Share of any Loan
requested by the Borrowers which such Lender is obligated to fund under the
terms of this Agreement and which such failure has not been cured, then, in any
such case and in addition to any other rights and remedies that the
Administrative Agent, any other Lender or the Borrowers may have against such
Affected Lender, the Borrowers or the Administrative Agent may make written
demand on such Affected Lender (with a copy to the Administrative Agent in the
case of a demand by the Borrowers and a copy to the Borrowers in the case of a
demand by the Administrative Agent) for the Affected Lender to assign, and such
Affected Lender shall assign pursuant to one or more duly executed Assignment
and Acceptances within five Business Days after the date of such demand, to one
or more Lenders willing to accept such assignment or assignments, or to one or
more Eligible Assignees designated by the Administrative Agent, and reasonably
acceptable to the Borrowers, all of such Affected Lender's rights and
obligations under this Agreement (including its Commitments and all Loans owing
to it) in accordance with ARTICLE 14. The Administrative Agent is hereby
irrevocably authorized to
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execute one or more Assignment and Acceptances as attorney-in-fact for any
Affected Lender which fails or refuses to execute and deliver the same within
five Business Days after the date of such demand. The Affected Lender shall be
entitled to receive, in cash and concurrently with execution and delivery of
each such Assignment and Acceptance, all amounts owed to the Affected Lender
hereunder or under any other Loan Document, including the aggregate outstanding
principal amount of the Loans owed to such Lender, together with accrued
interest thereon through the date of such assignment. Upon the replacement of
any Affected Lender pursuant to this SECTION 5.9(D), such Affected Lender shall
cease to have any participation in, entitlement to, or other right to share in
the Security Interest or any other Lien of the Administrative Agent in any
Collateral and such Affected Lender shall have no further liability to the
Administrative Agent, any Lender or any other Person under any of the Loan
Documents (except as provided in SECTION 15.7 and elsewhere in this Agreement
as to events or transactions which occur prior to the replacement of such
Affected Lender).
(e) Overadvances. Notwithstanding anything to the contrary
contained elsewhere in this SECTION 5.9 or this Agreement or the other Loan
Documents and whether or not a Default or Event of Default exists at the time,
unless otherwise notified by the Required Lenders in accordance with SECTION
5.9(C), the Administrative Agent may in its discretion require all Lenders to
honor requests or deemed requests by the Borrowers for Revolving Credit Loans
at a time that an Overadvance Condition exists or which would result in an
Overadvance Condition and each Lender shall be obligated to continue to make
its Proportionate Share of Revolving Credit Loans up to a maximum amount
outstanding equal to its Commitment, so long as the total amount of such
Overadvance is not known by the Administrative Agent to exceed $3,000,000. The
Borrowers shall repay any such Overadvance on the earlier of (i) demand by the
Administrative Agent or (ii) 30 days following the day on which such
Overadvance Condition first exists.
SECTION 5.10 Settlement Among Lenders.
(a) Term Loans. The Administrative Agent shall pay to each Lender
on each Interest Payment Date or Installment Payment Date, as the case may be,
its Ratable Share (or, if different, a proportionate amount based on the
principal amount of the Term Loans owing to such Lender), of all payments
received by the Administrative Agent hereunder in immediately available funds
in respect of the principal of, or interest on, the Term Loans, net of any
amounts payable by such Lender to the Administrative Agent, by wire transfer of
same day funds.
(b) Acquisition Loans. The Administrative Agent shall pay to each
Lender on each Interest Payment Date or Installment Payment Date, as the case
may be, its Ratable Share (or, if different, a proportionate amount based on
the principal amount of the Acquisition Loans owing to such Lender), of all
payments received by the Administrative Agent hereunder in immediately
available funds in respect of the principal of, or interest on, the Acquisition
Loans, net of any amounts payable by such Lender to the Administrative Agent,
by wire transfer of same day funds.
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(c) Revolving Credit Loans. The Administrative Agent shall pay to
each Lender on each Interest Payment Date its Ratable Share (or, if different,
a proportionate amount based on the principal amount of Revolving Credit Loans
owing to such Lender), of all payments received by the Administrative Agent
hereunder in immediately available funds, in respect of the principal of or
interest on, the Revolving Credit Loans, net of any amounts payable by such
Lender to the Administrative Agent, by wire transfer of same day funds.
(d) Return of Payments. If any amounts received by BankBoston in
respect of the Secured Obligations are later required to be returned or repaid
by BankBoston to the Borrowers or any other obligor or their respective
representatives or successors in interest, whether by court order, settlement
or otherwise, in excess of the BankBoston's Proportionate Share of all such
amounts required to be returned by all Lenders, each other Lender shall, upon
demand by BankBoston with notice to the Administrative Agent, pay to the
Administrative Agent for the account of BankBoston, an amount equal to the
excess of such Lender's Proportionate Share of all such amounts required to be
returned by all Lenders over the amount, if any, returned directly by such
Lender.
(e) Payments to Administrative Agent, Lenders.
(i) Payment by any Lender to the Administrative Agent
shall be made not later than 1:00 p.m. on the Business Day such
payment is due, PROVIDED that if such payment is due on demand by the
Swingline Lender, such demand is made on the paying Lender not later
than 11:30 a.m. on such Business Day. Payment by the Administrative
Agent to any Lender shall be made by wire transfer, promptly following
the Administrative Agent's receipt of funds for the account of such
Lender and in the type of funds received by the Administrative Agent,
PROVIDED that if the Administrative Agent receives such funds (A) at
or prior to 1:00 p.m., the Administrative Agent shall pay such funds
to such Lender by 2:00 p.m. on such Business Day or (B) after 1:00
p.m., the Administrative Agent shall pay such funds to such Lender
prior to 2:00 p.m. on the following Business Day. If a demand for
payment is made after the applicable time set forth above, the payment
due may be made by 2:00 p.m. on the first Business Day following the
date of such demand.
(ii) If a Lender shall, at any time, fail to make any
payment to the Administrative Agent required hereunder, the
Administrative Agent may, but shall not be required to, retain
payments that would otherwise be made to such Lender hereunder and
apply such payments to such Lender's defaulted obligations hereunder,
at such time, and in such order, as the Administrative Agent may elect
in its sole discretion.
(iii) With respect to the payment of any funds under this
SECTION 5.10(E), whether from the Administrative Agent to a Lender or
from a Lender to the Administrative Agent, the party failing to make
full payment when due pursuant to the terms hereof shall, upon demand
by the other party, pay such amount together with
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interest on such amount at the Federal Funds Effective Rate.
(f) Settlement of Other Secured Obligations. All other amounts
received by the Administrative Agent on account of, or applied by the
Administrative Agent to the payment of, any Secured Obligation owed to the
Lenders (including, without limitation, fees payable to the Lenders pursuant to
SECTIONS 5.2(C) and (D) and proceeds from the sale of, or other realization
upon, all or any part of the Collateral following an Event of Default) that are
received by the Administrative Agent on or prior to 1:00 p.m. on a Business Day
will be paid by the Administrative Agent to each Lender on the same Business
Day, and any such amounts that are received by the Administrative Agent after
1:00 p.m. will be paid by the Administrative Agent to each Lender on the
following Business Day. Unless otherwise stated herein, the Administrative
Agent shall distribute to each Lender such Lender's Proportionate Share of fees
payable to the Lenders pursuant to SECTIONS 5.2(C) and (D) and shall distribute
to each Lender such Lender's Proportionate Share (or if different, such
Lender's share based upon the amount of the Secured Obligations then owing to
each Lender) of the proceeds from the sale of, or other realization upon, all
or any part of the Collateral following an Event of Default.
(g) Allocation of Payments from Borrowers. All monies to be
applied to the Secured Obligations, whether such monies represent voluntary
payments by the Borrowers or are received pursuant to demand for payment or
realized from any disposition of Collateral, shall be allocated among the
Administrative Agent and such of the Lenders and other holders of the Secured
Obligations as are entitled thereto (and, with respect to monies allocated to
the Lenders, on a Ratable basis unless otherwise provided in this
SECTION 5.10(G)): (i) first, to the Administrative Agent to pay the amount of
expenses that have not been reimbursed to the Administrative Agent by the
Borrowers or the Lenders, together with interest accrued thereon; (ii) second,
to the Administrative Agent to pay any indemnified amount that has not been paid
to the Administrative Agent by the Borrowers or the Lenders, together with
interest accrued thereon; (iii) third, to the Administrative Agent to pay any
fees due and payable to the Administrative Agent under this Agreement; (iv)
fourth, to the Lenders for any indemnified amount that they have paid to the
Administrative Agent and for any expenses that they have reimbursed to the
Administrative Agent; (v) fifth, to the Lenders in payment of the unpaid
principal and accrued interest in respect of the Loans and any other Secured
Obligations then outstanding and held by any Lender to be shared among Lenders
on the basis of their respective Facility Percentages as to any payments made
for application to specified Facilities and otherwise a Ratable basis, or on
such other basis as may be agreed upon in writing by all of the Lenders (which
agreement or agreements may be entered into without notice to or the consent or
approval of the Borrowers), and (vi) sixth, to the holders of the other Secured
Obligations who are not Lenders on a pro rata basis. The allocations set forth
in this SECTION 5.10(G) are solely to determine the rights and priorities of the
Administrative Agent and the Lenders as among themselves and may be changed by
the Administrative Agent and the Lenders without notice or the consent of
approval of the Borrowers or any other Person. Whenever allocation is made
pursuant to this SECTION 5.10(G) to the holder
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of Secured Obligations in which another Lender acquires a participation, the
monies received by such holder shall be shared Ratably as between such holder
and such participants.
SECTION 5.11 Prepayments of Loans.
(a) Voluntary Prepayment of Term Loans and Acquisition Loans. The
Borrowers shall have the right at any time and from time to time, upon at least
two Business Days' prior written notice by the Borrowers to the Administrative
Agent, to prepay, without premium or penalty, the Term Loans and the
Acquisition Loans in whole or in part on any Business Day. Each partial
prepayment shall be in a principal amount of not less than $200,000. On the
prepayment date, the Borrowers shall pay interest on the amount prepaid,
accrued to the prepayment date. Any notice of prepayment given by the
Borrowers' Representative hereunder shall be irrevocable, and the amount to be
prepaid (including accrued interest and any amount payable pursuant to SECTION
5.12) shall be due and payable on the date designated in the notice.
(b) Mandatory Prepayments.
(i) Disposition Proceeds; Securities Issues. Unless the
Total Funded Debt to EBITDA Ratio is less than 3.0 to 1 after giving
pro forma effect to the event that would otherwise trigger a
prepayment, as if such event had occurred on the first day of the
latest period of four consecutive Fiscal Quarters ended prior to the
date of determination, the Borrowers shall prepay the Loans from time
to time as follows:
(A) Asset Dispositions. Immediately upon
receipt by the Borrowers or any Subsidiary of the Net
Proceeds of any Asset Disposition, the Borrowers shall apply
such Net Proceeds in prepayment of the Loans as provided in
SECTION 5.11(C); PROVIDED, HOWEVER, that the Borrowers shall
be required to make such prepayment only to the extent that
the Net Proceeds from Asset Dispositions during any Fiscal
Year exceed, in the aggregate, $300,000 and the Borrowers do
not expect such proceeds to be reinvested within 180 days in
productive assets of a kind then used or useable in the
business of the Borrowers and that are not subject to any
Lien other than in favor of the Administrative Agent, for the
benefit of the Lenders; and, PROVIDED FURTHER, that Net
Proceeds of the sale of the assets constituting the Southern
Wood business up to $4,000,000 shall be applied to repay the
Loans in accordance with SECTION 5.11(C) and any such Net
Proceeds in excess of $4,000,000 may be so applied or
reinvested as contemplated in this SECTION 5.11(B)(I)(A). If
the Borrowers anticipate reinvestment of Net Proceeds then
the Borrowers shall deposit such Net Proceeds with the
Administrative Agent to be held as Cash Collateral. Upon the
Borrowers' reinvestment of such proceeds as described above,
the Administrative Agent shall release its Security Interest
in such Cash Collateral in respect of the reinvested funds.
To the extent that the Borrowers fail to reinvest such
proceeds within 180 days as provided above, the Borrowers
authorize and direct the Administrative Agent to apply the
amount of
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the Cash Collateral (in excess of $300,000 in any Fiscal
Year) in respect of the unreinvested amount to the prepayment
of the Loans as provided in SECTION 5.11(C).
(B) Debt or Equity Offerings. In the event that
at any time after the Effective Date, a Borrower or any
Subsidiary issues capital stock or other equity securities or
receives any additional capital contribution in respect of
existing capital stock or other securities or issues Debt
securities or otherwise incurs Debt (in each case other than
from another Loan Party, in connection with the exercise of
stock options held by employees or independent sales
representatives, or as part of the consideration paid to any
seller of an Acquisition Target), the proceeds of which, when
added to all such proceeds received by WinsLoew and its
Subsidiaries since the Effective Date is greater than
$5,000,000 then no later than the third Business Day
following the date of receipt of such proceeds, 100% of such
proceeds, net of underwriting discounts and commissions and
other reasonable costs associated therewith shall be applied
to the prepayment of the Loans as provided in SECTION
5.11(C), provided, that if such net proceeds result from an
IPO, then only 50% thereof is required to be so applied.
(ii) Excess Cash Flow. The Borrowers shall prepay the Loans as
provided in SECTION 5.11(C) annually on or before 120 days after the end of
each Fiscal Year commencing with the Fiscal Year ending December 31, 2000, in
an amount equal to 50% of the Excess Cash Flow for the Fiscal Year most
recently ended, PROVIDED, that, if, after giving pro forma effect to the
proposed payment, the Total Funded Debt to EBITDA Ratio determined as of the
last day of such Fiscal Year is less than 3.0 to 1, then the amount of the
prepayment under this SECTION 5.11(B)(II) shall be 25% of the Excess Cash Flow
for such Fiscal Year.
(iii) Other Prepayments. The Borrowers shall prepay the Loans (and
permanently reduce the Facilities) as provided in SECTION 5.11(C) in an amount
equal to any amount that would otherwise be required to be applied to the
purchase, repayment or prepayment of any Subordinated Debt, including, without
being limited to, pursuant to Section 4.10 of the Senior Note Indenture.
(c) Application of Prepayments. Prepayments pursuant to SECTION
5.11(B) shall be applied first to the outstanding principal of the Term Loan A
and Term Loan B and, if the Acquisition Facility Termination Date has occurred,
the Acquisition Loans, on a pro rata basis and ratably as to the remaining
installments thereof to the extent of such Loans, and then to the outstanding
principal of Term Loan C, EXCEPT that Net Proceeds of (i) Asset Dispositions of
property acquired with the proceeds of Acquisition Loans, will be applied,
whether before or after the Acquisition Facility Termination Date, first to
repay the outstanding principal of the Acquisition Loans ratably as to the
remaining installments (if the Acquisition Facility Termination Date has
occurred) to the extent of such Loans and then pro rata to Term Loan A and Term
Loan B, and after such application, to the outstanding principal of Term Loan C
to the extent thereof
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and (ii) the Borrowers may direct the application of the Net Proceeds of the
disposition of the Southern Xxxxx business to repay such Term Loans and
Acquisition Loans as it may specify, ratably as to remaining installments of
such selected Loans. Payments shall be first applied to Base Rate Loans to the
extent thereof and then to Eurodollar Rate Loans within each Facility and any
payments received which would otherwise result in prepayment of such Eurodollar
Rate Loans prior to the end of the Interest Period applicable thereto may, upon
the request of the Borrowers, in the absence of an Event of Default, be
deposited to the Cash Collateral Account or any Investment Account, with any
excess after prepayment in full of the Loans to be deposited with the
Administrative Agent to be held as Cash Collateral for the Secured Obligations
and after the Termination Date, to be applied to any of the Secured Obligations
in such manner as the Administrative Agent shall determine in its sole
discretion. Any Net Proceeds received after all Term Loans and all Acquisition
Loans have been repaid, shall be applied to repay outstanding Swingline Loans
and then to outstanding Revolving Credit Loans, but without any reduction in
Commitments.
(d) Prepayments from Acquisition Agreement Proceeds. Immediately
upon receipt by a Borrower of any amounts payable as purchase price adjustments
or in payment of claims for indemnification after the Effective Date in
connection with the Acquisition of Pompeii or any other Acquisition, but
excluding amounts applied by such Borrower to the replacement, repair or
restoration of any assets or properties of such BORROWER, or satisfying the
claims made against such Borrower in respect of which it was indemnified, or
otherwise remedying or correcting the condition that gave rise to the
adjustment or claim for indemnification or paying any fees or expenses incurred
by such Borrower to obtain such adjustment or indemnification payment, such
Borrower shall apply such amounts (net of any tax liability attributable
thereto) to the ratable prepayment of Term Loan A, Term Loan B and the
Acquisition Loans, ratably as to the remaining installments thereof, then to
the prepayment of Term Loan C or, if the applicable Acquisition was made with
proceeds of an Acquisition Loan, to the repayment of the Acquisition Loans,
ratably as to the remaining installments thereof, then to the ratable
prepayment of Term Loan A and Term Loan B, ratably as to the remaining
installments thereof, then to the prepayment of Term Loan C.
(e) Certificate. Together with each prepayment pursuant to
SECTION 5.11(B) or (D), the Borrowers shall deliver to the Administrative Agent
a certificate of a Financial Officer setting forth the amount of such
prepayment and certifying that such amount was computed in accordance with the
provisions of this Agreement, and having attached thereto the supporting
calculations, in reasonable detail.
SECTION 5.12 Payments Not at End of Interest Period; Failure to
Borrow. If for any reason any payment of principal with respect to any
Eurodollar Rate Loan is made on any day prior to the last day of the Interest
Period applicable to such Eurodollar Rate Loan or, after having given a Notice
of Borrowing with respect to any Eurodollar Rate Revolving Credit Loan or a
Notice of Conversion or Continuation with respect to any Loan to be continued
as or converted into a Eurodollar Rate Loan, such Loan is not made or is not
continued as or converted into a Eurodollar Rate Loan due to the Borrowers'
failure to borrow or to fulfill the applicable
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conditions set forth in ARTICLE 6, the Borrowers shall pay to each Lender an
amount (if a positive number) computed pursuant to the following formula:
L = (R - T) x P x D
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L = amount payable
R = the Eurodollar Rate applicable to the
Eurodollar Rate Loan unborrowed or prepaid
T = effective interest rate per annum at
which any readily marketable
bonds or other obligations of the United
States, selected at the Administrative
Agent's sole discretion, maturing on or
near the last day of the then applicable or
requested Interest Period for such Loan and
in approximately the same amount as such
Loan, can be purchased by such Lender on
the day of such payment of principal or
failure to borrow
P = the amount of principal paid or the
amount of the requested Loan
D = the number of days remaining in the
Interest Period as of the date
of such payment or the number of days in
the requested Interest Period
The Borrowers shall pay such amount upon presentation by the Administrative
Agent of a statement setting forth the amount and the Administrative Agent's
calculation thereof pursuant hereto, which statement shall be deemed true and
correct absent manifest error.
SECTION 5.13 Assumptions Concerning Funding of Eurodollar Rate Loans.
Calculation of all amounts payable to the Lenders under this ARTICLE 5 shall be
made as though each Lender had actually funded or committed to fund its
Eurodollar Rate Loans through the purchase of an underlying deposit in an
amount equal to the amount of such Ratable share and having a maturity
comparable to the relevant Interest Period for such Eurodollar Rate Loan;
PROVIDED, HOWEVER, each Lender may fund its Eurodollar Rate Loans in any manner
it deems fit and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this ARTICLE 5.
SECTION 5.14 Duration of Interest Periods; Maximum Number of
Eurodollar Rate Loans; Minimum Increments.
(a) Subject to the provisions of the definition "Interest
Period", the duration of each Interest Period applicable to a Eurodollar Rate
Loan shall be as specified in the applicable Notice of Borrowing or Notice of
Conversion or Continuation. The Borrowers may elect a subsequent Interest
Period to be applicable to any Eurodollar Rate Loan by giving a Notice of
Conversion or Continuation with respect to such Loan in accordance with SECTION
5.13.
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(b) If the Administrative Agent does not receive a notice of
election in accordance with SECTION 5.13 with respect to the continuation of a
Eurodollar Rate Loan within the applicable time limits specified in said
SECTION 5.13, or if, when such notice must be given, an Event of Default exists
or Eurodollar Rate Loans are not available, the Borrowers shall be deemed to
have elected to convert such Eurodollar Rate Loan in whole into a Base Rate
Loan on the last day of the Interest Period therefor.
(c) Notwithstanding the foregoing, the Borrowers may not select
an Interest Period that would end, but for the provisions of the definition
"Interest Period", after the Termination Date.
(d) In no event shall there be more than ten Eurodollar Rate Term
Loans, three Eurodollar Rate Acquisition Loans and four Eurodollar Rate
Revolving Credit Loans outstanding hereunder at any time. For the purpose of
this SUBSECTION (D), each Eurodollar Rate Revolving Credit Loan, each
Eurodollar Rate Acquisition Loan and each Eurodollar Rate Term Loan having a
distinct Interest Period shall be deemed to be a separate Loan hereunder.
(e) Each Eurodollar Rate Loan shall be in a minimum amount of
$1,000,000.
SECTION 5.15 Changed Circumstances.
(a) If the introduction of or any change in or in the
interpretation of (in each case, after the date hereof) any law or regulation
makes it unlawful, or any Governmental Authority asserts, after the date
hereof, that it is unlawful, for any Lender to perform its obligations
hereunder to make Eurodollar Rate Loan or to fund or maintain Eurodollar Rate
Loans hereunder, such Lender shall notify the Administrative Agent of such
event and the Administrative Agent shall notify the Borrowers of such event,
and the right of the Borrowers to select a Eurodollar Rate Loan for any
subsequent Interest Period or in connection with any subsequent conversion of
any Loan shall be suspended until the Administrative Agent shall notify the
Borrowers that the circumstances causing such suspension no longer exist, and
the Borrowers shall forthwith prepay in full all Eurodollar Rate Revolving
Credit Loans and, if on or prior to the Acquisition Facility Termination Date,
each Eurodollar Rate Acquisition Loan then outstanding and shall convert each
Eurodollar Rate Term Loan into a Base Rate Term Loan and, if after the
Acquisition Facility Termination Date, shall convert each Eurodollar Rate
Acquisition Loan into a Base Rate Acquisition Loan, and shall pay all interest
accrued thereon through the date of such prepayment or conversion, unless the
Borrowers, within three Business Days after such notice from the Administrative
Agent, request the conversion of all Eurodollar Rate Loans then outstanding
into Base Rate Loans; PROVIDED, that if the date of such repayment or proposed
conversion is not the last day of the Interest Period applicable to such
Eurodollar Rate Loan, the Borrowers shall also pay any amount due pursuant to
SECTION 5.12.
(b) If the Administrative Agent shall, at least one Business Day
before the date of any requested Loan or the effective date of any conversion
or continuation of an existing Loan to be
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made or continued as or converted into a Eurodollar Rate Loan (each such
requested Loan and Loan to be converted or continued, a "Pending Loan"), notify
the Borrowers that the Eurodollar Rate will not adequately reflect the cost to
the Lenders of making or funding such Pending Loan as a Eurodollar Rate Loan or
that the Interbank Offered Rate is not determinable from any interest rate
reporting service of recognized standing, then the right of the Borrowers to
select a Eurodollar Rate Loan for such Pending Loan, any subsequent requested
Loan or in connection with any subsequent conversion or continuation of any
Loan shall be suspended until the Administrative Agent shall notify the
Borrowers that the circumstances causing such suspension no longer exist, and
each Pending Loan and each such subsequent Loan requested to be made, continued
or converted shall be made or continued as or converted into a Base Rate Loan.
(c) 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 Reserve Percentage) in or in the interpretation of,
in each case after the date hereof, any law or regulation (except to the extent
such introduction, change or interpretation affects taxes measured by net
income), or (ii) the compliance with any guideline or request (except to the
extent such guideline or request affects taxes measured by net income) from any
central bank or other governmental authority (whether or not having the force
of law) made after the date hereof, there shall be any increase in the cost to
any Lender of agreeing to make or making, funding or maintaining Eurodollar
Rate Loans (other than as separately provided for in SECTION 5.15(D)), then the
Borrowers shall from time to time, within 30 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 or convert the
Borrowing to which such Eurodollar Rate Loan is a part to Applicable Base Rate
Loans and pay to the Administrative Agent, for the account of such Lender, the
amount due pursuant to SECTION 5.12.
(d) If (i) the adoption of or change in, after the date hereof,
any law, rule, regulation or guideline regarding capital requirements for banks
or bank holding companies, or any change, after the date hereof, in the
interpretation or application thereof by any governmental authority charged
with the interpretation or administration thereof, or (ii) compliance by such
Lender with any guideline, request or directive, made or promulgated after the
date hereof, of any such entity regarding capital adequacy (whether or not
having the force of law), has the effect of reducing the return on a Lender's
capital as a consequence of its maintaining its Loans or commitment to make
Revolving Credit Loans hereunder to a level below that which such Lender could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy
immediately before such adoption, change or compliance and assuming the full
utilization of such Lender's capital immediately before such adoption, change
or compliance) or if any change in law, regulation, treaty or official
directive or the interpretation or application thereof by any court or by any
governmental authority charged with the administration thereof or the
compliance with any guideline or request of any central bank or other
governmental authority (whether or not having the force of law) subjects a
Lender to any tax with respect to
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payments of principal or interest or any other amounts payable hereunder by the
Borrowers or otherwise with respect to the transactions contemplated hereby
(except for taxes on the overall net income of such Lender imposed by the
United States of America or any political subdivision thereof), in each case by
any amount deemed by such Lender to be material, then such Lender shall
promptly after its determination of such occurrence notify the Borrowers and
the Administrative Agent thereof. The Borrowers agree to pay to the
Administrative Agent, for the account of such Lender, as an additional fee from
time to time, within 30 days after demand by such Lender, such amount as such
Lender certifies to be the amount that will compensate it for such reduction.
(e) Before giving any notice pursuant to SECTION 5.15(A) or
making any demand pursuant to SECTION 5.15(C) or (D), each Lender agrees to use
its best efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different lending office if the making of such a
designation would avoid the need for such notice or demand, or reduce the
amount of such increased cost or reduction in return and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
(f) A certificate of the Lender claiming compensation and
accompanying or constituting the "demand" as contemplated by SECTIONS 5.15(c)
and (D) shall be conclusive in the absence of manifest error. Each such
certificate shall set forth the nature of the occurrence giving rise to such
claim for compensation, the additional amount or amounts to be paid to the
Lender hereunder and the method by which such amounts were determined. In
determining such amounts, a Lender may use any reasonable averaging and
attribution methods.
(g) In no event shall a Lender claim or the Borrowers be liable
to pay any amounts pursuant to SECTION 5.15(C) or (D) attributable to periods
more than 90 days prior to the date of the first demand for such amount,
delivered in accordance with the provisions hereof.
SECTION 5.16 Cash Collateral Account; Investment Accounts.
(a) Cash Collateral Account. The Borrowers shall establish a Cash
Collateral Account in which to deposit Collateral consisting of cash or Cash
Equivalents from time to time
(i) representing payments received pursuant to SECTION
5.11 in excess of then outstanding Revolving Credit Loans or on
account of Eurodollar Rate Loans which would otherwise result in
repayment of such Loans prior to the end of the Interest Period
applicable thereto,
(ii) with respect to Letter of Credit Obligations (x) at
the request of the Administrative Agent upon the occurrence of an
Event of Default, or (y) for the purposes set forth in SECTION 5.8 in
the event of termination of this Agreement, or
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(iii) for any other purpose appropriate under this
Agreement to provide security for the Secured Obligations.
On the last day of the applicable Interest Period as to any amounts deposited
to the Cash Collateral Account pursuant to CLAUSE (I) above or if a drawing
under a Letter of Credit occurs with respect to any amounts deposited to the
Cash Collateral Account pursuant to CLAUSE (II) above, the Borrowers hereby
authorize the Administrative Agent to use the monies deposited in the Cash
Collateral Account to make payment to the payee(s) with respect to such Loan or
drawing. The Cash Collateral Account shall be in the name of the Administrative
Agent and the Administrative Agent shall have sole dominion and control over,
and sole access to, the Cash Collateral Account. Neither the Borrowers nor any
Person claiming on behalf of or through the Borrowers shall have any right to
withdraw any of the funds held in the Cash Collateral Account. The Borrowers
agree that they will not at any time (x) sell or otherwise dispose of any
interest in the Cash Collateral Account or any funds held therein or (y) create
or permit to exist any Lien upon or with respect to the Cash Collateral Account
or any funds held therein, except as provided in or contemplated by this
Agreement. The Administrative Agent shall exercise reasonable care in the
custody and preservation of any funds held in the Cash Collateral Account and
shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent
accords other funds deposited with the Administrative Agent, it being
understood that the Administrative Agent shall not have any responsibility for
taking any necessary steps to preserve rights against any parties with respect
to any funds held in the Cash Collateral Account. Subject to the right of the
Administrative Agent to withdraw funds from the Cash Collateral Account as
provided herein, the Administrative Agent will, so long as no Event of Default
shall have occurred and be continuing, from time to time invest funds on
deposit in the Cash Collateral Account, reinvest proceeds of any such
investments which may mature or be sold, and invest interest or other income
received from any such investments, in each case, in Cash Equivalents, as the
Borrowers may direct prior to the occurrence of an Event of Default and as the
Administrative Agent may select after the occurrence and during the continuance
of any Event of Default. Such proceeds, interest and income which are not so
invested or reinvested in Cash Equivalents shall be deposited and held by the
Administrative Agent in the Cash Collateral Account. The Administrative Agent
makes no representation or warranty as to, and shall not be responsible for,
the rate of return, if any, earned on any Cash Collateral. Any earnings on Cash
Collateral shall be held as additional Cash Collateral on the terms set forth
in this SECTION 5.16.
(b) Investment Accounts. The Borrowers may from time to time
establish one or more Investment Accounts with the Administrative Agent, any
Lender or any Affiliate of a Lender, for the purpose of investing solely in
cash or Cash Equivalents any Cash Collateral representing payments received
pursuant to SECTION 5.11 in excess of then outstanding Revolving Credit Loans
or on account of Eurodollar Rate Loans which would otherwise result in
repayment of such Loans prior to the end of the Interest Period applicable
thereto. The Borrowers hereby acknowledge and agree that each such Investment
Account shall constitute Collateral hereunder and shall be maintained with the
Administrative Agent, a Lender or an Affiliate of a Lender as
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security for the Secured Obligations. Notwithstanding the foregoing, until such
time as the Administrative Agent shall otherwise instruct the Lender or
Affiliate of a Lender maintaining such account, the Borrowers shall be entitled
to direct the investment of the funds deposited therein. The Borrowers agree
that they will not at any time (x) sell or otherwise dispose of any interest in
any Investment Account or any funds held therein other than by application
thereof to any Secured Obligation, or (y) create or permit to exist any Lien
upon or with respect to any Investment Account or any funds held therein,
except as provided in or contemplated by this Agreement. The Borrowers agree
that at any time, and from time to time, at the expense of the Borrowers, the
Borrowers will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Administrative Agent or any Lender may request, in order to perfect
and protect any security interest in any Investment Account granted or
purported to be granted hereby or to enable the Administrative Agent, for its
benefit and the benefit of the Lenders, to exercise and enforce its rights and
remedies hereunder with respect to such Investment Account.
SECTION 5.17 Borrowers' Representative. Each other Borrower hereby
irrevocably appoints WinsLoew as its representative, and WinsLoew shall act
under this Agreement as the representative of each Borrower for all purposes,
including, without being limited to, requesting borrowings and receiving
account statements and other notices and communications to the Borrowers (or
any of them) from the Administrative Agent or any Lender. The Administrative
Agent and the Lenders may rely, and shall be fully protected in relying, on any
request for borrowing, disbursement instruction, report, information or any
other notice or communication made or given by WinsLoew, whether in its own
name, on behalf of any other Borrower or on behalf of "the Borrowers," and
neither the Administrative Agent nor any Lender shall have any obligation to
make any inquiry or request any confirmation from or on behalf of any other
Borrower as to the binding effect on it of any such request, instruction,
report, information, notice or communication, nor shall the joint and several
character of the Borrowers' liability for the Secured Obligations be affected.
The Administrative Agent and each Lender intend to maintain a single Loan
Account in the name of "WinsLoew Furniture, Inc." hereunder and each Borrower
expressly agrees to such arrangement and confirms that such arrangement shall
have no effect on the joint and several character of its liability for the
Secured Obligations.
SECTION 5.18 Joint and Several Liability, No Modification or
Release of Obligations.
(a) Joint and Several Liability. The Secured Obligations shall
constitute one joint and several direct and general obligation of all of the
Borrowers. Notwithstanding anything to the contrary contained herein, each of
the Borrowers shall be jointly and severally, with each other Borrower,
directly and unconditionally liable to the Administrative Agent and the Lenders
for all Secured Obligations and shall have the obligations of co-maker with
respect to the Revolving Credit Loans, the Revolving Credit Notes, the Term
Loans, the Term Notes, the Acquisition Loans, the Acquisition Notes and the
Secured Obligations, it being agreed that the advances to each Borrower inure
to the benefit of all Borrowers, and that the Administrative Agent and the
Lenders are relying on the joint and several liability of the Borrowers as
co-makers in extending
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the Loans hereunder. Each Borrower hereby unconditionally and irrevocably
agrees that upon default in the payment when due (whether at stated maturity,
by acceleration or otherwise) of any principal of, or interest on, any
Revolving Credit Loan, Term Loan, Acquisition Loan or other Secured Obligation
payable to the Administrative Agent or any Lender, it will forthwith pay the
same, without notice or demand.
(b) No Modification or Release of Obligations. No payment or
payments made by any of the Borrowers or any other Person or received or
collected by the Administrative Agent or any Lender from any of the Borrowers
or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of
or in payment of the Secured Obligations shall be deemed to modify, release or
otherwise affect the liability of each Borrower under this Agreement, which
shall remain liable for the Secured Obligations until the Secured Obligations
are paid in full and the Revolving Credit Facility is terminated.
SECTION 5.19 Obligations Absolute. Each Borrower agrees that the
Secured Obligations will be paid strictly in accordance with the terms of the
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 or any Lender with respect thereto. All Secured
Obligations shall be conclusively presumed to have been created in reliance
hereon. The liabilities under this Agreement shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of any Loan Documents
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payments of, or in
any other term of, all or any part of the Secured Obligations, or any other
amendment or waiver thereof or any consent to departure therefrom, including,
but not limited to, any increase in the Secured Obligations resulting from the
extension of additional credit to any Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to departure
from any guaranty for all or any of the Secured Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of any Borrower; or
(e) any other circumstance (other than payment) which might
otherwise constitute a defense available to, or a discharge of, any Borrower or
a guarantor.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Secured Obligations is rescinded
or must otherwise be returned by the
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Administrative Agent or any Lender upon the insolvency, bankruptcy or
reorganization of any Borrower or otherwise, all as though such payment had not
been made.
SECTION 5.20 Waiver of Suretyship Defenses. Each Borrower agrees that
the joint and several liability of the Borrowers provided for in SECTION 5.18
shall not be impaired or affected by any modification, supplement, extension or
amendment or any contract or agreement to which the other Borrowers may
hereafter agree (other than an agreement signed by the Administrative Agent and
the Lenders specifically releasing such liability), nor by any delay, extension
of time, renewal, compromise or other indulgence granted by the Administrative
Agent or any Lender with respect to any of the Secured Obligations, nor by any
other agreements or arrangements whatever with the other Borrowers or with
anyone else, each Borrower hereby waiving all notice of such delay, extension,
release, substitution, renewal, compromise or other indulgence, and hereby
consenting to be bound thereby as fully and effectually as if it had expressly
agreed thereto in advance. The liability of each Borrower is direct and
unconditional as to all of the Secured Obligations, and may be enforced without
requiring the Administrative Agent or any Lender first to resort to any other
right, remedy or security. Each Borrower hereby expressly waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Secured Obligations, the Revolving Credit Notes, the Term Notes, the
Acquisition Notes, this Agreement or any other Loan Document (other than as
expressly required in this Agreement or by any of the Loan Documents) and any
requirement that the Administrative Agent or any Lender protect, secure,
perfect or insure any Lien or any property subject thereto or exhaust any right
or take any action against any Borrower or any other Person or any collateral,
including any rights any Borrower may otherwise have under O.C.G.A. ss.
10-7-24.
SECTION 5.21 Defaulting Lender's Status. Notwithstanding anything
contained herein to the contrary, but in addition to provisions regarding the
failure of a Lender to perform its obligations hereunder set forth elsewhere in
this Agreement, so long as any Lender shall be in default of its obligation to
fund its Proportionate Share of any Borrowing or shall have rejected its
Commitment or shall have failed to perform its reimbursement obligations in
favor of the Administrative Agent as set forth in ARTICLE 5 hereof, then such
Lender shall not be entitled to receive any payments of principal of, or
interest on, the Loans or its share of any Commitment, Letter of Credit or
other fees payable hereunder, and for purposes of voting or consenting to
matters with respect to the Loan Documents, such Lender shall be deemed not to
be a "Lender" hereunder and such Lender's Commitment shall be deemed to be zero
($0), unless and until the earlier to occur of (a) all other Secured
Obligations have been paid in full, (b) such failure to fulfill its obligation
to fund is cured and such Lender shall have paid, as and to the extent provided
in this Agreement, to the applicable Person, such amount then owing together
with interest on the amount that such Lender failed to timely fund or (c) the
Secured Obligations under this Agreement shall have been declared or shall have
become immediately due and payable and/or the Revolving Credit Facility and the
Acquisition Facility (if applicable) have been terminated. No Commitment of any
Lender shall be increased or otherwise affected by any such failure or
rejection by any other Lender. Unless such defaulting Lender cures any such
default prior to the
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making of any payment by the Borrowers of any principal or interest hereunder,
any such payment which would, but for this subsection, be paid to such
defaulting Lender, shall (to the fullest extent permitted by Applicable Law) be
paid to the Lenders who shall not be in default under their respective
Commitments and who shall not have rejected any Commitment, for application to
the Loans or to provide cash collateral in such manner and order as shall be
determined by the Administrative Agent; PROVIDED, HOWEVER, that the
Administrative Agent may, but shall not be obligated to, effect a cure of the
defaulting Lender's failure to pay money by retaining payments that would
otherwise be made to such defaulting Lender hereunder and applying such
payments to such defaulting Lender's obligations hereunder, at such time, and
in such order as the Administrative Agent may elect in its sole discretion.
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ARTICLE 6
CONDITIONS PRECEDENT
SECTION 6.1 Conditions Precedent to Initial Loans. Notwithstanding any
other provision of this Agreement, the respective obligations of the Lenders to
make the Initial Loans are subject to the conditions precedent that (a) no
action, proceeding, investigation, regulation or legislation, shall have been
instituted, threatened or proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to obtain substantial
damages in respect of, or which are related to or arise out of, this Agreement,
or the consummation of the transactions contemplated hereby, (b) there shall
not have occurred any event or series of events or group of circumstances which
individually or in the aggregate, in the sole judgment of the Administrative
Agent or the Arranger, would have a Materially Adverse Effect (with reference
to the financial statements referred to in SECTION 7.1(N)), and (c) the
Administrative Agent shall have received on or before the Effective Date the
following, each dated as of such day, in form and substance reasonably
satisfactory to the Administrative Agent, its special counsel and the Arranger
and (except for the Notes) and, at the Administrative Agent's request, in
sufficient copies for each Lender:
(1) Agreement. This Agreement, duly executed and
delivered by the Borrower.
(2) Notes. The Notes, each dated the Effective Date and
duly executed and delivered by the Borrowers.
(3) Articles, Bylaws and Resolutions. Certified copies
of the articles or certificate of incorporation and by-laws or other
constituent documents of each Loan Party as in effect on the Effective
Date and all action, including shareholder approval, if necessary,
taken by each Loan Party and/or their respective shareholders or other
interest holders to authorize the execution, delivery and performance
of this Agreement and the other Loan Documents to which each is a
party and the Borrowings under this Agreement and the execution,
delivery and performance of the Senior Subordinated Note Documents.
(4) Incumbency Certificates. Certificates of incumbency
and specimen signatures with respect to each of the officers of each
Loan Party who is authorized to execute and deliver this Agreement or
any other Loan Document on behalf of such Loan Party or any document,
certificate or instrument to be delivered in connection with this
Agreement or the other Loan Documents and to request Borrowings under
this Agreement.
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(5) Good Standing Certificates. A certificate evidencing
the good standing of each Loan Party in the jurisdiction of its
incorporation and in each other jurisdiction in which it is qualified
as a foreign corporation to transact business.
(6) Financing Statements. The Financing Statements duly
executed and delivered by the Loan Parties.
(7) Notice of Security Interest in Deposit Accounts.
Such notices of Security Interest in Deposit Accounts as shall be
required by the Administrative Agent duly executed by the applicable
Loan Party and the applicable depositary institution where such
accounts are held.
(8) Landlord's and Warehouseman's Waivers. Waiver and
consent agreements duly executed on behalf of each landlord of real
property on which Collateral is located and each warehouseman having
possession of Collateral.
(9) Mortgages. The Mortgages duly executed and delivered
by the applicable Borrower, in proper form for recording in each
appropriate jurisdiction.
(10) Title Insurance. One or more unconditional
commitments for the issuance of mortgagee title insurance policies
with all requirements and conditions to the issuance of the final
policy deleted or marked satisfied, issued by a title insurance
company satisfactory to the Administrative Agent, each in an amount
equal to not less than the fair market value of the Real Estate
subject to the Mortgage insured thereby, insuring that such Mortgage
creates a valid first lien on, and security title to, all Real Estate
described therein, with no survey or other exceptions which the
Administrative Agent shall not have approved in writing.
(11) Real Estate Surveys. Such materials and information
concerning the Real Estate subject to a Mortgage as the Administrative
Agent may require, including, without limitation, (i) true and
accurate surveys satisfactory to the Administrative Agent of all of
the Real Estate, certified to the Administrative Agent and showing the
location of any special flood hazard areas thereon in compliance with
FEMA requirements, (ii) certificates of occupancy covering all of the
Real Estate, and (iii) owner's affidavits or indemnities acceptable to
the title insurance company as to such matters relating to the Real
Estate as the Administrative Agent or title insurance company may
request.
(12) Environmental Reports. A copy of each report listed
on SCHEDULE 6.1(C)(12).
(13) Pledge Agreements. The WinsLoew Pledge Agreement and
the Winston Pledge Agreement duly executed and delivered by WinsLoew
and Winston, respectively, together with all certificates and stock
powers, undated and in blank, constituting Pledged
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Shares (as defined therein) required to be delivered by WinsLoew and
Winston to the Administrative Agent in connection with the execution
and delivery of such agreements.
(14) Trademark Agreement. A Trademark Security Agreement
duly executed and delivered by each of Loewenstein, Pompeii, Winston
and Tropic Craft.
(15) Patent Agreement. A Patent Security Agreement duly
executed and delivered by each of Loewenstein, Pompeii and Winston.
(16) Schedule of Inventory/Receivables. A Schedule of
Inventory and a Schedule of Receivables, each prepared as of August
20, 1999 or a later date.
(17) Evidence of Insurance. Certificates or binders of
insurance relating to (i) each of the policies of insurance covering
any of the Collateral together with loss payable clauses which comply
with the terms of SECTION 9.7(B) and SECTION 10.5, (ii) each of the
policies of insurance required by the Mortgages, as modified by the
modifications, together with mortgagee clauses satisfactory to the
Administrative Agent and (iii) flood insurance with respect to any
improvements to Real Estate located in designated special flood hazard
areas.
(18) Borrowing Base Certificate. A Borrowing Base
Certificate prepared as of August 20, 1999 or a later date duly
executed and delivered by the Financial Officer.
(19) Initial Notice of Borrowing. An Initial Notice of
Borrowing from the Borrowers' Representative to the Administrative
Agent requesting the Initial Loans and specifying the method of
disbursement.
(20) Financial Statements. Copies of all the financial
statements referred to in SECTION 7.1(N) and meeting the requirements
thereof.
(21) Officer's Certificate. A certificate of the
Financial Officer, stating that, to the best of his knowledge and
based on an examination sufficient to enable him to make an informed
statement, (a) all of the representations and warranties made or
deemed to be made under this Agreement are true and correct as of the
Effective Date, both with and without giving effect to the Loans to be
made at such time and the application of the proceeds thereof, and (b)
no Default or Event of Default exists.
(22) Release of Liens. Evidence satisfactory to the
Administrative Agent of the release and termination of (or agreement
to release and terminate) all Liens other than Permitted Liens.
(23) Legal Opinion. A signed opinion of Xxxxxxxxx
Traurig, P.A. counsel for the Borrowers, and such local counsel as the
Administrative Agent shall deem necessary
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or desirable, opining as to such matters in connection with this
Agreement as any Lender or its counsel may reasonably request.
(24) Other Loan Documents. Copies of each of the other
Loan Documents duly executed by the parties thereto with evidence
satisfactory to the Administrative Agent and its counsel of the due
authorization, binding effect and enforceability of each such Loan
Document on each such party and such other documents and instruments
as the Administrative Agent may reasonably request.
(25) Solvency. The Borrowers shall have delivered to the
Administrative Agent a certificate executed by the Financial Officer,
in form and substance satisfactory to the Administrative Agent,
certifying that after giving effect to the Indebtedness represented by
the Loans outstanding and to be incurred, the transactions
contemplated by this Agreement, the WinsLoew Merger Agreement and the
WinsLoew Merger Documents, and the Senior Subordinated Note Documents,
each Borrower and each of its Subsidiaries is solvent, having assets
of a fair salable value which exceeds the amount required to pay its
debts as they become absolute and matured (including contingent,
subordinated, unmatured and unliquidated liabilities), and such
Borrower and each of its Subsidiaries is able to and anticipates that
it will be able to meet its debts as they mature and has adequate
capital to conduct the business in which it is or proposes to be
engaged.
(26) Funded Debt to EBITDA. On or before the Effective
Date, the Administrative Agent shall have received evidence
satisfactory to it that the ratio of (i) Funded Debt of WinsLoew and
its Consolidated Subsidiaries (determined on a consolidated pro forma
basis giving effect to the transactions contemplated hereby to be
consummated on the Effective Date and adjusted to reflect the average
working capital of WinsLoew and its Consolidated Subsidiaries) to (ii)
pro forma EBITDA of WinsLoew and its Consolidated Subsidiaries
(determined on a consolidated basis) for the twelve month period ended
June 25, 1999, does not exceed 5.5 to 1.
(27) Capitalization. After giving effect to the
transactions contemplated by the WinsLoew Merger Documents, the Senior
Subordinated Note Documents and this Agreement, (i) the Borrowers
shall have received the funds and applied the funds as set forth in
SCHEDULE 6.1(C)(27) hereto, and (ii) except as expressly contemplated
by this Agreement, no Restricted Payments or Restricted Distributions
shall have been made or committed to be made as of the Effective Date
and the Administrative Agent shall have received a certificate from
the Financial Officer to such effect.
(28) Fees. The Borrowers shall have paid all of the fees
payable on the Effective Date provided for or referred to herein.
(29) Security Interests. The Administrative Agent shall
have received satisfactory evidence that the Administrative Agent (for
the benefit of Lenders) has a valid
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and perfected first priority security interest as of such date in all
of the Collateral, subject only to Permitted Liens.
(30) WinsLoew Merger. On the Effective Date, (i) the
Administrative Agent shall have received true and complete executed or
conformed copies of the WinsLoew Merger Documents and any amendments
thereto; (ii) the WinsLoew Merger Documents shall be in full force and
effect and no material term or condition thereof shall have been
amended, modified or waived after the execution thereof (other than
solely to extend the date by which the WinsLoew Merger is required to
occur) except with the prior written consent of the Administrative
Agent; (iii) none of the parties to any of the WinsLoew Merger
Documents shall have failed to perform any material obligation or
covenant required by such WinsLoew Merger Document to be performed or
complied with by it on or before the Effective Date; (iv) all
representations and warranties of the parties thereto contained in the
WinsLoew Merger Agreement and the other WinsLoew Merger Documents
shall be true and correct in all material respects with the same
effect as though made on and as of the Effective Date; (v) all
requisite approvals by governmental authorities and regulatory bodies
having jurisdiction over the parties to the WinsLoew Merger Agreement
in respect of the WinsLoew Merger shall have been obtained and be in
full force and effect (other than any such approvals failure to obtain
which could not reasonably be expected, in the Administrative Agent's
sole judgment, to have a Materially Adverse Effect), and no such
approvals shall impose any conditions to the consummation of the
WinsLoew Merger; (vi) the WinsLoew Merger Contribution shall have been
made (but for up to $500,000 to be contributed within 10 days after
the Effective Date) and the WinsLoew Merger shall have been
consummated in accordance with the terms and provisions of the
WinsLoew Merger Agreement and the other WinsLoew Merger Documents,
without any amendment or waiver of any material provision thereof; and
(vii) the Administrative Agent shall have received a certificate from
the Financial Officer or other evidence satisfactory to it that each
of the conditions set forth in CLAUSES (I) through (VI) above have
been satisfied. In addition, all opinion letters delivered in
connection with the WinsLoew Merger Documents and the transactions
contemplated thereby shall be addressed to the Administrative Agent,
for the benefit of the Lenders, or accompanied by a written
authorization from the firm delivering such opinion letter stating
that the Administrative Agent, for the benefit of the Lenders, may
rely on such opinion letter as though it were addressed to it.
(31) Senior Subordinated Note Transaction. On the
Effective Date, the Administrative Agent shall have received a fully
executed copy of each of the Senior Subordinated Note Documents
certified by the Financial Officer as being in the same form as the
final drafts thereof furnished to the Administrative Agent prior to
the Effective Date and approved by it. The Administrative Agent shall
also have received evidence satisfactory to it that the transactions
contemplated by the Senior Subordinated Note Documents to be
consummated on or prior to the Effective Date have been consummated
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in accordance with the terms thereof without any waiver of any
condition precedent to any party's obligations thereunder or waiver of
any material provisions thereof other than such waivers to which the
Administrative Agent has consented.
SECTION 6.2 Additional Conditions to Acquisition Loans. The
obligations of the Lenders to honor the Borrowers' request for any Acquisition
Loan after the Effective Date and on or prior to the Acquisition Facility
Termination Date is subject to Administrative Agent's receipt, at least two
Business Days prior to the date such Acquisition Loan is requested to be made,
of a Notice of Borrowing substantially in the form of EXHIBIT E-3, properly
completed, and to the satisfaction (or waiver by the Administrative Agent and
the Required Lenders) of the following conditions with respect to each
Acquisition Loan:
(a) at least 14 days prior to the closing date for a proposed
Acquisition, the Borrowers shall provide to the Administrative Agent and the
Lenders notice of such proposed Acquisition together with an information
package containing the following documents and confirmation that the other
conditions set forth in this SECTION 6.2 have been or will on the closing date
for such proposed Acquisition be satisfied:
(i) the purchase agreement and all other material
documents and agreements relating to such proposed Acquisition in
substantially final form,
(ii) all such information as may be necessary to enable
the Administrative Agent, for the benefit of the Lenders, to obtain a
first priority, perfected security interest (subject only to Permitted
Liens) in all of the assets to be acquired from or owned by the
Acquisition Target immediately upon consummation of the proposed
Acquisition, and
(iii) copies of lien search results for each jurisdiction
in which the Acquisition Target is located, in which the chief
executive office of the Acquisition Target is located, or in which the
Acquisition Target has assets;
(b) the purchase price for the Acquisition Target (including
without limitation all Indebtedness assumed by any Borrower and all obligations
associated with consulting and non-compete agreements entered into by any
Borrower), after taking into account reasonably anticipated purchase price
adjustments, is less than or equal to $25,000,000;
(c) the proposed Acquisition is an arm's length transaction
whereby a Borrower will (i) own directly or indirectly all of the equity
interest in such Acquisition Target and will control a majority of any voting
securities, or will otherwise control the governance of such Acquisition Target
or (ii) acquire a Business Unit;
(d) at the time of the proposed Acquisition, the Acquisition
Target shall be in the business of designing, manufacturing or distributing
furniture and a majority of the board of
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directors or managers or owners of a majority of the equity interests in the
Acquisition Target shall have approved the transaction;
(e) at least 14 days prior to the consummation of the proposed
Acquisition, the Borrowers shall have demonstrated, in a manner satisfactory to
the Administrative Agent in its reasonable judgment, (i) positive trailing
four-quarter pro forma net income before provision for income taxes, interest
expense, depreciation, or amortization of the Acquisition Target ("Target
EBITDA") and (ii) compliance by WinsLoew and its Consolidated Subsidiaries with
the terms and provisions of this Agreement on a pro forma basis after giving
effect to the proposed Acquisition as if it had been consummated on the first
day of the four-Fiscal Quarter period then most recently ended, PROVIDED that
any pro forma adjustments to historical Target EBITDA shall be acceptable to
the Administrative Agent in its reasonable credit judgment, EXCEPT that
contractual and adequately documented reductions in former owners' compensation
or rental expense of the Acquisition Target, which will be effective as of the
closing date of the proposed Acquisition, shall be acceptable;
(f) at least 14 days prior to the consummation of such
Acquisition, the Administrative Agent shall have received such appraisals of
assets to be acquired as the Administrative Agent in the exercise of its
reasonable credit judgment deems material and environmental site assessments,
in form and substance satisfactory to the Administrative Agent and the Lenders,
with respect to any real property is owned by the Acquisition Target or
operated by the Acquisition Target as a manufacturing facility;
(g) no Debt shall be incurred or assumed by any Borrower or the
Acquisition Target in connection with or as a result of such proposed
Acquisition unless such Debt is unsecured, the interest rate thereon does not
exceed the interest rate on the Senior Subordinated Notes, any agreements
governing such Debt contain no financial covenants, the first scheduled
principal repayment thereunder (under all circumstances) is later than June 30,
2006 (or any later date to which the Termination Date may have been extended),
and repayment thereof is subordinated, at least to the same extent as the
Senior Subordinated Notes, to the prior repayment in full in cash of the
Secured Obligations;
(h) the conditions set forth in SECTIONS 6.1(A) and (B), and
SECTIONS 6.1(C)(2), (3), (4), (5), and (6) as to Acquisition Target and the
applicable Borrower(s), and such other conditions set forth in SECTION 6.1(c)
as the Administrative Agent may determine are applicable, shall have been
satisfied on and as of the closing date of the proposed Acquisition and the
Administrative Agent shall have received such additional instruments,
certificates and other documents, including opinions of counsel, as may be
usual or customary in connection with similar acquisitions and as the
Administrative Agent may reasonably request;
(i) in the case of an Acquisition of stock or other equity
interests, the Acquisition Target shall be merged with and into a Borrower or
the Acquisition Target shall have executed and delivered the Subsidiaries
Guaranty (or an effective joinder agreement with respect thereto)
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and a Guarantor Security Agreement unless the Borrowers and the Administrative
Agent have agreed that the Acquisition Target is to become an additional
Borrower, in which case the Acquisition Target and the other Borrowers shall
have duly executed and delivered such acknowledgment or amendment to this
Agreement and such additions to or replacements of outstanding Notes as the
Administrative Agent may require evidencing the Acquisition Target's joint and
several liability for the Secured Obligations as a Borrower under this
Agreement;
(j) the Administrative Agent, for itself and on behalf of the
Lenders, shall have a first priority Lien (subject only to Permitted Liens) on
the assets of the Acquisition Target or otherwise acquired in connection with
such Acquisition (other than any such Lien as to which the Administrative Agent
determines in writing that the benefit thereof is not sufficient to justify the
cost of obtaining and perfecting such Lien); and
(k) at the time of and after giving effect to the proposed
Acquisition, no Default or Event of Default shall exist.
SECTION 6.3 All Loans and Letters of Credit. At the time of making of
each Loan, including the Initial Loans and all subsequent Loans, and the
issuance of each Letter of Credit:
(a) all of the representations and warranties made or deemed to
be made under this Agreement shall be true and correct in all material respects
at such time both with and without giving effect to the Loans to be made at
such time and the application of the proceeds thereof (except to the extent any
such representation or warranty is made exclusively with reference to an
earlier date), and
(b) the corporate actions of the Borrowers referred to in SECTION
6.1(C)(3) shall remain in full force and effect and the incumbency of officers
shall be as stated in the certificates of incumbency delivered pursuant to
SECTION 6.1(C)(4) or as subsequently modified and reflected in a certificate of
incumbency delivered to the Administrative Agent.
Each request or deemed request for any Borrowing hereunder shall be deemed to
be a certification by the Borrowers to the Administrative Agent and the Lenders
as to the matters set forth in SECTION 6.3(A) and (B) and the Administrative
Agent may, without waiving either condition, consider the conditions specified
in SECTIONS 6.3(A) and (B) fulfilled and a representation by the Borrowers to
such effect made, if no written notice to the contrary is received by the
Administrative Agent prior to the making of the Loan then to be made.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BORROWER
SECTION 7.1 Representations and Warranties. Each Borrower represents
and warrants to the Administrative Agent and to the Lenders as follows:
(a) Organization; Power; Qualification. Such Borrower and each of
its Subsidiaries is a corporation, duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, having the power
and authority to own its properties and to carry on its business as now being
and hereafter proposed to be conducted and is duly qualified and authorized to
do business in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification or authorization except
to the extent its failure to be so qualified could not reasonably be expected
to have a Materially Adverse Effect. The jurisdictions in which each Borrower
and each of its Subsidiaries is qualified to do business as a foreign
corporation are listed on SCHEDULE 7.1(A).
(b) Capitalization; Shareholder Agreements. The outstanding
capital stock of such Borrower has been duly and validly issued and is fully
paid and nonassessable, and the number and owners of such shares of capital
stock of such Borrower are set forth on SCHEDULE 7.1(B). The issuance and sale
of such Borrower's capital stock have been registered or qualified under
applicable federal and state securities laws or are exempt therefrom. Except as
set forth on SCHEDULE 7.1(B), there are no shareholders agreements, options,
subscription agreements or other agreements or understandings to which such
Borrower is a party in effect with respect to the capital stock of such
Borrower, including, without limitation, agreements providing for special
voting requirements or arrangements for approval of corporate actions or other
matters relating to corporate governance or restrictions on share transfer or
providing for the issuance of any securities convertible into shares of the
capital stock of such Borrower, any warrants or other rights to acquire any
shares or securities convertible into such shares, or any agreement that
obligates such Borrower, either by its terms or at the election of any other
Person, to repurchase such shares under any circumstances.
(c) Subsidiaries. SCHEDULE 7.1(C) correctly sets forth the name
of each Subsidiary of such Borrower, its jurisdiction of incorporation, the
name of its immediate parent or parents, and the percentage of its issued and
outstanding securities owned by such Borrower or any other Subsidiary of such
Borrower and indicating whether such Subsidiary is a Consolidated Subsidiary.
Except as set forth on SCHEDULE 7.1(C),
(i) no Subsidiary of such Borrower has issued any
securities convertible into shares of such Subsidiary's capital stock
or any options, warrants or other rights to acquire any shares or
securities convertible into such shares,
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(ii) the outstanding stock and securities of each
Subsidiary of such Borrower are owned by such Borrower or a Wholly
Owned Subsidiary of such Borrower, or by such Borrower and one or more
of its Wholly Owned Subsidiaries, free and clear of all Liens,
warrants, options and rights of others of any kind whatsoever, and
(iii) such Borrower has no Subsidiaries.
The outstanding capital stock of each Subsidiary of such Borrower has been duly
and validly issued and is fully paid and nonassessable by the issuer, and the
number and owners of the shares of such capital stock are set forth on SCHEDULE
7.1(C).
(d) Authorization of Agreement, Notes, Loan Documents and
Borrowing. Such Borrower has the right and power, and has taken all necessary
action to authorize it, to execute, deliver and perform this Agreement and each
of the Loan Documents, to which it is a party, in accordance with their
respective terms. This Agreement and each of the Loan Documents, to which it is
a party, have been duly executed and delivered by the duly authorized officers
of such Borrower and each is, or each when executed and delivered in accordance
with this Agreement will be, a legal, valid and binding obligation of such
Borrower, enforceable in accordance with its terms.
(e) Compliance of Agreement, Notes, Loan Documents and Borrowing
with Laws, Etc. Except as set forth on SCHEDULE 7.1(E), the execution, delivery
and performance of this Agreement and each of the Loan Documents in accordance
with their respective terms and the borrowings hereunder do not and will not,
by the passage of time, the giving of notice or otherwise,
(i) require any Governmental Approval or violate any
Applicable Law relating to such Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation, articles
of organization, by-laws, operating agreement or any shareholders'
agreement or other constituent documents of such Borrower or any of
its Subsidiaries,
(iii) conflict with, result in a breach of or constitute a
default under any material provisions of any indenture, agreement or
other instrument to which such Borrower or any of its Subsidiaries is
a party or by which such Borrower, any of its Subsidiaries or any of
such Borrower's or such Subsidiaries' property may be bound or any
material Governmental Approval relating to such Borrower or any of its
Subsidiaries, or
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(iv) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter
acquired by such Borrower other than the Security Interest.
(f) Business. The Borrowers are engaged principally in the
business of designing, manufacturing and distributing furniture.
(g) Compliance with Law; Governmental Approvals.
(i) Except as set forth in SCHEDULE 7.1(G), such
Borrower and each of its Subsidiaries
(A) has all Governmental Approvals, including
permits relating to federal, state and local Environmental
Laws, ordinances and regulations, required by any Applicable
Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on
appeal and is not the subject of any pending or, to the
knowledge of such Borrower, threatened attack by direct or
collateral proceeding, and
(B) is in compliance with each Governmental
Approval applicable to it and in compliance with all other
Applicable Laws relating to it, including, without being
limited to, all Environmental Laws and all occupational
health and safety laws applicable to such Borrower, any of
its Subsidiaries or their respective properties,
except for instances of noncompliance which would not, singly or in
the aggregate, cause a Default or Event of Default or have a
Materially Adverse Effect and in respect of which reserves in respect
of such Borrower's or such Subsidiary's reasonably anticipated
liability have been established on the books of such Borrower or such
Subsidiary, as applicable.
(ii) Without limiting the generality of the above, except
as disclosed on a report delivered pursuant to SECTION 6.1(C)(12) or
with respect to matters which could not reasonably be expected to
have, singly or in the aggregate, a Materially Adverse Effect:
(A) the operations of such Borrower and each of
its Subsidiaries comply in all material respects with all
applicable environmental, health and safety requirements of
Applicable Law;
(B) such Borrower and each of its Subsidiaries
has obtained all environmental, health and safety permits
necessary for its operation, and all such permits are in good
standing and such Borrower and each of its Subsidiaries is in
compliance in all material respects with all terms and
conditions of such permits;
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(C) neither such Borrower nor any of its
Subsidiaries nor any of their respective present or past
property or operations are subject to any order from or
agreement with any public authority or private party
respecting (x) any environmental, health or safety
requirements of Applicable Law, (y) any Remedial Action, or
(z) any liabilities and costs arising from the Release or
threatened Release of a Contaminant into the environment;
(D) none of the operations of such Borrower or
of any of its Subsidiaries is subject to any judicial or
administrative proceeding alleging a violation of any
environmental, health or safety requirement of Applicable
Law;
(E) none of the present or past operations of
such Borrower or any of its Subsidiaries is the subject of
any investigation by any public authority evaluating whether
any Remedial Action is needed to respond to a Release or
threatened Release of a Contaminant into the environment;
(F) neither such Borrower nor any of its
Subsidiaries has filed any notice under any requirement of
Applicable Law indicating past or present treatment, storage
or disposal of a hazardous waste, as that term is defined
under 40 CFR Part 261 or any state equivalent;
(G) neither such Borrower nor any of its
Subsidiaries has filed any notice under any requirement of
Applicable Law reporting a Release of a Contaminant into the
environment;
(H) except in compliance in all material
respects with applicable Environmental Laws, during the
course of such Borrower's or any of its Subsidiaries'
ownership of or operations on the Real Estate, there has been
no (1) generation, treatment, recycling, storage or disposal
of hazardous waste, as that term is defined under 40 CFR Part
261 or any state equivalent, (2) use of underground storage
tanks or surface impoundments, (3) use of asbestos-containing
materials, or (4) use of polychlorinated biphenyls (PCBs)
used in hydraulic oils, electrical transformers or other
equipment;
(I) neither such Borrower nor any of its
Subsidiaries has entered into any negotiations or agreements
with any Person (including, without limitation, any prior
owner of any of the Real Estate or other property of such
Borrower or any of its Subsidiaries) relating to any Remedial
Action or environment-related claim;
(J) neither such Borrower nor any of its
Subsidiaries has received any notice or claim to the effect
that it is or may be liable to any Person as a result of the
Release or threatened Release of a Contaminant into the
environment;
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(K) neither such Borrower nor any of its
Subsidiaries has any material contingent liability in
connection with any Release or threatened Release of any
Contaminant into the environment;
(L) no Environmental Lien has attached to any
of the Real Estate or other property of such Borrower or of
any of its Subsidiaries;
(M) the presence and condition of all
asbestos-containing material which is on or part of the Real
Estate (excluding any raw materials used in the manufacture
of products or products themselves) do not violate in any
material respect any currently applicable requirement of
Applicable Law; and
(N) neither such Borrower nor any of its
Subsidiaries manufactures, distributes or sells, and has
never manufactured, distributed or sold, products which
contain asbestos-containing material.
(iii) Such Borrower has notified the Lenders and the
Administrative Agent of the receipt by such Borrower or by any of its
Subsidiaries of any written notice of a material violation of any
Environmental Laws and occupational health and safety laws applicable
to such Borrower, any of its Subsidiaries or any of their respective
properties.
(h) Title to Properties. Except as set forth in SCHEDULE 7.1(H),
such Borrower and each of its Subsidiaries has valid and legal title to or
leasehold interest in all material personal property, Real Estate and other
assets used in its business, including, but not limited to, those reflected on
the most recent balance sheet of such Borrower delivered pursuant to SECTION
7.1(N).
(i) Liens. Except as set forth in SCHEDULE 7.1(I), none of the
properties and assets of such Borrower or any Subsidiary of such Borrower is
subject to any Lien, except Permitted Liens. Other than the Financing
Statements, to the best knowledge of such Borrower (after due investigation) no
financing statement under the Uniform Commercial Code of any State or other
instrument evidencing a Lien which names such Borrower or any Subsidiary of
such Borrower as debtor has been filed (and has not been terminated or will not
be terminated as a result of the transactions to occur on the Effective Date)
in any state or other jurisdiction, and neither such Borrower nor any
Subsidiary of such Borrower has signed any such financing statement or other
instrument or any security agreement authorizing any secured party thereunder
to file any such financing statement or instrument, except to perfect those
Liens listed on SCHEDULE 7.1(I).
(j) Debt and Guaranties. SCHEDULE 7.1(J) is a complete and
correct listing of all (i) Debt and (ii) Guaranties of each of such Borrower
and each of its Subsidiaries. Each of such Borrower and its Subsidiaries has
performed and is in compliance with all of the terms of such Debt and
Guaranties and all instruments and agreements relating thereto, and no default
or event
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of default, or event or condition which with notice or lapse of time, or both,
would constitute such a default or event of default, exists with respect to any
such Indebtedness or Guaranty.
(k) Litigation. Except as set forth on SCHEDULE 7.1(K), there are
no actions, suits or proceedings pending (nor, to the knowledge of such
Borrower, are there any actions, suits or proceedings threatened, or any
reasonable basis therefor) against or in any other way relating to or affecting
such Borrower or such Subsidiaries or any of such Borrower's or any of its
Subsidiaries' properties in any court or before any arbitrator of any kind or
before or by any governmental body, except actions, suits or proceedings of the
character normally incident to the kind of business conducted by such Borrower
or any of its Subsidiaries which, if adversely determined, would not singly or
in the aggregate have a Materially Adverse Effect, and there are no strikes or
walkouts in progress, pending or to the Borrowers' knowledge contemplated
relating to any labor contracts to which such Borrower or any of its
Subsidiaries is a party, relating to any labor contracts being negotiated, or
otherwise.
(l) Tax Returns and Payments. Except as set forth on SCHEDULE
7.1(L), all federal, state and local as well as foreign national, provincial
and local and other tax returns of such Borrower and each of its Subsidiaries
required by Applicable Law to be filed have been duly filed, and all federal,
state and local and foreign national, provincial and local and other taxes,
assessments and other governmental charges or levies upon such Borrower and
each of its Subsidiaries and such Borrower's and any of its Subsidiaries'
property, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time permitted under Section 10.6.
The charges, accruals and reserves on the books of such Borrower and each of
its Subsidiaries in respect of federal, state and local and foreign national,
provincial and local taxes for all Fiscal Years and portions thereof since the
organization of such Borrower are in the judgment of such Borrower adequate,
and such Borrower knows of no reason to anticipate any additional assessments
for any of such years which, singly or in the aggregate, might have a
Materially Adverse Effect on such Borrower.
(m) Burdensome Provisions. Neither such Borrower nor any of its
Subsidiaries is a party to any indenture, agreement, lease or other instrument,
or subject to any charter or corporate restriction, Governmental Approval or
Applicable Law compliance with the terms of which could reasonably be expected
to have a Materially Adverse Effect.
(n) Financial Statements.
(i) WinsLoew has furnished to the Administrative Agent
and the Lenders copies of the audited consolidated financial
statements of WinsLoew and its Consolidated Subsidiaries as of
December 31, 1998 and of the unaudited consolidated balance sheet of
WinsLoew and its Consolidated Subsidiaries as at June 25, 1999 and the
related statements of income for the two-Fiscal Quarter period then
ended, which financial statements present fairly in all material
respects in accordance with GAAP consistently applied (except, in the
case of the interim statements, for the absence of notes and subject
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to year end audit adjustments), the financial position of the
Borrowers as at their respective dates, and the results of operations
of the Borrowers for the periods then ended.
(ii) WinsLoew has furnished to the Administrative Agent
and the Lenders copies of the Pro Forma. The Pro Forma presents
fairly, on a pro forma basis, the financial position of the Borrowers
as at the Effective Date.
(iii) WinsLoew has furnished to the Administrative Agent
and the Lenders copies of the Projections. The Projections have been
prepared by WinsLoew in light of the past operations of the business
of WinsLoew and its Consolidated Subsidiaries and represent as of the
respective dates thereof the good faith opinion of WinsLoew and its
senior management concerning the most probable course of business of
WinsLoew and its Consolidated Subsidiaries.
(iv) Except as disclosed or reflected in the financial
statements described in CLAUSES (I) and (II) above, the Borrowers do
not have any material liabilities, contingent or otherwise, and there
were no material unrealized or anticipated losses of the Borrowers.
(o) Adverse Change. Since the date of the last audited financial
statements of the Borrowers delivered to the Administrative Agent pursuant to
SECTION 7.1(N)(I), after giving effect to the transactions reflected in the Pro
Forma, no event has occurred or failed to occur which has had, or may have,
singly or in the aggregate, a Materially Adverse Effect.
(p) ERISA. Neither such Borrower nor any Related Company
maintains or contributes to any Benefit Plan other than those listed on
SCHEDULE 7.1(P). Except as set forth on SCHEDULE 7.1(P), each Benefit Plan is
in substantial compliance with ERISA and the Code, including but not limited to
those provisions thereof relating to reporting and disclosure, and neither the
Borrower nor any Related Company has received any notice asserting that a
Benefit Plan is not in compliance with ERISA. No material liability to the PBGC
or to any Multiemployer Plan has been, or is expected to be, incurred by such
Borrower or any Related Company. Except as set forth on SCHEDULE 7.1(p), each
Benefit Plan intended to qualify under Section 401(a) of the Code so qualifies
and any related trust is exempt from federal income tax under Section 501(a) of
the Code, a favorable determination letter from the IRS has been issued or
applied for with respect to each such Benefit Plan and related trust and
nothing that has occurred since the date of such determination letter that
would adversely affect such qualification or tax-exempt status. No Benefit Plan
subject to the minimum funding standards of the Code has failed to meet such
standards. Neither such Borrower nor any Related Company has transferred any
pension plan liability in a transaction that could be subject to Sections 4069
or 4212(C) of ERISA. Except as set forth on SCHEDULE 7.1(P), neither such
Borrower nor any Related Company has any liability, actual or contingent, with
respect to any Benefit Plan in accordance with its terms, and there are no
pending or threatened claims against a Benefit Plan other than claims for
benefits. No non-exempt prohibited transaction within the meaning of Section
4975 of the Code or Section 406 of
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ERISA has occurred with respect to a Benefit Plan. Except as set forth on
SCHEDULE 7.1(P), no employee or former employee of such Borrower or any Related
Company is or may become entitled to any benefit under a Benefit Plan that is a
"welfare plan" within the meaning of Section 3(1) of ERISA following such
employee's termination of employment other than continuation of group health
coverage in accordance with Section 4980B of the Code and Sections 601 through
609 of ERISA. Except as set forth on SCHEDULE 7.1(P), each such welfare plan
that is a group health plan has been operated in compliance with the provisions
of Section 4980B of the Code and Sections 601-609 of ERISA and any applicable
provisions of state law that are similar.
(q) Absence of Defaults. Neither such Borrower nor any of its
Subsidiaries is in default under its articles or certificate of incorporation
or by-laws or other constituent document and no event has occurred, which has
not been remedied, cured or waived,
(i) which constitutes a Default or an Event of Default,
or
(ii) which constitutes, or which with the passage of time
or giving of notice, or both, would constitute, a default or event of
default by such Borrower or any of its Subsidiaries under any material
agreement (other than this Agreement) or judgment, decree or order to
which such Borrower or any of its Subsidiaries is a party or by which
such Borrower, any of its Subsidiaries or any of such Borrower's or
any of its Subsidiaries' properties may be bound or which would
require such Borrower or any of its Subsidiaries to pay any Debt under
any such material agreement or judgment, decree or order prior to the
scheduled maturity date therefor, except, in the case only of any such
agreement, for alleged defaults which are being contested in good
faith by appropriate proceedings and with respect to which reserves in
respect of such Borrower's or such Subsidiary's reasonably anticipated
liability have been established on the books of such Borrower or such
Subsidiary.
(r) Accuracy and Completeness of Information.
(i) All written information, reports and other papers
and data produced by or on behalf of a Borrower and furnished to the
Administrative Agent or any Lender were, at the time the same were so
furnished, complete and correct in all material respects, to the
extent necessary to give the recipient a true and accurate knowledge
of the subject matter. No fact is known to any Borrower which has had,
or in the future reasonably could be expected to have (so far as such
Borrower can foresee), a Materially Adverse Effect, which has not been
set forth in the financial statements or disclosure delivered prior to
the Effective Date, in each case referred to in SECTION 7.1(N), or in
such written information, reports or other papers or data or otherwise
disclosed in writing to the Administrative Agent and the Lenders prior
to the Agreement Date.
(ii) No Borrower has any actual knowledge that any
document furnished or written statement made to the Administrative
Agent or any Lender by any Person other
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than a Borrower (a copy of which has been furnished to WinsLoew) in
connection with the negotiation, preparation or execution of this
Agreement or any of the Loan Documents contained any incorrect
statement of a material fact or omitted to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
(s) Solvency. In each case after giving effect to the Debt
represented by the Loans outstanding and to be incurred, the transactions
contemplated by this Agreement, the Senior Note Indenture and the WinsLoew
Merger Agreement, such Borrower and each of its Subsidiaries is solvent, having
assets of a fair salable value which exceeds the amount required to pay its
debts as they become absolute and matured (including contingent, subordinated,
unmatured and unliquidated liabilities), and such Borrower and each of its
Subsidiaries is able to and anticipates that it will be able to meet its debts
as they mature and has adequate capital to conduct the business in which it is
or proposes to be engaged.
(t) Receivables.
(i) Status.
(A) Each Receivable reflected in the
computations included in any Borrowing Base Certificate meets
the criteria enumerated in CLAUSES (A) through (P) of the
definition of Eligible Receivables, except as disclosed in
such Borrowing Base Certificate or as disclosed in a timely
manner in a subsequent Borrowing Base Certificate or
otherwise in writing to the Administrative Agent.
(B) Such Borrower has no knowledge of any fact
or circumstance not disclosed to the Administrative Agent in
a Borrowing Base Certificate or otherwise in writing which
would impair the validity or collectibility of any Eligible
Receivable of $250,000 or more or of Eligible Receivables
which (regardless of the individual amount thereof) aggregate
$500,000 or more.
(ii) Chief Executive Office. The chief executive office
of such Borrower and the books and records relating to the Receivables
are located at the address or addresses set forth on SCHEDULE 7.1(T);
such Borrower has not maintained its chief executive office or books
and records relating to any Receivables at any other address at any
time during the five years immediately preceding the Agreement Date
except as disclosed on SCHEDULE 7.1(T).
(u) Inventory.
(i) Schedule of Inventory. All Inventory included in any
Schedule of Inventory or Borrowing Base Certificate delivered to the
Administrative Agent pursuant to Section 9.11 meets the criteria
enumerated in clauses (A) through (H) of the definition
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of Eligible Inventory, except as disclosed in such Schedule of
Inventory or Borrowing Base Certificate or in a subsequent Schedule of
Inventory or Borrowing Base Certificate, or as otherwise specifically
disclosed in writing to the Administrative Agent.
(ii) Condition. All Inventory is in good condition, meets
in all material respects the standards imposed by any governmental
agency, or department or division thereof, having regulatory authority
over such goods, their use or sale, and is currently either usable or
salable in the normal course of such Borrower's business, except to
the extent reserved against in the financial statements referred to in
SECTION 7.1(N) or delivered pursuant to ARTICLE 11 or as disclosed on
a Schedule of Inventory delivered to the Administrative Agent pursuant
to SECTION 9.11(B).
(iii) Location. All Inventory is located on the premises
set forth on SCHEDULE 7.1(U) or is Inventory in transit to one of such
locations, except as otherwise disclosed in writing to the
Administrative Agent and such Borrower has not, in the last year,
located such Inventory at premises other than those set forth on
SCHEDULE 7.1(U).
(v) Equipment. All Equipment is in good order and repair in all
material respects and is located on the premises set forth on SCHEDULE 7.1(V)
and has been so located at all times during the last year.
(w) Bank Accounts. SCHEDULE 7.1(W) is a complete and correct
listing of all lockbox, demand deposit and other bank accounts maintained by
such Borrower or any Subsidiary, specifying the depositary, type and number of
each such account.
(x) Intellectual Property. SCHEDULE 7.1(X) sets forth a correct
and complete list of all of the Intellectual Property. None of the Intellectual
Property is subject to any licensing agreement or similar arrangement except as
set forth on SCHEDULE 7.1(X) or as entered into in the sale or distribution of
such Borrower's Inventory in the ordinary course of business. To the best of
such Borrower's knowledge, none of the Intellectual Property infringes on or
conflicts with any other Person's property, and no other Person's property
infringes on or conflicts with the Intellectual Property. The Intellectual
Property described on SCHEDULE 7.1(X) constitute all of the property of such
type necessary to the current and anticipated future conduct of such Borrower's
business.
(y) Real Property. Such Borrower owns no Real Estate and leases
no Real Estate other than that described on SCHEDULE 7.1(Y) and other than Real
Estate acquired or leased after the Effective Date for which such Borrower has
complied with the requirements of SECTION 9.14.
(z) Corporate and Fictitious Names. Except as otherwise disclosed
on SCHEDULE 7.1(Z), during the five-year period preceding the Agreement Date,
neither such Borrower nor any
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predecessor thereof has been known as or used any corporate or fictitious name
other than the corporate name of the Borrower on the Effective Date.
(aa) Federal Reserve Regulations. Neither such Borrower nor any of
its Subsidiaries is engaged and none will engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" (as each of the quoted terms is
defined or used in Regulation U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans will be used for
so purchasing or carrying margin stock or, in any event, for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation T,
U or X of such Board of Governors. If requested by the Administrative Agent or
any Lender, such Borrower will furnish to the Administrative Agent and the
Lenders a statement or statements in conformity with the requirements of said
Regulation T, U or X to the foregoing effect.
(bb) Investment Company Act. Such Borrower is not an "investment
company" or a company "controlled" by an "investment company" (as each of the
quoted terms is defined or used in the Investment Company Act of 1940, as
amended).
(cc) Employee Relations. Such Borrower and each of its
Subsidiaries has an adequate work force in place and is not, except as set
forth on SCHEDULE 7.1(cc), party to any collective bargaining agreement nor has
any labor union been recognized as the representative of such Borrower's or any
of its Subsidiaries' employees, and such Borrower knows of no pending,
threatened or contemplated strikes, work stoppage or other labor disputes
involving such Borrower's or any of its Subsidiaries' employees.
(dd) Trade Names. All trade names or styles under which such
Borrower sells Inventory or Equipment or creates Receivables, or to which
instruments in payment of Receivables are made payable, are listed on SCHEDULE
7.1(DD).
(ee) Year 2000 Compliance. Such Borrower has (i) initiated a
review and assessment of all areas within such Borrower's and each of its
Subsidiaries' business and operations (including those affected by suppliers,
vendors and customers) that could be adversely affected by the Year 2000
Problem, (ii) developed a plan and timeline for addressing the Year 2000
Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. Based on the foregoing, such Borrower believes
that all of its and its Subsidiaries' material computer applications are Year
2000 Compliant, and such Borrower is not aware that any of its material
suppliers, vendors or customers is likely to be materially adversely affected
by Year 2000 Problems.
(ff) Merger Agreement. Old WinsLoew has heretofore furnished to
the Administrative Agent true, complete and correct copies of the WinsLoew
Merger Agreement (including any schedules, exhibits and annexes thereto) and
each other WinsLoew Merger Document. The WinsLoew Merger Agreement has not been
amended, supplemented or modified except as
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previously disclosed in writing to the Administrative Agent and, together with
the other WinsLoew Merger Documents copies of which have been delivered to the
Administrative Agent, constitute the complete understanding between Old
WinsLoew and TFC in respect of the Merger and the other matters and
transactions covered thereby. To such Borrower's knowledge, the WinsLoew Merger
Agreement has been duly executed and delivered by Old WinsLoew and TFC and is a
valid, legal and binding obligation of such parties. The representations and
warranties of Old WinsLoew and TFC contained in the WinsLoew Merger Agreement
are (or will be) true and correct in all material respects on the Effective
Date as if made on and as of such date, and the Administrative Agent and the
Lenders are entitled to rely on such representations and warranties with the
same force and effect as though they were incorporated in this Agreement and
made to the Administrative Agent and the Lenders directly. On and as of the
Effective Date, such Borrower knows of no reason to believe that the
representations and warranties of, and information concerning, Old WinsLoew and
TFC contained in the WinsLoew Merger Agreement are not true and correct in all
material respects.
(gg) Subordinated Indebtedness. WinsLoew has the corporate power
and authority to issue the Senior Subordinated Notes. The issuance and sale of
the Senior Subordinated Notes have been registered or qualified under
applicable federal and state securities laws or are exempt therefrom. The
Senior Subordinated Notes are the legal valid and binding obligations of
WinsLoew enforceable against WinsLoew in accordance with their terms (including
those pertaining to subordination). WinsLoew has delivered to the
Administrative Agent a complete and correct copy of all documents evidencing or
relating to the Senior Subordinated Notes including the Senior Note Documents,
and each of the representations and warranties made by WinsLoew therein is true
and correct in all material respects as of the date of such Documents. The
subordination provisions of the Senior Subordinated Notes will be enforceable
against the respective holders thereof by the holder of any Note which has not
effectively waived the benefits thereof. All of the Secured Obligations
constitute senior Debt entitled to the benefits of subordination created with
respect to the Senior Subordinated Notes.
SECTION 7.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this ARTICLE 7 and all statements
contained in any certificate, financial statement, or other instrument,
delivered by or on behalf of the Borrowers pursuant to or in connection with
this Agreement or any of the Loan Documents (including, but not limited to, any
such representation, warranty or statement made in or in connection with any
amendment thereto) shall constitute representations and warranties made under
this Agreement. All representations and warranties made under this Agreement
shall be made or deemed to be made at and as of the Agreement Date, at and as
of the Effective Date and at and as of the date of each Loan, except that
representations and warranties which, by their terms are applicable only to one
such date shall be deemed to be made only at and as of such date. All
representations and warranties made or deemed to be made under this Agreement
shall survive and not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Lender or any
borrowing hereunder.
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ARTICLE 8
SECURITY INTEREST
SECTION 8.1 Security Interest.
(a) To secure the payment, observance and performance of the
Secured Obligations, each Borrower hereby mortgages, pledges and assigns all of
the Collateral to the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders and Affiliates of the Lenders, and grants
to the Administrative Agent, for the benefit of itself as Administrative Agent
and the Lenders and Affiliates of the Lenders, a continuing security interest
in, and a continuing Lien upon, all of the Collateral.
(b) As additional security for all of the Secured Obligations,
each Borrower grants to the Administrative Agent, for the benefit of itself as
Administrative Agent and the Lenders and Affiliates of the Lenders, a security
interest in, and assigns to the Administrative Agent, for the benefit of itself
as Administrative Agent and the Lenders and Affiliates of the Lenders, all of
such Borrower's right, title and interest in and to, any deposits or other sums
at any time credited by or due from each Lender and each Affiliate of a Lender
to such Borrower, or credited by or due from any participant of any Lender to
the Borrower, with the same rights therein as if the deposits or other sums
were credited by or due from such Lender. Each Borrower hereby authorizes each
Lender and each Affiliate of such Lender and each participant to pay or deliver
to the Administrative Agent, for the account of the Lenders, without any
necessity on the Administrative Agent's or any Lender's part to resort to other
security or sources of reimbursement for the Secured Obligations, at any time
during the continuation of any Event of Default of the aforesaid deposits
(general or special, time or demand, provisional or final) or other sums for
application to any Secured Obligation, irrespective of whether any demand has
been made or whether such Secured Obligation is mature, and the rights given
the Administrative Agent, the Lenders, their Affiliates and participants
hereunder are cumulative with such Person's other rights and remedies,
including other rights of set-off. The Administrative Agent will promptly
notify a Borrower of its receipt of any such funds for application to the
Secured Obligations, but failure to do so will not affect the validity or
enforceability thereof. The Administrative Agent may give notice of the above
grant of a security interest in and assignment of the aforesaid deposits and
other sums, and authorization, to, and make any suitable arrangements with, any
Lender, any such Affiliate of any Lender or participant for effectuation
thereof upon the occurrence and during the continuance of an Event of Default,
and each Borrower hereby irrevocably appoints the Administrative Agent as its
attorney to collect any and all such deposits or other sums to the extent any
such payment is not made to the Administrative Agent or any Lender by such
Lender, Affiliate or participant.
SECTION 8.2 Continued Priority of Security Interest.
(a) The Security Interest granted by each Borrower shall at all
times be valid, perfected and enforceable against such Borrower and all third
parties in accordance with the terms
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of this Agreement, as security for the Secured Obligations, and the Collateral
shall not at any time be subject to any Liens that are prior to, on a parity
with or junior to the Security Interest, other than Permitted Liens.
(b) Each Borrower shall, at its sole cost and expense, take all
action that may be necessary, or that the Administrative Agent may reasonably
request, so as at all times to maintain the validity, perfection,
enforceability and rank of the Security Interest in the Collateral in
conformity with the requirements of SECTION 8.2(A), or to enable the
Administrative Agent and the Lenders to exercise or enforce their rights
hereunder (subject to Permitted Liens), including, but not limited to:
(i) paying all taxes, assessments and other claims
lawfully levied or assessed on any of the Collateral, except to the
extent that such taxes, assessments and other claims constitute
Permitted Liens,
(ii) obtaining, after the Agreement Date, landlords',
mortgagees', bailees', warehousemen's or processors' releases,
subordinations or waivers, and using all reasonable efforts to obtain
mechanics' releases, subordinations or waivers,
(iii) delivering to the Administrative Agent, for the
benefit of the Lenders, endorsed or accompanied by such instruments of
assignment as the Administrative Agent may reasonably specify, and
stamping or marking, in such manner as the Administrative Agent may
reasonably specify, any and all chattel paper, instruments, letters
and advices of guaranty and documents evidencing or forming a part of
the Collateral, and
(iv) executing and delivering financing statements,
pledges, designations, hypothecations, notices and assignments in each
case in form and substance satisfactory to the Administrative Agent in
its reasonable judgment relating to the creation, validity,
perfection, maintenance or continuation of the Security Interest under
the Uniform Commercial Code or other Applicable Law.
(c) The Administrative Agent is hereby authorized to file one or
more financing or continuation statements or amendments thereto without the
signature of or in the name of a Borrower for any purpose described in SECTION
8.2(B). The Administrative Agent will give the relevant Borrower notice of the
filing of any such statements or amendments, which notice shall specify the
locations where such statements or amendments were filed. A carbon,
photographic, xerographic or other reproduction of this Agreement or of any of
the Security Documents or of any financing statement filed in connection with
this Agreement is sufficient as a financing statement.
(d) Each Borrower shall xxxx its books and records as directed by
the Administrative Agent and as may be necessary or appropriate to evidence,
protect and perfect the Security Interest and shall cause its financial
statements to reflect the Security Interest.
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ARTICLE 9
COLLATERAL COVENANTS
Each Borrower covenants and agrees that such Borrower will duly and
punctually pay the principal of, and interest on, and all other amounts payable
with respect to, the Loans and all other Secured Obligations and until the
Revolving Credit Facility and Acquisition Facility have been terminated and all
the Secured Obligations have been paid in full, unless the Required Lenders
shall otherwise consent in the manner provided in SECTION 16.11:
SECTION 9.1 Verification and Notification.
(a) The Administrative Agent shall have the right at any time
when an Event of Default exists, with or without notice, (i) in the name of the
Administrative Agent, the Lenders or in the name of a Borrower, to verify the
validity, amount or any other matter relating to any Receivables by mail,
telephone, telegraph or otherwise and (ii) during customary business hours, to
review, audit and make extracts from all records and files related to any of
the Receivables.
(b) At any time when an Event of Default exists, the
Administrative Agent shall have the right, from time to time, with or without
notice, to notify the Account Debtors or other obligors under any Receivables
of the assignment of such Receivables to the Administrative Agent, for the
benefit of the Lenders, and to direct such Account Debtor or obligor to make
payment of all amounts due or to become due thereunder directly to the
Administrative Agent, and, upon such notification and at the expense of the
Borrowers, to enforce collection of any such Receivables and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same
extent as the relevant Borrower might have done.
SECTION 9.2 Disputes, Returns and Adjustments.
(a) In the event any amounts due and owing under any Receivable
for an amount in excess of $200,000 are in dispute between the Account Debtor
and a Borrower, such Borrower shall provide the Administrative Agent with
prompt written notice thereof.
(b) Each Borrower shall notify the Administrative Agent promptly
of all returns and credits in excess of $200,000 in respect of any Receivable
(except Receivables temporarily credited in the ordinary course of business and
reissued in a corrected amount), which notice shall specify the Receivable
affected.
(c) Each Borrower may, in the ordinary course of business unless
a Default or an Event of Default has occurred and is continuing, grant any
extension of time for payment of any Receivable or compromise, compound or
settle the same for less than the full amount thereof, or release wholly or
partly any Person liable for the payment thereof, or allow any credit or
discount whatsoever therein; PROVIDED that (i) no such action results in the
reduction of more than
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$100,000 in the amount payable with respect to any Receivable or of more than
$400,000 with respect to all Receivables in any Fiscal Year (in each case,
excluding the allowance of credits or discounts generally available to Account
Debtors in the ordinary course of the relevant Borrower's business), and (ii)
the Administrative Agent is promptly notified of the amount of such adjustments
and the Receivable(s) affected thereby.
SECTION 9.3 Invoices.
(a) No Borrower will use any invoices other than invoices in the
names of the Borrowers or names used by the Borrowers and listed on SCHEDULE
7.1(DD) without giving the Administrative Agent 30 days prior notice of the
intended use of a different form of invoice together with a copy of such
different form.
(b) Upon the request of the Administrative Agent made at any time
when a Default or Event of Default exists, each Borrower shall deliver to the
Administrative Agent, at the Borrowers' expense, copies of customers' invoices
or the equivalent, original shipping and delivery receipts or other proof of
delivery, customers' statements, customer address lists, the original copy of
all documents, including, without limitation, repayment histories and present
status reports, relating to Receivables and such other documents and
information relating to the Receivables as the Administrative Agent shall
specify.
SECTION 9.4 Delivery of Instruments. In the event any Receivable is at
any time evidenced by a promissory note, trade acceptance or any other
instrument for the payment of money, the relevant Borrower will promptly upon
request of the Administrative Agent deliver such instrument to the
Administrative Agent.
SECTION 9.5 Sales of Inventory. All sales of Inventory will be made in
compliance in all material respects with all requirements of Applicable Law.
SECTION 9.6 Ownership and Defense of Title.
(a) Except for Permitted Liens, a Borrower shall at all times be
the sole owner or lessee of each and every item of Collateral and shall not
create any lien on, or sell, lease, exchange, assign, transfer, pledge,
hypothecate, grant a security interest or security title in or to or otherwise
dispose of, any of the Collateral or any interest therein, except for sales of
Inventory in the ordinary course of business, for cash or on open account or on
terms of payment ordinarily extended to its customers, sales of property that
is obsolete, worn out or no longer useful in the Borrowers' businesses, and
except for dispositions contemplated pursuant to SECTION 12.7 or that are
otherwise expressly permitted under this Agreement. The inclusion of "proceeds"
of the Collateral under the Security Interest shall not be deemed a consent by
the Administrative Agent or the Lenders to any other sale or other disposition
of any Collateral.
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(b) Each Borrower shall defend its title or leasehold interest in
and to, and the Security Interest in, the Collateral against the claims and
demands of all Persons.
SECTION 9.7 Insurance.
(a) The Borrowers shall at all times maintain insurance on the
Inventory and Equipment against loss or damage by fire, theft (excluding theft
by employees), burglary, pilferage, loss in transit and such other hazards as a
prudent Person similarly situated would maintain coverage against, in amounts
not to exceed those obtainable at commercially reasonable rates and under
policies issued by insurers acceptable to the Administrative Agent in the
exercise of its reasonable judgment. All premiums on such insurance shall be
paid by the Borrowers and copies of the policies delivered to the
Administrative Agent at its request. The Borrowers will not use or permit the
Inventory or Equipment to be used in any manner which might render inapplicable
any insurance coverage.
(b) All insurance policies required under SECTION 9.7(A) shall
name the Administrative Agent, for the benefit of the Lenders, as an additional
insured and shall contain loss payable clauses in the form submitted to the
Borrowers by the Administrative Agent, or otherwise in form and substance
satisfactory to the Administrative Agent, naming the Administrative Agent, for
the benefit of the Lenders, as loss payee, as its interests may appear, and
providing that
(i) all proceeds thereunder shall be payable to the
Administrative Agent, for the benefit of the Lenders,
(ii) no such insurance shall be affected by any act or
neglect of the insurer or owner of the property described in such
policy, and
(iii) such policy and loss payable clauses may be
cancelled, amended or terminated only upon at least 10 days' prior
written notice given to the Administrative Agent.
(c) Any proceeds of insurance referred to in this SECTION 9.7
which are paid to the Administrative Agent, for the account of the Lenders,
shall be, at the option of the Required Lenders in their sole discretion,
either (i) applied to replace the damaged or destroyed property, or (ii)
applied to the payment or prepayment of the Secured Obligations, PROVIDED that
if no Default or Event of Default exists, insurance proceeds in respect of any
loss having a value, as adjusted, not greater than $100,000 shall be released
to the applicable Borrower to be applied to the repair, restoration or
replacement of the damaged property, subject to such reasonable conditions or
controls as the Administrative Agent may specify.
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SECTION 9.8 Location of Offices and Collateral.
(a) No Borrower will change the location of its chief executive
office or the place where it keeps its books and records relating to the
Collateral or change its name, its identity or corporate structure without
giving the Administrative Agent 60 days' prior written notice thereof.
(b) All Inventory, other than Inventory in transit to any such
location, will at all times be kept by a Borrower at the locations set forth in
SCHEDULE 7.1(U), and shall not, without the prior written consent of the
Administrative Agent, be removed therefrom except pursuant to sales of
Inventory permitted under SECTION 9.7(A).
(c) If any Inventory is in the possession or control of any of a
Borrower's agents or processors, such Borrower shall notify such agents or
processors of the Security Interest (and shall promptly provide copies of any
such notice to the Administrative Agent and the Lenders) and, upon the
occurrence of an Event of Default, shall instruct them (and cause them to
acknowledge such instruction) to hold all such Inventory for the account of the
account of the Lenders, subject to the instructions of the Administrative
Agent.
(d) After the Effective Date, the Borrowers will not store or
otherwise locate any Collateral (other than Inventory) having an aggregate fair
market value of more than [$700,000] at the leased facility located at 000 X.X.
00xx Xxxxxx, Xxxxx, Xxxxxxx 00000, unless and until a new landlord waiver has
been executed and delivered by the lessor of such facility, in form and
substance satisfactory to the Administrative Agent.
SECTION 9.9 Records Relating to Collateral.
(a) Each Borrower will at all times
(i) keep complete and accurate records of Inventory on a
basis consistent with past practices of such Borrower so as to permit
comparison of Inventory records relating to different time periods,
itemizing and describing the kind, type and quantity of Inventory and
the Borrower's cost thereof and a current price list for such
Inventory, and
(ii) keep complete and accurate records of all other
Collateral.
(b) Each Borrower will prepare a physical listing of all
Inventory, wherever located, at least annually.
SECTION 9.10 Inspection. The Administrative Agent and each Lender (by
any of their officers, employees or agents) shall have the right, to the extent
that the exercise of such right shall be within the control of a Borrower, at
any time or times to:
(a) (i) Visit the properties of any Borrower or Subsidiary,
inspect the Collateral and the other assets of each Borrower and its
Subsidiaries and inspect and make extracts from the
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books and records of each Borrower and its Subsidiaries, and (ii) verify the
amount, quantity, value and condition of, or any other matter relating to, any
of the Collateral (other than Receivables) and in this connection to review,
audit and make extracts from all records and files related to any of the
Collateral, including but not limited to management letters prepared by
independent accountants, all during customary business hours at such premises
and after reasonable efforts to notify the Borrowers' Representative in advance
of such visit. The Lenders shall to the extent reasonably practicable
coordinate their visits and inspections with those of the Administrative Agent
so as to minimize the number of separate visits to Borrowers' premises.
(b) Discuss each Borrower's and its Subsidiaries' business,
assets, liabilities, financial condition, results of operations and business
prospects, insofar as the same are reasonably related to the rights of the
Administrative Agent or the Lenders hereunder or under any of the Loan
Documents, with each Borrower's and its Subsidiaries' principal officers and
independent accountants, and, at any time when a Default or Event of Default
exists, with any other Person (provided that the Borrowers' acknowledgment of
such right is not intended to and does not constitute a waiver or release by
the Borrowers (or any of them) of the Administrative Agent or any Lender of or
from any liability such Person may have to a Borrower arising out of improper
disclosure of confidential information).
Each Borrower will deliver to the Administrative Agent, for the benefit of the
Lenders, any instrument necessary for it to obtain records from any service
bureau maintaining records on behalf of such Borrower.
SECTION 9.11 Information and Reports.
(a) Schedule of Receivables. The Borrowers shall deliver to the
Administrative Agent on or before the Effective Date and from time to time
thereafter as requested by the Administrative Agent a Schedule of Receivables
which
(i) shall be as of the last Business Day of the
immediately preceding accounting month,
(ii) shall be reconciled to the Borrowing Base
Certificate as of such last Business Day, and
(iii) shall set forth a detailed aged trial balance of all
its then existing Receivables, specifying the names, addresses and
balance due for each Account Debtor obligated on a Receivable so
listed.
(b) Schedule of Inventory. The Borrowers shall deliver to the
Administrative Agent on or before the Effective Date and from time to time
thereafter as requested by the Administrative Agent a Schedule of Inventory as
of the last Business Day of the immediately
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preceding accounting month of the Borrowers, itemizing and describing the kind,
type and quantity of Inventory, the Borrowers' cost thereof and the location
thereof.
(c) Borrowing Base Certificate. The Borrowers shall deliver to
the Administrative Agent not later than the 15th day of each calendar month (or
at such other intervals as the Administrative Agent may reasonably specify) a
Borrowing Base Certificate prepared as of the close of the last Business Day of
the immediately preceding accounting month (or other specified date).
(d) Notice of Diminution of Value. Each Borrower shall give
prompt notice to the Administrative Agent of any matter or event which has
resulted in, or may result in, the diminution in excess of $500,000 in the
value of any of its Collateral, except for any such diminution in the value of
any Receivables or Inventory in the ordinary course of business which has been
appropriately reserved against, as reflected in financial statements previously
delivered to the Administrative Agent and the Lenders pursuant to ARTICLE 11.
(e) Additional Information. The Borrowers will also furnish to
the Administrative Agent and each Lender such other information with respect to
the Collateral as the Administrative Agent or any Lender may from time to time
reasonably request and that the Borrowers can obtain without unreasonable
expense.
SECTION 9.12 Power of Attorney. Each Borrower hereby appoints the
Administrative Agent as its attorney in fact, with the power if and when an
Event of Default exists, to endorse the name of such Borrower on any checks,
notes, acceptances, money orders, drafts or other forms of payment or security
that may come into the Administrative Agent's or any Lender's possession, and
if and when an Event of Default exists, to sign the name of such Borrower on
any invoice or xxxx of lading relating to any Receivable, Inventory or other
Collateral, on any drafts against customers related to letters of credit, on
schedules and assignments of Receivables furnished to the Administrative Agent
or any Lender by the Borrower, on notices of assignment, financing statements
and other public records relating to the perfection or priority of the Security
Interest, verifications of account and notices to or from customers.
SECTION 9.13 Additional Real Estate and Leases.
(a) Promptly upon a Borrower's acquisition after the Effective
Date of any fee interest or material leasehold interest in any Real Estate,
such Borrower shall deliver to the Administrative Agent, at the Administrative
Agent's request, for the benefit of itself as Administrative Agent and the
Lenders, an executed Mortgage in form and substance satisfactory to the
Administrative Agent, conveying to the Administrative Agent, for the benefit of
itself and the Lenders, a first priority Lien on such Real Estate, subject only
to such prior Liens as the Administrative Agent shall consent to in writing. If
requested by the Administrative Agent, such Borrower shall also deliver to the
Administrative Agent at the Borrowers' expense a mortgagee title insurance
policy in favor of the Administrative Agent and the Lenders insuring such
Mortgage to create and
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convey such Lien, subject only to such exceptions as are consented to by the
Administrative Agent (such consent not be unreasonably withheld) and shall
deliver to the Administrative Agent, at the Administrative Agent's request, the
other items set forth in SECTION 6.1(C) (10) through (13) with respect to such
Real Estate, all in form and substance satisfactory to the Administrative
Agent.
(b) In addition to the Borrowers' obligations pursuant to SECTION
8.2, promptly upon a Borrower's entry into any lease of Real Estate (other than
a material lease conveying an interest in Real Estate, which shall be subject
to the provisions of subsection (a) above), such Borrower shall, at the request
of the Administrative Agent, collaterally assign to the Administrative Agent,
for the benefit of itself and the Lenders, such Borrower's interest in such
lease, in form and substance satisfactory to the Administrative Agent in its
reasonable judgment.
SECTION 9.14 Assignment of Claims Act. Upon the request of the
Administrative Agent made at any time when government contracts are material to
a Borrower's business, such Borrower shall execute any documents or instruments
and shall take such steps or actions reasonably required by the Administrative
Agent so that all monies due or to become due under any contract with the
United States of America, the District of Columbia or any state, county,
municipality or other domestic or foreign governmental entity, or any
department, agency or instrumentality thereof, will be assigned to the
Administrative Agent, for the benefit of itself and the Lenders, and notice
given thereof in accordance with the requirements of the Assignment of Claims
Act of 1940, as amended, or any other laws, rules or regulations relating to
the assignment of any such contract and monies due to or to become due.
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ARTICLE 10
AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that the Borrowers will jointly and
severally, duly and punctually pay the principal of, and interest on, and all
other amounts payable with respect to, the Loans and all other Secured
Obligations in accordance with the terms of the Loan Documents and that until
the Revolving Credit Facility and the Acquisition Facility have been terminated
and all the Secured Obligations have been paid in full, unless the Required
Lenders shall otherwise consent in the manner provided for in SECTION 16.11,
each Borrower will, and will cause each of its Subsidiaries to:
SECTION 10.1 Preservation of Corporate Existence and Similar Matters.
Preserve and maintain its corporate or other legal existence, rights,
franchises, licenses and privileges in the jurisdiction of its incorporation or
organization and qualify and, except to the extent its failure to do so could
not reasonably be expected to have a Materially Adverse Effect, remain
qualified as a foreign corporation or other entity and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization.
SECTION 10.2 Compliance with Applicable Law. Comply in all material
respects with Applicable Law relating to such Borrower or such Subsidiary,
except to the extent being contested in good faith by appropriate proceedings
and for which reserves in respect of such Borrower's or such Subsidiary's
reasonably anticipated liability have been appropriately established.
SECTION 10.3 Maintenance of Property. In addition to, and not in
derogation of, the requirements of Section 9.6 and of the Security Documents,
(a) protect and preserve all properties material to its business,
including Copyrights, Patents, and Trademarks, and maintain in good repair,
working order and condition in all material respects, with reasonable allowance
for wear and tear, all tangible properties, and
(b) from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements and additions to such properties
necessary for the conduct of its business, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times.
SECTION 10.4 Conduct of Business. At all times carry on its business
in an appropriate manner and engage only in the business described in SECTION
7.1(F).
SECTION 10.5 Insurance. Maintain, in addition to the coverage required
by SECTION 9.7 and the Security Documents, insurance with responsible insurance
companies against such risks and in such amounts as is customarily maintained
by similar businesses or as may be required by
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Applicable Law, and from time to time (but not more often than semi-annually
and whenever an Event of Default exists) deliver to the Administrative Agent or
any Lender upon its request a detailed list of the insurance then in effect,
stating the names of the insurance companies, the amounts and rates of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 10.6 Payment of Taxes and Claims. Pay or discharge when due
(a) all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or upon any properties belonging
to it, except that real property ad valorem taxes shall be deemed to have been
so paid or discharged if the same are paid before they become delinquent, and
(b) all lawful claims of materialmen, mechanics, carriers,
warehousemen and landlords for labor, materials, supplies and rentals which, if
unpaid, might become a Lien on any properties of such Borrower;
Except that this SECTION 10.6 shall not require the payment or
discharge of any such tax, assessment, charge, levy or claim which is being
contested in good faith by appropriate proceedings and for which reserves in
respect of reasonably anticipated liability have been appropriately
established.
SECTION 10.7 Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete), as may be required or as may be necessary to permit the
preparation of financial statements in accordance with GAAP.
SECTION 10.8 Use of Proceeds.
(a) Use the proceeds of
(i) the initial Revolving Credit Loan and the Term Loans
to pay amounts indicated on SCHEDULE 10.8 to the Persons indicated
thereon,
(ii) the Acquisition Loans to pay in part the purchase
price of the related Permitted Acquisitions, and
(iii) all Swingline Loans and all Revolving Credit Loans
made after the Effective Date only for working capital and general
business purposes; and
(b) not use any part of such proceeds to purchase or, to carry or
reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System) or, in any event, for any purpose which would
involve a violation of such Regulation U or of Regulation T or X of such
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Board of Governors, or for any purpose prohibited by law or by the terms and
conditions of this Agreement.
SECTION 10.9 Hazardous Waste and Substances; Environmental
Requirements.
(a) In addition to, and not in derogation of, the requirements of
SECTION 10.2 and of the Security Documents, comply in all material respects
with Environmental Laws and Applicable Laws relating to occupational health and
safety (except for instances of noncompliance that are being contested in good
faith by appropriate proceedings if reserves in respect of such Borrower's or
such Subsidiary's reasonably anticipated liability therefor have been
appropriately established), promptly notify the Administrative Agent of its
receipt of any written notice of a violation of any such Environmental Laws or
other such Applicable Laws and indemnify and hold the Administrative Agent and
the Lenders harmless from all loss, cost, damage, liability, claim and expense
incurred by or imposed upon the Administrative Agent or any Lender on account
of such Borrower's failure to perform its obligations under this SECTION 10.9.
(b) Whenever a Borrower gives notice to the Administrative Agent
pursuant to this SECTION 10.9 or otherwise with respect to a matter that
reasonably could be expected to result in material liability to such Borrower
or any Subsidiary under any Environmental Law, the Borrowers shall, at the
Administrative Agent's request and the Borrowers' expense (i) cause an
independent environmental engineer acceptable to the Administrative Agent in
its reasonable judgment to conduct an assessment, including tests where
necessary, of the site where the noncompliance or alleged noncompliance with
Environmental Laws has occurred and prepare and deliver to the Administrative
Agent a report setting forth the results of such assessment, a proposed plan to
bring such Borrower (or such Subsidiary) into compliance with such
Environmental Laws (if such assessment indicates noncompliance) and an estimate
of the costs thereof, and (ii) provide to the Administrative Agent a
supplemental report of such engineer whenever the scope of the noncompliance,
or the response thereto or the estimated costs thereof, shall materially
adversely change.
SECTION 10.10 Year 2000. Promptly notify the Administrative Agent in
the event such Borrower discovers or determines that any computer application
(including those of its suppliers, vendors and customers) that is material to
its or any of its Subsidiaries' business and operations will not be Year 2000
Compliant.
SECTION 10.11 Execution of Subsidiary Guaranties; Additional
Borrowers. Upon the request of the Administrative Agent or any Lender, cause
any domestic (United States) Subsidiary which is not a Borrower and has not
entered into a Guaranty and a Guarantor Security Agreement to execute and
deliver to the Administrative Agent such joinder agreement with respect to this
Agreement or such a Guaranty and a Guarantor Security Agreement and, in either
case, appropriate Financing Statements all in form and substance satisfactory
to the Administrative Agent and the Required Lenders in their reasonable
judgment.
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ARTICLE 11
INFORMATION
Until the Revolving Credit Facility and the Acquisition Facility have
been terminated and all the Secured Obligations have been paid in full, unless
the Required Lenders shall otherwise consent in the manner set forth in SECTION
16.11, the Borrowers will furnish to the Administrative Agent and to each
Lender at its offices then designated for notices pursuant to SECTION 16.1, the
statements, reports, certificates, and other information provided for in this
ARTICLE 11. All written information, reports, statements and other papers and
data furnished to the Administrative Agent or any Lender by or at the request
of a Borrower, whether pursuant to this ARTICLE 11 or any other provision of
this Agreement or of any other Loan Document, shall be, at the time the same is
so furnished, complete and correct in all material respects to the extent
necessary to give the Administrative Agent and the Lenders true and accurate
knowledge of the subject matter. Specifically, the Borrowers will so furnish:
SECTION 11.1 Financial Statements.
(a) Audited Year-End Statements. As soon as available, but in any
event within 105 days after the end of each Fiscal Year, copies of the
consolidating and consolidated balance sheets of WinsLoew and its Consolidated
Subsidiaries as at the end of such Fiscal Year and the related consolidating
and consolidated statements of income, shareholders' equity and cash flows for
such Fiscal Year, in each case setting forth in comparative form the figures
for the previous Fiscal Year, reported on, as to such consolidated statements,
without qualification, by independent certified public accountants of
nationally recognized standing selected by WinsLoew; and
(b) Monthly Financial Statements. As soon as available after the
end of each month, but in any event within 30 days after the end of each
accounting month (or within 45 days after the end of each accounting month that
is the last month in a Fiscal Quarter), copies of the unaudited consolidating
and consolidated balance sheets of WinsLoew and its Consolidated Subsidiaries
as at the end of such month and the related unaudited consolidating and
consolidated statements of income and cash flows for WinsLoew and its
Consolidated Subsidiaries for such month, for the Fiscal Quarter then ended (if
such month is the last month of a Fiscal Quarter) and for the portion of the
Fiscal Year through such month, certified by the Financial Officer as
presenting fairly the financial condition and results of operations of WinsLoew
and its Consolidated Subsidiaries (subject to normal year-end audit
adjustments) for the applicable period(s);
all such financial statements to be complete and correct in all material
respects and prepared in accordance with GAAP (except, with respect to interim
financial statements, for the omission of notes) applied consistently
throughout the periods reflected therein.
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SECTION 11.2 [Reserved]
SECTION 11.3 Officer's Certificate. At the time that the Borrowers
furnish the financial statements pursuant to Section 11.1(b) for any accounting
month that is the last month of a Fiscal Quarter, a certificate of the
Financial Officer in the form attached hereto as Exhibit G
(a) setting forth as at the end of such Fiscal Quarter or Fiscal
Year, as the case may be, the calculations required to establish whether or not
the Borrowers were in compliance with the requirements of Sections 12.1, 12.2,
12.5, 12.10 and 12.11, as at the end of each respective period and the
calculations necessary to determine the Applicable Margin,
(b) stating that the information on the schedules to this
Agreement (other than those that refer specifically to a single date on or
prior to the Effective Date) is complete and accurate as of the date of such
certificate or, if such is not the case, attaching to such certificate updated
schedules in accordance with the provisions of Section 11.7, and
(c) stating that, based on a reasonably diligent examination, no
Default or Event of Default exists, or, if such is not the case, specifying
such Default or Event of Default and its nature, when it occurred, whether it
is continuing and the steps being taken by the Borrowers with respect to such
Default or Event of Default.
SECTION 11.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to a Borrower or its Board of Directors by its independent public
accountants, including, without limitation, any management report.
(b) As soon as practicable and, in any event, when made available
to the holders of the Senior Subordinated Notes, copies of all financial
statements and reports that a Borrower shall send to its shareholders generally
and of all registration statements and all regular or periodic reports which a
Borrower shall file with the Securities and Exchange Commission or any
successor commission.
(c) From time to time and as soon as reasonably practicable
following each request, such forecasts, data, certificates, reports,
statements, opinions of counsel, documents or further information regarding the
business, assets, liabilities, financial condition, results of operations or
business prospects of any Borrower or Subsidiary as the Administrative Agent or
any Lender may reasonably request and that a Borrower has or (except in the
case of legal opinions relating to the perfection or priority of the Security
Interest) without unreasonable expense can obtain. The rights of the
Administrative Agent and the Lenders under this Section 11.4 are in addition to
and not in derogation of their rights under any other provision of this
Agreement or of any other Loan Document.
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(d) If requested by the Administrative Agent or any Lender, the
Borrowers will furnish to the Administrative Agent and the Lenders statements
in conformity with the requirements of Federal Reserve Form U-1 or G-3 referred
to in Regulation U of the Board of Governors of the Federal Reserve System.
SECTION 11.5 Notice of Litigation and Other Matters. Prompt notice of:
(a) the commencement, to the extent a Borrower is aware of the
same, of all proceedings and investigations by or before any governmental or
nongovernmental body and all actions and proceedings in any court or before any
arbitrator against or in any other way relating to or affecting the Borrowers,
any of their respective Subsidiaries or any of the Borrowers' or any of their
respective Subsidiaries' properties, assets or businesses, which might, singly
or in the aggregate, result in the occurrence of a Default or an Event of
Default, or have a Materially Adverse Effect,
(b) any amendment of the articles of incorporation or by-laws or
other constituent documents of a Borrower or any of its Subsidiaries and any
change in the executive officers of WinsLoew,
(c) any change in the business, assets, liabilities, financial
condition, results of operations or business prospects of a Borrower or any of
its Subsidiaries which has had or could reasonably be expected to have, singly
or in the aggregate, a Materially Adverse Effect, and
(d) any Default or Event of Default or any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default by a Borrower or any of its
Subsidiaries under any material agreement (other than this Agreement) to which
such Borrower or any of its Subsidiaries is a party or by which such Borrower,
any of its Subsidiaries or any of such Borrower's or any of its Subsidiaries'
properties may be bound.
SECTION 11.6 ERISA. As soon as possible and in any event within 30
days after a Borrower knows, or has reason to know, that:
(a) any ERISA Event with respect to a Benefit Plan has occurred
or will occur, or
(b) the aggregate present value of the Unfunded Vested Accrued
Benefits under all Benefit Plans is equal to an amount in excess of $0, or
(c) a Borrower or any Subsidiary is in "default" (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer
Benefit Plan required by reason of the Borrower's or such Subsidiary's complete
or partial withdrawal (as described in Section 4203 or 4205 of ERISA) from such
Multiemployer Plan, a certificate of the Financial Officer setting forth the
details of such event and the action which is proposed to be taken with respect
thereto,
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together with any notice or filing which may be required by the PBGC or other
agency of the United States government with respect to such event.
SECTION 11.7 Revisions or Updates to Schedules. Should any of the
information or disclosures provided on any of the Schedules originally attached
hereto become outdated or incorrect in any material respect, as part of the
quarterly officer's certificate required pursuant to Section 11.3(b), such
revisions or updates to such Schedule(s) as may be necessary or appropriate to
update or correct such Schedule(s), PROVIDED that no such revisions or updates
to any Schedule(s) shall be deemed to have amended, modified or superseded such
Schedule(s) as attached hereto immediately prior to the submission of such
revised or updated Schedule(s), or to have cured any breach of warranty or
representation resulting from the inaccuracy or incompleteness of any such
Schedule(s), unless and until the Required Lenders in their sole and absolute
discretion, shall have accepted in writing such revisions or updates to such
Schedule(s).
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ARTICLE 12
NEGATIVE COVENANTS
Until the Revolving Credit Facility and the Acquisition Facility have
been terminated and all the Secured Obligations have been paid in full, unless
the Required Lenders shall otherwise consent in the manner set forth in SECTION
16.11, the Borrowers will not directly or indirectly and, in the case of
SECTIONS 12.2 through 12.13, will not permit Subsidiaries to:
SECTION 12.1 Financial Ratios.
(a) Minimum Fixed Charge Coverage. Permit the Fixed Charge
Coverage Ratio for each period of four consecutive Fiscal Quarters ending on
and after December 31, 1999, to be less than 1.20 to 1.
(b) Consolidated Maximum Total Funded Debt to EBITDA Ratio.
Permit the Total Funded Debt to EBITDA Ratio for each period of four
consecutive Fiscal Quarters ending on and after December 31, 1999 and during a
Fiscal Year listed below to be greater than the ratio indicated below opposite
such Fiscal Year:
Fiscal Year Total Funded Debt to EBITDA Ratio
----------- ---------------------------------
1999 5.75 to 1
2000 5.50 to 1
2001 5.25 to 1
2002 4.75 to 1
2003 4.25 to 1
2004 and thereafter 4.00 to 1
PROVIDED, that such Ratio for the four-quarter period ending with the first
Fiscal Quarter of Fiscal Year 2001 shall not be greater than 5.75 to 1 and for
the four-quarter period ending with the first Fiscal Quarter of Fiscal Year
2002 shall not be greater than 5.50 to 1.
(c) Minimum Interest Coverage Ratio. Permit the Interest Coverage
Ratio for each period of four consecutive Fiscal Quarters ending on and after
December 31, 1999 and during a Fiscal Year listed below to be less than the
ratio indicated below opposite such Fiscal Year:
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Fiscal Year Interest Coverage Ratio
----------- -----------------------
December 31, 1999 1.40 to 1
2000 1.60 to 1
2001 1.75 to 1
2002 1.95 to 1
2003 and thereafter 2.00 to 1
SECTION 12.2 Debt. Create, assume, or otherwise become or remain
obligated in respect of, or permit or suffer to exist or to be created, assumed
or incurred or to be outstanding any Debt, except that this SECTION 12.2 shall
not apply to:
(a) Debt of the Loan Parties represented by the Loans and the
Notes,
(b) Debt reflected on SCHEDULE 7.1(j), excluding any such Debt
that is to be paid in full on the Effective Date,
(c) Permitted Purchase Money Debt,
(d) Subordinated Debt,
(e) Interest Rate Protection Agreements,
(f) unsecured Debt of any Loan Party owing to another Loan Party,
provided the repayment thereof is subordinated to the prior payment in full of
the Secured Obligations and such Debt is evidenced by a promissory note that is
delivered to the Administrative Agent, at it request, as Collateral;
(g) Permitted Investments; and
(h) other unsecured Debt in an aggregate amount as to WinsLoew
and its Subsidiaries outstanding at any time in an amount not to exceed
$5,000,000.
SECTION 12.3 Guaranties. Become or remain liable with respect to any
Guaranty of any obligation of any other Person, except that this SECTION 12.3
shall not apply to any Borrower's or Subsidiary's obligation to indemnify its
officers and directors to the fullest extent permitted by the corporation law
of the jurisdiction of such Person's organization.
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SECTION 12.4 Investments. Other than in connection with a Permitted
Acquisition, acquire, after the Agreement Date, any Business Unit or Investment
or, after such date, maintain any Investment other than Permitted Investments.
SECTION 12.5 Capital Expenditures. Make or incur any Capital
Expenditures (other than Financed Capex) in any Fiscal Year in an amount
greater than that set forth below opposite such Fiscal Year:
Fiscal Year Amount
----------- ------
1999 $2,000,000
2000 and thereafter $3,000,000
, plus additional Capital Expenditures in Fiscal Years 1999 and 2000 in an
aggregate amount not greater than $4,000,000 made by WPI to purchase the
manufacturing facility leased by Texacraft on the Agreement Date and an
additional facility in Haleyville, Alabama located across the street from
Winston's existing Haleyville facility (such real property purchases, the "WPI
Purchases").
SECTION 12.6 Restricted Distributions and Payments, Etc. Declare or
make any Restricted Distribution or Restricted Payment, except that this
SECTION 12.6 shall not apply to (1) repurchases of WinsLoew Capital Stock from
former employees of WinsLoew or its Subsidiaries or independent sales
representatives in an aggregate amount not to exceed $1,000,000 in any 12-month
period, (2) provided that both immediately before and after making any such
payment no Default or Event of Default exists, regularly scheduled payments of
principal and interest on the Senior Subordinated Notes made in accordance with
the provisions (including the subordination provisions) of the Senior Note
Indenture, (3) fees paid to outside directors of WinsLoew and (4) provided that
both immediately before and after making any such payment no Default or Event
of Default exists, fees paid to Trivest II, Inc. in accordance with the
provisions of SECTION 12.8.
SECTION 12.7 Merger, Consolidation and Sale of Assets. Other than in
connection with a Permitted Acquisition, merge or consolidate with any other
Person or sell, lease or transfer or otherwise dispose of any material assets
to any Person other than sales of Inventory in the ordinary course of business,
except that this SECTION 12.7 shall not apply to (i) the sale by WinsLoew of
substantially all the assets (subject to substantially all the liabilities) of
the Southern Wood business, provided that the Net Proceeds of such Asset
Disposition are applied in accordance with the provisions of SECTION 5.11, (ii)
sales and discounting of accounts for collection in the ordinary course of the
Borrowers' business, consistent with their past practices, (iii) leases of Real
Estate entered into by a Borrower or Subsidiary as lessor that do not interfere
with such Borrower's or Subsidiary's operations, or (iv) any Asset Disposition
otherwise permitted hereunder.
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SECTION 12.8 Transactions with Affiliates. Effect any transaction with
any Affiliate on a basis less favorable to the Borrowers than would be the case
if such transaction had been effected with a Person not an Affiliate, except
that this SECTION 12.8 shall not apply to (i) (w) reimbursement of fees and
expenses of the law department of Trivest II, Inc., (x) management fees paid to
Trivest II, Inc. in an amount not greater than $350,000 per annum (subject to
annual adjustment to reflect any increase in the Consumer Price Index for all
Urban Consumers or to reflect additional Acquisitions, in each case in
accordance with the provisions of the Trivest Management Agreement), (y)
transaction fees (including reimbursement of legal fees incurred by Trivest II,
Inc. and certain of its Affiliates in connection with such transactions) in
connection with the WinsLoew Merger and the Acquisition of Pompeii and
Pompeii-Mexico which do not exceed in the aggregate $3,400,000 or (z)
transaction or "incentive" fees payable in accordance with the terms of the
Trivest Management Agreement; (ii) other payments expressly permitted pursuant
to SECTION 12.6; and (iii) any transaction between Borrowers or between a
Borrower and a Subsidiary (whether or not a Loan Party) that is in the ordinary
course of business of such Borrower and consistent with its past business
practices.
SECTION 12.9 Liens. Create, assume or permit or suffer to exist or to
be created or assumed any Lien on any of the Collateral or its other assets,
other than Permitted Liens.
SECTION 12.10 Real Estate Leases. Enter into any real property lease
(other than leases by WPI, as lessor, to WinsLoew or any Subsidiary), including
a lease relating to the Real Estate occupied by a Borrower on the Effective
Date, if the aggregate annual rental expense under all such leases entered into
since the effective date would exceed $500,000, without the prior written
consent of the Administrative Agent, on behalf of the Lenders, which consent
shall not be unreasonably withheld.
SECTION 12.11 Benefit Plans. Permit any condition to exist in
connection with any Benefit Plan which might constitute grounds for the PBGC to
institute proceedings to have such Benefit Plan terminated or a trustee
appointed to administer such Benefit Plan, or any other condition, event or
transaction with respect to any Benefit Plan which could result in the
incurrence by a Borrower of any material liability, fine or penalty.
SECTION 12.12 Sales and Leasebacks. Enter into any arrangement with
any Person providing for a Borrower's leasing from such Person any real or
personal property which has been or is to be sold or transferred, directly or
indirectly, by such Borrower to such Person.
SECTION 12.13 Amendments of Other Agreements. Amend in any way (a) the
interest rate or principal amount or schedule of payments of principal and
interest with respect to any Debt (other than the Secured Obligations) other
than to reduce the interest rate or extend the schedule of payments with
respect thereto, provided that the Debt secured by the Permitted Liens
encumbering the Real Estate located in Liberty, North Carolina shall not be
amended, or (b) the Senior Note Indenture or (other than to reduce the interest
rate or extend the Schedule of payments with respect thereto) any other
documents governing Subordinated Debt outstanding in
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a principal amount as to any obligation of more than $1,000,000 or which, when
added to other outstanding Subordinated Debt (other than the Senior
Subordinated Notes) exceeds $2,500,000 in principal amount or (c) the
compensation provisions (other than to decrease the Borrowers' obligations
thereunder) of the Trivest Management Agreement.
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ARTICLE 13
DEFAULT
SECTION 13.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or nongovernmental body:
(a) Default in Payment. The Borrowers shall default in any
payment of principal of or interest on any Loan or any Note when and as due
(whether at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrowers shall default in the
payment, as and when due of any Secured Obligation (other than as provided in
clause (a) above), and such default shall continue for a period of 10 days
after written notice thereof has been given to the Borrower by the
Administrative Agent.
(c) Misrepresentation. Any representation or warranty made or
deemed to be made by a Borrower under this Agreement or any Loan Document, or
any amendment hereto or thereto, shall at any time prove to have been incorrect
or misleading in any material respect when made.
(d) Default in Performance. The Borrowers shall default in the
performance or observance of any term, covenant, condition or agreement to be
performed by any Borrower, contained in
(i) ARTICLES 11 or 12, or SECTION 9.6, 9.7, 9.9, 9.10,
9.11, 10.1 (insofar as it requires the preservation of the corporate
existence of each Borrower), or 10.8, and the Administrative Agent
shall have delivered to the Borrowers written notice of such default,
or
(ii) this Agreement (other than as specifically provided
for otherwise in this SECTION 13.1) and such default shall continue
for a period of 30 days after written notice thereof has been given to
the Borrower by the Administrative Agent.
(e) Debt Cross-Default. (i) Failure of a Borrower or any of its
Subsidiaries to pay when due or within any applicable grace period any
principal or interest on any Debt (other than the Loans), or (ii) breach or
default of a Borrower or any of its Subsidiaries with respect to any Debt
(other than the Loans), if the effect of such failure to pay, default or breach
is to cause or to permit the holder or holders then to cause any Debt having an
individual principal amount in excess of $1,000,000 or having an aggregate
principal amount in excess of $2,500,000 to become or be declared due prior to
their stated maturity, whether or not such failure to pay, default or
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breach is waived by such holder or holders.
(f) Other Cross-Defaults. A Borrower or any of its Subsidiaries
shall default in the payment when due, or in the performance or observance, of
any obligation or condition of any agreement, contract or lease (other than
this Agreement, the other Loan Documents or any such agreement, contract or
lease relating to Indebtedness for money borrowed) if the existence of any such
defaults, singly or in the aggregate, could in the reasonable judgment of the
Required Lenders have a Materially Adverse Effect; PROVIDED, HOWEVER, that for
the purposes of this provision where such a default could result only in a
monetary loss, a Material Adverse Effect shall not be deemed to have occurred
unless the aggregate of such losses would exceed $2,000,000.
(g) Voluntary Bankruptcy Proceeding. A Borrower or any of its
Significant Subsidiaries shall
(i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect),
(ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws,
(iv) apply for or consent to, or fail to contest in a timely
and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, or liquidator of itself
or of a substantial part of its property, domestic or foreign,
(v) admit in writing its inability to pay its debts as
they become due,
(vi) make a general assignment for the benefit of
creditors, or
(vii) take any corporate action for the purpose of
authorizing any of the foregoing.
(h) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against a Borrower or any of its Significant Subsidiaries in
any court of competent jurisdiction seeking
(i) relief under the federal bankruptcy laws (as now or
hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts,
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(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of a Borrower, any of its Significant
Subsidiaries or of all or any substantial part of the assets, domestic
or foreign, of a Borrower or any of its Significant Subsidiaries,
and such case or proceeding shall continue undismissed or unstayed for a period
of 60 consecutive calendar days, or an order granting the relief requested in
such case or proceeding against a Borrower or any of its Significant
Subsidiaries (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(i) Loan Documents. Any event of default or "Event of Default"
under any other Loan Document shall occur.
(j) Failure of Agreements. A Borrower shall challenge the
validity and binding effect of any provision of any Loan
Document after delivery thereof hereunder or shall state in writing its
intention to make such a challenge, or this Agreement or any Security Document
after delivery thereof hereunder, shall for any reason (except to the extent
permitted by the terms hereof or thereof) cease to create a valid and perfected
first priority Lien (except for Permitted Liens) on, or security interest in,
any of the Collateral purported to be covered thereby in favor of the
Administrative Agent.
(k) Judgment. A final, unappealable judgment or order for the
payment of money in an amount that exceeds the uncontested insurance available
therefor by $100,000 or more shall be entered against a Borrower by any court
and such judgment or order shall continue undischarged or unstayed for 30 days.
(l) Attachment. A warrant or writ of attachment or execution or
similar process which exceeds $100,000 in value shall be issued against any
property of a Borrower and such warrant or process shall continue undischarged
or unstayed for 30 days.
(m) ERISA. Any ERISA Event shall occur.
(n) Qualified Audits. The independent certified public
accountants retained by the Borrowers shall refuse to deliver an opinion in
accordance with SECTION 11.1(a) with respect to the annual financial statements
of the Borrowers.
(o) Change of Control. Other than by reason of an IPO, Trivest
Investors shall cease to own, beneficially and of record, 51% of the
outstanding capital stock of WinsLoew or such ownership shall cease to vest in
it/them voting control of WinsLoew, or WinsLoew shall cease to own,
beneficially and of record, directly or indirectly, 100% of the outstanding
capital stock of each of the other Loan Parties, or such ownership shall cease
to vest in it voting control of each such Loan Party or a "Change of Control"
under and as defined in the Senior Note Indenture shall occur.
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SECTION 13.2 Remedies.
(a) Automatic Acceleration and Termination of Facilities. Upon
the occurrence of an Event of Default specified in SECTION 13.1(g) or (h), (i)
the principal of and the interest on the Loans and any Note at the time
outstanding, and all other amounts owed to the Administrative Agent or the
Lenders under this Agreement or any of the other Loan Documents and all other
Secured Obligations, shall thereupon become due and payable without
presentment, demand, protest, or other notice of any kind, all of which are
expressly waived, anything in this Agreement or any of the Loan Documents to
the contrary notwithstanding, and (ii) each Facility and the right of the
Borrowers to request Borrowings under this Agreement shall immediately
terminate.
(b) Other Remedies. If any Event of Default shall have occurred,
and during the continuance of any Event of Default, the Administrative Agent
may, and at the direction of the Required Lenders in their sole and absolute
discretion shall, do any of the following:
(i) declare the principal of and interest on the Loans
and any Note at the time outstanding, and all other amounts owed to
the Administrative Agent or the Lenders under this Agreement or any of
the other Loan Documents and all other Secured Obligations, to be
forthwith due and payable, whereupon the same shall immediately become
due and payable without presentment, demand, protest or other notice
of any kind, all of which are expressly waived, anything in this
Agreement or the Loan Documents to the contrary notwithstanding;
(ii) terminate any Facility and any other right of the
Borrowers to request Borrowings hereunder;
(iii) subject to the provisions of SECTION 9.2, notify, or
request the relevant Borrower to notify, in writing or otherwise, any
Account Debtor or obligor with respect to any one or more of the
Receivables to make payment to the Administrative Agent, for the
benefit of the Lenders, or any agent or designee of the Administrative
Agent, at such address as may be specified by the Administrative Agent
and if, notwithstanding the giving of any notice, any Account Debtor
or other such obligor shall make payments to a Borrower, such Borrower
shall hold all such payments it receives in trust for the
Administrative Agent, for the account of the Lenders, without
commingling the same with other funds or property of, or held by, such
Borrower, and shall deliver the same to the Administrative Agent or
any such agent or designee of the Administrative Agent immediately
upon receipt by such Borrower in the identical form received, together
with any necessary endorsements;
(iv) settle or adjust disputes and claims directly with
Account Debtors and other obligors on Receivables for amounts and on
terms which the Administrative Agent considers advisable and in all
such cases only the net amounts received by the Administrative Agent,
for the account of the Lenders, in payment of such amounts, after
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deductions of costs and attorneys' fees, shall constitute Collateral
and no Borrower shall have no further right to make any such
settlements or adjustments or to accept any returns of merchandise;
(v) enter upon any premises in which Inventory or
Equipment may be located and, without resistance or interference by
any Borrower, take physical possession of any or all thereof and
maintain such possession on such premises or move the same or any part
thereof to such other place or places as the Administrative Agent
shall choose, without being liable to any Borrower on account of any
loss, damage or depreciation that may occur as a result thereof, so
long as the Administrative Agent shall act reasonably and in good
faith;
(vi) require each Borrower to and each Borrower shall,
without charge to the Administrative Agent or any Lender, assemble the
Inventory and Equipment and maintain or deliver it into the possession
of the Administrative Agent or any agent or representative of the
Administrative Agent at such place or places as the Administrative
Agent may designate and as are reasonably convenient to both the
Administrative Agent and the Borrowers;
(vii) at the expense of the Borrowers, cause any of the
Inventory and Equipment to be placed in a public or field warehouse,
and the Administrative Agent shall not be liable to any Borrower on
account of any loss, damage or depreciation that may occur as a result
thereof, so long as the Administrative Agent shall act reasonably and
in good faith;
(viii) without notice, demand or other process, and without
payment of any rent or any other charge, enter any premises of any
Borrower and, without breach of the peace, until the Administrative
Agent, on behalf of the Lenders, completes the enforcement of its
rights in the Collateral, take possession of such premises or place
custodians in exclusive control thereof, remain on such premises and
use the same and any of such Borrower's Equipment, for the purpose of
(A) completing any work in process, preparing any Inventory for
disposition and disposing thereof, and (B) collecting any Receivable,
and the Administrative Agent for the benefit of the Lenders is hereby
granted a license or sublicense and all other rights as may be
necessary, appropriate or desirable to use the Intellectual Property
in connection with the foregoing (including, without limitation, the
right to utilize any logo or other distinctive symbol associated with
the Borrowers in connection with any advertising, promotion or
marketing undertaken by the Administrative Agent or any Lender, and
the rights of such Borrower under all licenses, sublicenses and
franchise agreements shall inure to the Administrative Agent for the
benefit of the Lenders (PROVIDED, HOWEVER, that any use of any
federally registered trademarks as to any goods shall be subject to
the control as to the quality of such goods of the owner of such
trademarks and the goodwill of the business symbolized thereby), and
PROVIDED FURTHER, that such grant of license, sublicense and other
rights in the
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Intellectual Property is not prohibited by any contractual
restrictions other than such as may have been entered into for the
purpose of evading this provision;
(ix) exercise any and all of its rights under any and all
of the Security Documents;
(x) apply any Collateral consisting of cash to the
payment of the Secured Obligations in any order in which the
Administrative Agent, on behalf of the Lenders, may elect or use such
cash in connection with the exercise of any of its other rights
hereunder or under any of the Security Documents; and
(xi) exercise all of the rights and remedies of a secured
party under the Uniform Commercial Code and under any other Applicable
Law, including, without limitation, the right, without notice except
as specified below and with or without taking possession thereof, to
sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any location chosen by the Administrative
Agent, for cash, on credit or for future delivery, and at such price
or prices and upon such other terms as the Administrative Agent may
deem commercially reasonable. Each Borrower agrees that, to the extent
notice of sale shall be required by law, at least 10 days' notice to
the Borrowers of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification, but notice given in any other reasonable manner or at
any other reasonable time shall constitute reasonable notification.
The Administrative Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to
which it was so adjourned.
SECTION 13.3 Application of Proceeds. All proceeds from each sale of,
or other realization upon, all or any part of the Collateral following an Event
of Default shall be applied or paid over as provided in Section 5.10(g).
THE BORROWERS SHALL REMAIN LIABLE JOINTLY AND SEVERALLY AND WILL PAY, ON
DEMAND, ANY DEFICIENCY REMAINING IN RESPECT OF THE SECURED OBLIGATIONS,
TOGETHER WITH INTEREST THEREON AT A RATE PER ANNUM EQUAL TO THE HIGHEST RATE
THEN PAYABLE HEREUNDER ON SUCH SECURED OBLIGATIONS, WHICH INTEREST SHALL
CONSTITUTE PART OF THE SECURED OBLIGATIONS.
SECTION 13.4 Power of Attorney. In addition to the authorizations
granted to the Administrative Agent under SECTION 9.13 or under any other
provision of this Agreement or of any other Loan Document, during the
continuance of an Event of Default, each Borrower hereby irrevocably
designates, makes, constitutes and appoints the Administrative Agent (and all
Persons designated by the Administrative Agent from time to time) as such
Borrower's true and lawful attorney, and agent in fact, and the Administrative
Agent, or any agent of the Administrative Agent, may, without notice to any
Borrower, and at such time or times as the Administrative
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Agent or any such agent in its sole discretion may determine, in the
name of a Borrower, the Administrative Agent or the Lenders,
(a) demand payment of the Receivables,
(b) enforce payment of the Receivables by legal proceedings or
otherwise,
(c) exercise all of the relevant Borrower's rights and remedies
with respect to the collection of Receivables,
(d) settle, adjust, compromise, extend or renew any or all of the
Receivables,
(e) settle, adjust or compromise any legal proceedings brought to
collect the Receivables,
(f) discharge and release the Receivables or any of them,
(g) prepare, file and sign the name of the relevant Borrower on
any proof of claim in bankruptcy or any similar document against any Account
Debtor,
(h) prepare, file and sign the name of the relevant Borrower on
any notice of Lien, assignment or satisfaction of Lien, or similar document in
connection with any of the Collateral,
(i) endorse the name of the relevant Borrower upon any chattel
paper, document, instrument, notice, freight xxxx, xxxx of lading or similar
document or agreement relating to the Receivables, the Inventory or any other
Collateral,
(j) use the stationery of any Borrower and sign the name of the
relevant Borrower to verifications of the Receivables and on any notice to the
Account Debtors,
(k) open the Borrowers' mail,
(l) notify the post office authorities to change the address for
delivery of the Borrowers' mail to an address designated by the Administrative
Agent, and
(m) use the information recorded on or contained in any data
processing equipment and computer hardware and software relating to the
Receivables, Inventory or other Collateral to which any Borrower has access.
SECTION 13.5 Miscellaneous Provisions Concerning Remedies.
(a) Rights Cumulative. The rights and remedies of the
Administrative Agent and the Lenders under this Agreement, the Notes and each
of the Loan Documents shall be cumulative and not exclusive of any rights or
remedies which it or they would otherwise have. In exercising
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such rights and remedies the Administrative Agent and the Lenders may be
selective and no failure or delay by the Administrative Agent or any Lender in
exercising any right shall operate as a waiver of it, nor shall any single or
partial exercise of any power or right preclude its other or further exercise
or the exercise of any other power or right.
(b) Waiver of Marshalling. Each Borrower hereby waives any right
to require any marshalling of assets and any similar right.
(c) Limitation of Liability. Nothing contained in this ARTICLE 13
or elsewhere in this Agreement or in any of the Loan Documents shall be
construed as requiring or obligating the Administrative Agent, any Lender or
any agent or designee of the Administrative Agent or any Lender to make any
demand, or to make any inquiry as to the nature or sufficiency of any payment
received by it, or to present or file any claim or notice or take any action,
with respect to any Receivable or any other Collateral or the monies due or to
become due thereunder or in connection therewith, or to take any steps
necessary to preserve any rights against prior parties, and the Administrative
Agent, the Lenders and their agents or designees shall have no liability to any
Borrower for actions taken pursuant to this ARTICLE 13, any other provision of
this Agreement or any of the Loan Documents so long as the Administrative Agent
or such Lender shall act in good faith and in a commercially reasonable manner.
(d) Appointment of Receiver. In any action under this ARTICLE 13,
the Administrative Agent shall be entitled during the continuance of an Event
of Default, to the fullest extent permitted by Applicable Law, to the
appointment of a receiver, without notice of any kind whatsoever, to take
possession of all or any portion of the Collateral and to exercise such power
as the court shall confer upon such receiver.
SECTION 13.6 Trademark License. Each Borrower hereby grants to the
Administrative Agent for its benefit as Administrative Agent and for the
benefit of the Lenders, the nonexclusive right and license to use the
Trademarks described in the Trademark Security Agreement for the purposes (and
subject to the restrictions) set forth in SECTION 13.2(B)(viii) and for the
purposes of enabling the Administrative Agent to realize on the Collateral and
to permit any purchaser of any portion of the Collateral through a foreclosure
sale or any other exercise of the Administrative Agent's rights and remedies
under this Agreement and the other Security Documents to use, sell or otherwise
dispose of finished goods Collateral bearing any such Trademark. Such right and
license is granted free of charge, without the requirement that any monetary
payment whatsoever be made to the relevant Borrower or any other Person by the
Lenders or the Administrative Agent or any purchaser or purchasers of the
Collateral. Each Borrower hereby represents, warrants, covenants and agrees
that it presently has, and shall continue to have, the right, without the
approval of consent of others, to grant the license set forth in this SECTION
13.6.
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ARTICLE 14
ASSIGNMENTS
SECTION 14.1 Successors and Assigns; Participations.
(a) This Agreement shall be binding upon and inure to the benefit
of the Borrowers, the Lenders, the Administrative Agent, all future holders of
the Notes, and their respective successors and assigns, except that the
Borrowers may not assign or transfer any of their rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Each Lender may assign to one or more Eligible Assignees all
or a portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of the Loans at the time owing
to it and the Notes held by it); PROVIDED, HOWEVER, that (i) such Lender shall
first obtain the written consent of (x) the Administrative Agent, which consent
shall not be unreasonably withheld or delayed and (y) except in the case of an
assignment to a Lender or an Affiliate of a Lender, provided no Default or
Event of Default has occurred and is continuing, WinsLoew, which consent shall
not be unreasonably withheld or delayed, (ii) the amount of the Commitment of
the assigning Lender that is subject to each such assignment (determined as of
the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall in no event be less than
$5,000,000 or less than 100% of the assigning Lender's Commitment if (x) such
assigning Lender's remaining Commitment is less than $5,000,000 or (y) such
assignment is being made at the request of the Borrowers as contemplated
herein, PROVIDED that lesser amounts may be assigned to Lenders and their
Affiliates, (iii) in the case of a partial assignment, the amount of the
Commitment that is retained by the assigning Lender and its Affiliates
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall in no event be less
than the $5,000,000, (iv) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register an Assignment and Acceptance, together with any Note or Notes subject
to such assignment, (v) such assignment shall not, without the consent of the
Borrowers, require the Borrowers to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the
Notes under the blue sky laws of any state, (vi) the representation contained
in SECTION 14.2 hereof shall be true with respect to any such proposed
assignee, and (vii) in the event the Eligible Assignee is a new Lender, the
assigning Lender shall, on the "Effective Date" as defined in the Assignment
and Acceptance, pay to the Administrative Agent solely for its own account an
assignment fee in the amount of $5,000. The assignment fee shall be fully
earned on the "Effective Date" as defined in such Assignment and Acceptance and
shall not be subject to refund or rebate. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date, unless otherwise agreed among
all parties to such Assignment and Acceptance, shall be at least five (5)
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and,
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to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder, and (B) the Lender assignor thereunder
shall, to the extent provided in such assignment, be released from its
obligations under this Agreement.
(c) 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 the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such
Lender assignor 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 the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement
or any other instrument or document furnished pursuant hereto; (ii) such Lender
assignor makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in SECTION 7.1(N) 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
Lender 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 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 and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, 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.
(d) The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the Commitment and Proportionate
Share of, and principal amount of the Loans and owing to, each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrowers, the Administrative Agent and
the Lenders may treat each person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an Eligible Assignee together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance complies with this SECTION 14.1 and has been completed and is in
the form of EXHIBIT D, (i) accept such Assignment and
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Acceptance, (ii) record the information contained therein in the Register,
(iii) give prompt notice thereof to the Lenders and the Borrowers, and (iv)
promptly deliver a copy of such Acceptance and Assignment to the Borrowers.
Within five Business Days after receipt of notice, the Borrowers shall execute
and deliver to the Administrative Agent in exchange for the surrendered Note or
Notes a new Note or Notes to the order of such Eligible Assignee in amounts
equal to the Commitment assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and a new Note or Notes to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes. Each surrendered Note or Notes
shall be cancelled and returned to the Borrowers.
(f) Each Lender may sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment
hereunder and the Loans owing to it and the Notes held by it); PROVIDED,
HOWEVER, that (i) each such participation (other than to a Lender or an
Affiliate of a Lender) shall be in an amount not less than $5,000,000, (ii)
such Lender's obligations under this Agreement (including, without limitation,
its Commitment hereunder) shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iv) such Lender shall remain the holder of the Notes held by
it for all purposes of this Agreement, (v) the Borrowers, 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; PROVIDED, that such Lender may agree with any participant that such
Lender will not, without such participant's consent, agree to or approve any
waivers or amendments which would reduce the principal of or the interest rate
on any Loans, extend the term or increase the amount of the commitments of such
participant, reduce the amount of any fees to which such participant is
entitled, extend any scheduled payment date for principal or release Collateral
securing the Loans (other than Collateral disposed of pursuant to Section 9.7
hereof or otherwise in accordance with the terms of this Agreement or the
Security Documents), and (vi) any such disposition shall not, without the
consent of the Borrowers, require any Borrowers to file a registration
statement with the Securities and Exchange Commission to apply to qualify the
Loans or the Notes under the blue sky law of any state. The Lender selling a
participation to any Person that is not a Lender or an Affiliate of a Lender
shall use all reasonable efforts to give notice thereof to the Borrowers
PROVIDED that failure to give such notice shall not result in liability to such
Lender. Any purchaser of a participation in any Commitment or Loan shall be
entitled to compensation pursuant to SECTIONS 5.15(C) and (D) to the same
extent as if it were a "Lender" but not in any amount greater than that to
which the Lender from which it purchased such participation is entitled. As
used in this SECTION 14.1(F), "Affiliates" shall include any trust,
partnership, limited liability company or other entity that (x) is organized
under the laws of the United States or any state thereof, (y) is engaged in
making, purchasing or otherwise
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investing in commercial loans in the ordinary course of its business and (z) is
organized, managed or sponsored by any Lender.
(g) Any Lender may, in connection with any assignment, proposed
assignment, participation or proposed participation pursuant to this SECTION
14.1, disclose to the assignee, participant, proposed assignee or proposed
participant, any information relating to any Borrower furnished to such Lender
by or on behalf of the Borrowers, PROVIDED that, prior to any such disclosure,
each such assignee, proposed assignee, participant or proposed participant
shall agree with the Borrowers or such Lender (which in the case of an
agreement with only such Lender, the Borrowers shall be recognized as a third
party beneficiary thereof) to preserve the confidentiality of any confidential
information relating to any Borrower received from such Lender.
(h) Notwithstanding any provision of the foregoing to the
contrary, any Lender may pledge its interest in any Loan or Note to a Federal
Reserve Bank.
SECTION 14.2 Representation of Lenders. Each Lender hereby represents
that it will make each Loan hereunder as a commercial loan for its own account
in the ordinary course of its business; PROVIDED, HOWEVER, that subject to
SECTION 14.1 hereof, the disposition of the Notes or other evidence of the
Secured Obligations held by any Lender shall at all times be within its
exclusive control.
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ARTICLE 15
ADMINISTRATIVE AGENT
SECTION 15.1 Appointment of Administrative Agent. Each of the Lenders
hereby irrevocably designates and appoints BankBoston as the Administrative
Agent of such Lender under this Agreement and the other Loan Documents, and
each Lender irrevocably authorizes the Administrative Agent, as the
Administrative Agent for such Lender, to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and such other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement or the other Loan Documents, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or the other Loan Documents or otherwise
exist against the Administrative Agent.
SECTION 15.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care.
SECTION 15.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its trustees, officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable to any Lender (or any
Lender's participants) for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement or the other Loan
Documents (except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any Lender (or any Lender's
participants) for any recitals, statements, representations or warranties made
by a Borrower or any officer thereof contained in this Agreement or the other
Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or the other Loan Documents or for the
existence, value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or the other Loan Documents or any Collateral or
Lien or other interest therein or for any failure of any Borrower to perform
its obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of any
Borrower.
SECTION 15.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice,
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consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex
or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrowers), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless such Note shall have been transferred in
accordance with SECTION 14.1. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Agreement and the other
Loan Documents unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and shall be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 15.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or a Borrower 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 promptly give notice thereof to the Lenders. The Administrative
Agent shall take such action with respect to 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) continue making
Revolving Credit Loans and Acquisition Loans to the Borrowers on behalf of the
Lenders in reliance on the provisions of SECTION 5.7 and take such other
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.
SECTION 15.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor
any of its officers, directors, counsel, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereafter taken, including any review of the
affairs of any Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial (and other)
condition and creditworthiness of each Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such
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documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial (and other) condition and creditworthiness of
each Borrower. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Administrative Agent hereunder
or under the other Loan Documents, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial (and
other) condition or creditworthiness of any Borrower which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
SECTION 15.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Co-Agents in their capacities as such (to the
extent not reimbursed by the Borrowers and without limiting the obligation of
the Borrowers to do so), Ratably, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Administrative Agent and the
Co-Agents in any way relating to or arising out of this Agreement or the other
Loan Documents, or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent and the Co-Agents under or in connection
with any of the foregoing; PROVIDED that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's and/or the Co-Agents' gross
negligence or willful misconduct or resulting solely from transactions or
occurrences that occur at a time after such Lender has assigned all of its
interests, rights and obligations under this Agreement pursuant to SECTION 14.1
or, in the case of a Lender to which an assignment is made hereunder pursuant
to SECTION 14.1, at a time before such assignment. The agreements in this
subsection shall survive the payment of the Notes, the Secured Obligations and
all other amounts payable hereunder and the termination of this Agreement.
SECTION 15.8 Administrative Agent in Its Individual Capacity. The
institution at the time acting as the Administrative Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrowers and their respective Subsidiaries as if it were not
the Administrative Agent hereunder. With respect to its Commitment, the Loans
made or renewed by it and any Note issued to it and any Letter of Credit issued
by it, such institution shall have and may exercise the same rights and powers
under this Agreement and the other Loan Documents and shall be subject to the
same obligations and liabilities as and to the extent set forth herein and in
the other Loan Documents for any other Lender. The terms "Lenders" and
"Required Lenders" or any other term shall, unless the context clearly
otherwise
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indicates, include such institution in its individual capacity as a Lender or
one of the Required Lenders.
SECTION 15.9 Successor Administrative Agent.
(a) The Required Lenders may remove the Administrative Agent at
any time when BankBoston's (or any Lender's which is a successor Administrative
Agent) Proportionate Share is equal to less than 7 1/2%. The Administrative
Agent may resign as Administrative Agent upon thirty (30) days' notice to the
Lenders; PROVIDED, HOWEVER that such resignation shall not take effect until a
successor agent has been appointed. If the Administrative Agent shall be
removed or resign as Administrative Agent under this Agreement, then the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders which successor agent shall be approved by the Borrowers, so long as no
Default or Event of Default has occurred and is continuing (which approval
shall not be unreasonably withheld), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor agent effective upon its
appointment, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Notes. If the Required Lenders have failed
to appoint a successor Administrative Agent within 30 days of the resignation
notice given by the Administrative Agent as provided above, then the
Administrative Agent shall be entitled to appoint a successor agent from among
the Lenders. After any Administrative Agent's removal or resignation hereunder
as Administrative Agent, it shall continue to be responsible for (in accordance
with the terms hereof), and the provisions of Section 15.7 shall inure to its
benefit as to, any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
(b) It is intended that there shall be no violation of any
Applicable Law denying or restricting the right of financial institutions to
transact business as agent in any jurisdiction. It is recognized that, in case
of litigation under any of the Loan Documents, or in case the Administrative
Agent deems that by reason of present or future laws of any jurisdiction the
Administrative Agent might be prohibited from or restricted in exercising any
of the powers, rights or remedies granted to the Administrative Agent or the
Lenders hereunder or under any of the Loan Documents or from holding title to
or a Lien upon any Collateral or from taking any other action which may be
necessary or desirable hereunder or under any of the Loan Documents, the
Administrative Agent may appoint an additional individual or institution as a
separate collateral agent or co-collateral agent which is not so prohibited
from or restricted in taking any of such actions or exercising any of such
powers, rights or remedies. If the Administrative Agent shall appoint an
additional individual or institution as a separate collateral agent or
co-collateral agent as provided above, each and every remedy, power, right,
claim, demand or cause of action intended by any of the Loan Documents to be
exercised by or vested in or conveyed to the Administrative Agent with respect
thereto shall be exercisable by and vested in such separate collateral agent or
co-collateral agent, but only to the extent necessary to enable such separate
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collateral agent or co-collateral agent to exercise such powers, rights and
remedies, and every covenant and obligation necessary to the exercise thereof
by such separate collateral agent or co-collateral agent shall run to and be
enforceable by either of them. Should any instrument from the Lenders be
required by the separate collateral agent or co-collateral agent so appointed
by Administrative Agent in order more fully and certainly to vest in and
confirm to him or it such rights, powers, duties and obligations, including
without limitation indemnification of such collateral agent or co-collateral
agent, any and all of such instruments shall, on request, be executed,
acknowledged and delivered by the Lenders. In case any separate collateral
agent or co-collateral agent, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights,
powers, duties and obligations of such separate collateral agent or
co-collateral agent, so far as permitted by Applicable Law, shall vest in and
be exercised by the Administrative Agent until the appointment of a new
collateral agent or successor to such separate collateral agent or
co-collateral agent.
SECTION 15.10 Co-Agents. For avoidance of doubt, it is expressly
acknowledged and agreed by the Administrative Agent and each Lender for the
benefit of the Co-Agents that no Co-Agent, in such capacity, has any
obligations hereunder.
SECTION 15.11 Documents to be Forwarded. The Administrative Agent
shall deliver to each Lender a copy of the Borrowing Base Certificate delivered
to it pursuant to SECTION 4.11(C) promptly following its receipt thereof.
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ARTICLE 16
MISCELLANEOUS
SECTION 16.1 Notices.
(a) Method of Communication. Except as specifically provided in
this Agreement or in any of the Loan Documents, all notices and the
communications hereunder and thereunder shall be in writing or by telephone,
subsequently confirmed in writing. Notices in writing shall be delivered
personally or sent by certified or registered mail, postage pre-paid, or by
overnight courier, telex or facsimile transmission and shall be deemed received
in the case of personal delivery, when delivered, in the case of mailing, when
receipted for, in the case of overnight delivery, on the next Business Day
after delivery to the courier, and in the case of telex and facsimile
transmission, upon transmittal, provided that in the case of notices to the
Administrative Agent, notice shall be deemed to have been given only when such
notice is actually received by the Administrative Agent. A telephonic notice to
the Administrative Agent, as understood by the Administrative Agent, will be
deemed to be the controlling and proper notice in the event of a discrepancy
with or failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to
it at the following addresses, or any other address of which all the other
parties are notified in writing by such first party:
If to the Borrower: c/o WinsLoew Furniture, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to: Trivest, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000-0000
Attn: General Counsel
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxxxxx Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
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If to the
Administrative Agent: BankBoston, N.A.
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Vice President
Facsimile No.: (000) 000-0000
with a copy to: Hunton & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx, Esq.
Facsimile No.: (000) 000-0000
If to a Lender: At the address of such Lender set forth on
the signature pages hereof.
(c) Administrative Agent's Office. The Administrative Agent
hereby designates its office located at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, or any subsequent office which shall have been specified
for such purpose by written notice to the Borrowers, as the office to which
payments due are to be made and at which Loans will be disbursed.
SECTION 16.2 Expenses. The Borrowers jointly and severally agree to
pay or reimburse on demand all costs and expenses (1) incurred by the
Administrative Agent, including, without limitation, the reasonable fees and
disbursements of counsel, in connection with:
(a) the negotiation, preparation, execution, delivery,
administration, enforcement and termination of this Agreement and each of the
other Loan Documents, whenever the same shall be executed and delivered,
including, without limitation
(i) reasonable out-of-pocket costs and expenses incurred
in connection with the administration and interpretation of this
Agreement and the other Loan Documents;
(ii) the costs and expenses of appraisals of the
Collateral;
(iii) the costs and expenses of lien and title searches
and title insurance;
(iv) the costs and expenses of environmental reports with
respect to the Real Estate; and
(v) taxes, fees and other charges for recording the
Mortgages, filing the Financing Statements and continuations and the
costs and expenses of taking other actions to perfect, protect, and
continue the Security Interests;
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(b) filing continuations with respect to Financing Statements and
the costs and expenses of taking other reasonable actions to perfect, protect,
and continue the Security Interests that the Borrowers do not take, after
demand by the Administrative Agent;
(c) the preparation, execution and delivery of any waiver,
amendment, supplement or consent by the Administrative Agent and the Lenders
relating to this Agreement or any of the Loan Documents;
(d) sums paid or incurred to pay any amount or take any action
required of the Borrowers under the Loan Documents that the Borrowers fail to
pay or take;
(e) costs of inspections and verifications of the Collateral,
including, without limitation, standard per diem fees charged by the
Administrative Agent and charges for travel, lodging, and meals for inspections
of the Collateral and of the Borrowers' operations and books and records not
more often than quarterly and at any time when an Event of Default exists;
(f) standard costs and expenses of forwarding loan proceeds and
collecting checks and other items of payment; and
(g) costs and expenses of preserving and protecting the
Collateral;
(2) incurred by the Administrative Agent or any Lender after an
Event of Default has occurred and is continuing, in connection with:
(a) consulting, after the occurrence of a Default, with one or
more Persons, including appraisers, accountants and lawyers, concerning the
value of any Collateral for the Secured Obligations or related to the nature,
scope or value of any right or remedy of the Administrative Agent or any Lender
hereunder or under any of the Loan Documents, including any review of factual
matters in connection therewith, which expenses shall include the fees and
disbursements of such Persons; and
(b) costs and expenses paid or incurred to obtain payment of the
Secured Obligations, enforce the Security Interests, sell or otherwise realize
upon the Collateral, and otherwise enforce the provisions of the Loan
Documents, or to prosecute or defend any claim in any way arising out of,
related to or connected with, this Agreement or any of the Loan Documents,
which expenses shall include the reasonable fees and disbursements of counsel
and of experts and other consultants retained by the Administrative Agent or
any Lender.
The foregoing shall not be construed to limit any other provisions of the Loan
Documents regarding costs and expenses to be paid by the Borrowers. Each
Borrower hereby authorizes the Administrative Agent and the Lenders to debit
such Borrower's Loan Account (by increasing the principal amount of the
Revolving Credit Loans) in the amount of any such costs and expenses owed by
such Borrower when due.
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SECTION 16.3 Stamp and Other Taxes. The Borrowers will pay any and all
stamp, registration, recordation and similar taxes, fees or charges and shall
indemnify the Administrative Agent and the Lenders against any and all
liabilities with respect to or resulting from any delay in the payment or
omission to pay any such taxes, fees or charges, which may be payable or
determined to be payable in connection with the execution, delivery,
performance or enforcement of this Agreement and any of the Loan Documents or
the perfection of any rights or security interest thereunder, including,
without limitation, the Security Interest.
SECTION 16.4 Setoff. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
during the continuance of any Event of Default, each Lender, any participant
with such Lender in the Loans and each Affiliate of each Lender are hereby
authorized by each Borrower at any time or from time to time, without notice to
any Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by any Lender or any Affiliate of any
Lender or any participant to or for the credit or the account of any Borrower
against and on account of the Secured Obligations irrespective or whether or
not
(a) the Administrative Agent or such Lender shall have made any
demand under this Agreement or any of the Loan Documents, or
(b) the Administrative Agent or such Lender shall have declared
any or all of the Secured Obligations to be due and payable as permitted by
SECTION 13.2 and although such Secured Obligations shall be contingent or
unmatured.
SECTION 16.5 Litigation. EACH BORROWER, THE ADMINISTRATIVE AGENT, EACH
CO-AGENT AND EACH LENDER HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT IN
WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST A BORROWER, THE ADMINISTRATIVE
AGENT, SUCH CO-AGENT OR SUCH LENDER ARISING OUT OF THIS AGREEMENT, THE
COLLATERAL OR ANY ASSIGNMENT THEREOF OR BY REASON OF ANY OTHER CAUSE OR DISPUTE
WHATSOEVER BETWEEN A BORROWER AND THE ADMINISTRATIVE AGENT, ANY CO-AGENT OR ANY
LENDER OF ANY KIND OR NATURE. EACH BORROWER, THE ADMINISTRATIVE AGENT, EACH
CO-AGENT AND EACH LENDER HEREBY AGREES THAT THE FEDERAL COURT OF THE NORTHERN
DISTRICT OF GEORGIA OR, AT THE OPTION OF THE ADMINISTRATIVE AGENT, ANY CO-AGENT
OR ANY LENDER, ANY COURT IN WHICH THE ADMINISTRATIVE AGENT, SUCH CO-AGENT OR
SUCH LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT
MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY, SHALL HAVE NONEXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
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DISPUTES BETWEEN ANY BORROWER AND THE ADMINISTRATIVE AGENT, SUCH CO-AGENT OR
SUCH LENDER, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE LOAN
DOCUMENTS OR TO ANY MATTER ARISING THEREFROM. EACH BORROWER EXPRESSLY SUBMITS
AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING
COMMENCED IN SUCH COURTS, HEREBY WAIVING PERSONAL SERVICE OF THE SUMMONS AND
COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN AND AGREEING THAT SERVICE
OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH BORROWER AT THE ADDRESS OF SUCH
BORROWER SET FORTH IN SECTION 16.1. SHOULD SUCH BORROWER FAIL TO APPEAR OR
ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THIRTY (30)
DAYS AFTER THE MAILING THEREOF, IT SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE NONEXCLUSIVE CHOICE OF FORUM SET
FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY
JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS
AGREEMENT TO ENFORCE SAME IN ANY APPROPRIATE JURISDICTION.
SECTION 16.6 Waiver of Rights. EACH BORROWER HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY WAIVES ALL RIGHTS WHICH THE BORROWER HAS UNDER
CHAPTER 14 OF TITLE 44 OF THE OFFICIAL CODE OF GEORGIA OR UNDER ANY SIMILAR
PROVISION OF APPLICABLE LAW TO NOTICE AND TO A JUDICIAL HEARING PRIOR TO THE
ISSUANCE OF A WRIT OF POSSESSION ENTITLING THE ADMINISTRATIVE AGENT, ANY
CO-AGENT OR ANY LENDER, OR THE SUCCESSORS AND ASSIGNS OF THE ADMINISTRATIVE
AGENT, SUCH CO-AGENT OR SUCH LENDER TO POSSESSION OF THE COLLATERAL UPON EVENT
OF DEFAULT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND WITHOUT
LIMITING ANY OTHER RIGHT WHICH THE ADMINISTRATIVE AGENT, THE CO-AGENTS OR THE
LENDERS MAY HAVE, EACH BORROWER CONSENTS THAT IF THE ADMINISTRATIVE AGENT, ANY
CO-AGENT OR ANY LENDER FILES A PETITION FOR AN IMMEDIATE WRIT OF POSSESSION IN
COMPLIANCE WITH SECTIONS 00-00-000 AND 00-00-000 OF THE OFFICIAL CODE OF
GEORGIA OR UNDER ANY SIMILAR PROVISION OF APPLICABLE LAW, AND THIS WAIVER OR A
COPY HEREOF IS ALLEGED IN SUCH PETITION AND ATTACHED THERETO, THE COURT BEFORE
WHICH SUCH PETITION IS FILED MAY DISPENSE WITH ALL RIGHTS AND PROCEDURES HEREIN
WAIVED AND MAY ISSUE FORTHWITH AN IMMEDIATE WRIT OF POSSESSION IN ACCORDANCE
WITH CHAPTER 14 OF TITLE 44 OF THE OFFICIAL CODE OF GEORGIA OR IN ACCORDANCE
WITH ANY SIMILAR PROVISION OF APPLICABLE LAW, WITHOUT THE NECESSITY OF AN
ACCOMPANYING BOND AS OTHERWISE REQUIRED BY
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SECTION 00-00-000 OF THE OFFICIAL CODE OF GEORGIA OR BY ANY SIMILAR PROVISION
UNDER APPLICABLE LAW. EACH BORROWER HEREBY ACKNOWLEDGES THAT IT HAS READ AND
FULLY UNDERSTANDS THE TERMS OF THIS WAIVER AND THE EFFECT HEREOF.
SECTION 16.7 Consent to Advertising and Publicity. With the prior
written consent of the Borrowers, which consents shall not be unreasonably
withheld, the Administrative Agent, on behalf of the Lenders, may issue and
disseminate to the public information describing the credit accommodation
entered into pursuant to this Agreement, including the name and address of the
Borrowers, the amount, interest rate, maturity, collateral for and a general
description of the credit facilities provided hereunder and of the Borrowers'
business.
SECTION 16.8 Reversal of Payments. The Administrative Agent and each
Lender shall have the continuing and exclusive right to apply, reverse and
re-apply any and all payments to any portion of the Secured Obligations in a
manner consistent with the terms of this Agreement. To the extent a Borrower
makes a payment or payments to the Administrative Agent, for the account of the
Lenders, or any Lender receives any payment or proceeds of the Collateral for
the Borrowers' benefit, which payment(s) or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under
any bankruptcy law, state or federal law, common law or equitable cause, then,
to the extent of such payment or proceeds received, the Secured Obligations or
part thereof intended to be satisfied shall be revived and continued in full
force and effect, as if such payment or proceeds had not been received by the
Administrative Agent or such Lender.
SECTION 16.9 Injunctive Relief. Each Borrower recognizes that, in the
event the Borrowers fail to perform, observe or discharge any of its
obligations or liabilities under this Agreement, any remedy at law may prove to
be inadequate relief to the Administrative Agent and the Lenders; therefore,
each Borrower agrees that if any Event of Default shall have occurred and be
continuing, the Administrative Agent and the Lenders, if the Administrative
Agent or any Lender so requests, shall be entitled to temporary and permanent
injunctive relief without the necessity of proving actual damages.
SECTION 16.10 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrowers to determine whether it is in compliance with any covenant contained
herein, shall, unless this Agreement otherwise provides or unless Required
Lenders shall otherwise consent in writing, be performed in accordance with
GAAP.
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SECTION 16.11 Amendments.
(a) Except as set forth in SUBSECTION (B) below, any term,
covenant, agreement or condition of this Agreement or any of the other Loan
Documents may be amended or waived, and any departure therefrom may be
consented to by the Required Lenders, if, but only if, such amendment, waiver
or consent is in writing signed by the Required Lenders and, in the case of an
amendment (other than an amendment described in SECTION 16.11(D)), by the
Borrowers, provided that no such amendment, unless consented to by the
Administrative Agent, shall alter or affect the rights or responsibilities of
the Administrative Agent, and in any such event, the failure to observe,
perform or discharge any such term, covenant, agreement or condition (whether
such amendment is executed or such waiver or consent is given before or after
such failure) shall not be construed as a breach of such term, covenant,
agreement or condition or as a Default or an Event of Default. Unless otherwise
specified in such waiver or consent, a waiver or consent given hereunder shall
be effective only in the specific instance and for the specific purpose for
which given. In the event that any such waiver or amendment is requested by a
Borrower, the Administrative Agent and the Lenders may require and charge a fee
in connection therewith and consideration thereof in such amount as shall be
determined by the Administrative Agent and the Required Lenders in their
discretion.
(b) Without the prior unanimous written consent of the Lenders,
(i) no amendment, consent or waiver shall (A) increase
the amount or extend the time of the obligation of any Lender to make
Loans or (B) extend the originally scheduled time or times of payment
of the principal of any Loan or (C) alter the time or times of payment
of interest on any Loan or of any fees payable for the account of the
Lenders or (D) alter the amount of the principal of any Loan or
decrease the rate of interest thereon or (E) decrease the amount of
any commitment fee or other fee payable hereunder for the account of
the Lenders or (F) permit any subordination of the principal of or
interest on any Loan or (G) permit the subordination of the Security
Interests in any Collateral,
(ii) no Collateral having an aggregate value greater than
$1,000,000 shall be released by the Administrative Agent in any
12-month period other than in connection with a permitted Asset
Disposition or as otherwise specifically permitted in this Agreement
or the Security Documents nor shall any Collateral be released at a
time when the Administrative Agent is entitled to exercise remedies
hereunder upon Default, nor shall any Borrower or Guarantor be
released from its liability for the Secured Obligations,
(iii) except to the extent expressly provided in SECTION
5.9, the definition "Borrowing Base" shall not be amended,
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(iv) none of the provisions of this Section 16.11, the
definitions "Lenders" or "Required Lenders", or the provisions of
Article 13 shall be amended, and
(v) neither the Administrative Agent nor any Lender
shall consent to any amendment to or waiver of the amortization,
deferral or subordination provisions of the Senior Note Indenture or
any other instrument or agreement evidencing or relating to
obligations of a Borrower that are expressly subordinate to any of the
Secured Obligations if such amendment or waiver would be adverse to
the Lenders in their capacities as Lenders hereunder;
provided, however, that anything herein to the contrary notwithstanding, the
Required Lenders shall have the right to waive any Default or Event of Default
and the consequences hereunder of such Default or Event of Default provided
only that such Default or Event of Default does not arise under Section 13.1(g)
or (h) or out of a breach of or failure to perform or observe any term,
covenant or condition of this Agreement or any other Loan Document (other than
the provisions of Article 13 of this Agreement) the amendment of which requires
the unanimous consent of the Lenders. The Required Lenders shall have the
right, with respect to any Default or Event of Default that may be waived by
them, to enter into an agreement with the Borrower or the Guarantor providing
for the forbearance from the exercise of any remedies provided hereunder or
under the other Loan Documents without thereby waiving any such Default or
Event of Default.
(c) The making of Loans hereunder by the Lenders during the
existence of a Default or Event of Default shall not be deemed to constitute a
waiver of such Default or Event of Default.
(d) Notwithstanding any provision of this Agreement or the other
Loan Documents to the contrary, no consent, written or otherwise, of any
Borrower shall be necessary or required in connection with any amendment to
Article 15 or Section 5.10, and any amendment to such provisions may be
effected solely by and among the Administrative Agent and the Lenders, provided
that no such amendment shall impose any obligation on the Borrowers.
SECTION 16.12 Assignment. All 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 no Borrower may assign or
transfer any of its rights under this Agreement.
SECTION 16.13 Performance of Borrowers' Duties.
(a) Each Borrower's obligations under this Agreement and each of
the Loan Documents shall be performed by the Borrowers at their sole cost and
expense.
(b) If a Borrower shall fail to do any act or thing which it has
covenanted to do under this Agreement or any of the Loan Documents, the
Administrative Agent, on behalf of the Lenders, may (but shall not be obligated
to) do the same or cause it to be done either in the name
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of the Administrative Agent or the Lenders or in the name and on behalf of the
Borrowers, and each Borrower hereby irrevocably authorizes the Administrative
Agent so to act.
SECTION 16.14 Indemnification. Each Borrower agrees, jointly and
severally, to reimburse the Administrative Agent and the Lenders for all costs
and expenses, including reasonable counsel fees and disbursements, incurred,
and to indemnify and hold the Administrative Agent and the Lenders harmless
from and against all losses suffered by, the Administrative Agent or any Lender
in connection with
(a) the exercise by the Administrative Agent or any Lender of any
right or remedy granted to it under this Agreement or any of the Loan
Documents,
(b) any claim, and the prosecution or defense thereof, arising
out of or in any way connected with this Agreement or any of the Loan
Documents, and
(c) the collection or enforcement of the Secured Obligations or
any of them,
other than such costs, expenses and liabilities arising out of the
Administrative Agent's or any Lender's gross negligence or willful misconduct.
SECTION 16.15 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Administrative Agent and the Lenders
and any Persons designated by the Administrative Agent or the Lenders pursuant
to any provisions of this Agreement or any of the Loan Documents shall be
deemed coupled with an interest and shall be irrevocable so long as any of the
Secured Obligations remain unpaid or unsatisfied.
SECTION 16.16 Survival. Notwithstanding any termination of this
Agreement,
(a) until all Secured Obligations have been irrevocably paid in
full or otherwise satisfied, the Administrative Agent, for the benefit of the
Lenders, shall retain its Security Interest and shall retain all rights under
this Agreement and each of the Security Documents with respect to such
Collateral as fully as though this Agreement had not been terminated,
(b) the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this ARTICLE 16 and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before, and
(c) in connection with the termination of this Agreement and the
release and termination of the Security Interests, the Administrative Agent, on
behalf of itself as agent and the Lenders, may require such assurances and
indemnities as it shall reasonably deem necessary or appropriate to protect the
Administrative Agent and the Lenders against loss on account of such
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release and termination, including, without limitation, with respect to credits
previously applied to the Secured Obligations that may subsequently be reversed
or revoked.
SECTION 16.17 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
SECTION 16.18 Severability of Provisions. Any provision of this
Agreement or any Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 16.19 Governing Law. This Agreement, the Notes and the
Security Documents (except to the extent otherwise expressly set forth therein)
shall be deemed to have been made in the State of Georgia and the validity,
construction, interpretation and enforcement hereof and thereof and the rights
of the parties hereto and thereto shall be determined under, governed by and
construed in accordance with the internal laws of the State of Georgia, without
regard to principles of conflicts of law, except that the waiver contained in
the first sentence of Section 16.5 shall be construed in accordance with and
governed by the internal laws of the jurisdiction in which any such action or
proceeding is commenced.
SECTION 16.20 Counterparts. This Agreement 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 shall be binding upon all parties, their successors and assigns, and all of
which taken together shall constitute one and the same agreement.
SECTION 16.21 Reproduction of Documents. This Agreement, each of the
Loan Documents and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by the Administrative Agent or any Lender, and
(c) financial statements, certificates and other information previously or
hereafter furnished to the Administrative Agent or any Lender, may be
reproduced by the Administrative Agent or such Lender by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar
process and such Person may destroy any original document so produced. Each
party hereto stipulates that, to the extent permitted by Applicable Law, any
such reproduction shall be as admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original shall be
in existence and whether or not such reproduction was made by the
Administrative Agent or such Lender in the regular course of business), and any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
SECTION 16.22 Term of Agreement. This Agreement shall remain in effect
from the Agreement Date through the Termination Date and thereafter until all
Secured Obligations shall
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have been irrevocably paid and satisfied in full. No termination of this
Agreement shall affect the rights and obligations of the parties hereto arising
prior to such termination.
SECTION 16.23 Pro-Rata Participation.
(a) Each Lender agrees that if, as a result of the exercise of a
right of setoff, banker's lien or counterclaim or other similar right or the
receipt of a secured claim it receives any payment in respect of the Secured
Obligations, it shall promptly notify the Administrative Agent thereof (and the
Administrative Agent shall promptly notify the other Lenders). If, as a result
of such payment, such Lender receives a greater percentage of the Secured
Obligations owed to it under this Agreement than the percentage received by any
other Lender, such Lender shall purchase a participation (which it shall be
deemed to have purchased simultaneously upon the receipt of such payment) in
the Secured Obligations then held by such other Lenders so that all such
recoveries of principal and interest with respect to all Secured Obligations
owed to each Lender shall be pro rata on the basis of its respective amount of
the Secured Obligations owed to all Lenders, PROVIDED that if all or part of
such proportionately greater payment received by such purchasing Lender is
thereafter recovered by or on behalf of any Borrower from such Lender, such
purchase shall be rescinded and the purchase price paid for such participation
shall be returned to such Lender to the extent of such recovery, but without
interest.
(b) Each Lender which receives such a secured claim shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this SECTION
16.23 to share in the benefits of any recovery on such secured claim.
(c) Each Borrower expressly consents to the foregoing
arrangements and agrees that any holder of a participation in any Secured
Obligation so purchased or otherwise acquired of which a Borrower has received
notice may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by the Borrowers to such
holder as fully as if such holder were a holder of such Secured Obligation in
the amount of the participation held by such holder.
SECTION 16.24 Interest and Charges. The Borrowers, the Administrative
Agent and the Lenders hereby agree that (a) the only charge imposed by the
Lenders upon the Borrowers for the use of money in connection with the Loans is
and shall be the interest expressed herein (including but not limited to
interest calculated at the Default Rate under the circumstances provided in
this Agreement), as provided in ARTICLE 2 and in the Notes, and (b) all other
charges imposed by the Administrative Agent or the Lenders upon the Borrowers
in connection with the Loans, including without limitation any origination fee,
Administrative Agent's fee, unused facility fee and letter of credit fee, are
and shall be deemed to be charges made to compensate the Administrative Agent
or the Lenders, as the case may be, for administrative services and costs, and
other services and costs performed and incurred, and to be performed and
incurred, by them
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in connection with the credit facilities implemented pursuant to this
Agreement, and shall under no circumstances be deemed to be charges for the use
of money.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers in several counterparts all as of
the day and year first written above.
[Corporate Seal] BORROWERS:
Attest: WINSLOEW FURNITURE, INC.
By: By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
--------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------- ---------------------------------
Title: Title: Vice President & Chief Financial
------------------------- Officer
---------------------------------
[Corporate Seal] WINSTON FURNITURE COMPANY OF ALABAMA, INC.
Attest:
By: By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
--------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------- ---------------------------------
Title: Title: Vice President & Chief Financial
------------------------- Officer
---------------------------------
[Corporate Seal] LOEWENSTEIN, INC.
Attest:
By: By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
--------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------- ---------------------------------
Title: Title: Vice President & Treasurer
------------------------- ---------------------------------
[Corporate Seal]
Attest: TEXACRAFT, INC.
By: By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
--------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------- ---------------------------------
Title: Title: Vice President & Treasurer
------------------------- ---------------------------------
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[Corporate Seal]
TROPIC CRAFT, INC.
Attest:
By: By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
--------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------- ---------------------------------
Title: Title: Vice President & Treasurer
------------------------- ---------------------------------
[Corporate Seal]
WINSTON PROPERTIES, INC..
Attest:
By: By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
--------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------- ---------------------------------
Title: Title: Vice President & Treasurer
------------------------- ---------------------------------
[Corporate Seal]
POMPEII FURNITURE CO., INC.
Attest:
By: By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
--------------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxxxxxxx, Xx.
-------------------------- ---------------------------------
Title: Title: Vice President & Chief Financial
------------------------- Officer
---------------------------------
152
161
ADMINISTRATIVE AGENT:
BANKBOSTON, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
162
CO-AGENTS:
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
163
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Executive Director
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxx
Facsimile No.: (000) 000-0000
164
LENDERS:
BANKBOSTON, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address: 000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
165
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
166
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Executive Director
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxx
Facsimile No.: (000) 000-0000
167
ANTARES CAPITAL CORP.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
Address: 000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
168
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Associate
Address: Xxx Xxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
169
GMAC BUSINESS CREDIT, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
000
XXXXXXXX XXXX, XXXXXXX
By: /s/ Xxxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
Address: 00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
171
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Duly Authorized Signatory
Address: 00 X. XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: WinsLoew Account Manager
Facsimile No.: (000) 000-0000
With copies (other than borrowing requests) to:
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Region Counsel-WinsLoew
Facsimile No.: (000) 000-0000
172
BANK LEUMI LE ISRAEL BM MIAMI
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
173
COMERICA BANK
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
Address: One Detroit Center
000 Xxxxxxxx Xxxxxx
Mail Code 3280
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
174
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Address: 000 Xxxxxxxxx Xxxxxx, XX
XX-000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
175
ANNEX B
PRICING MATRIX
BASE RATE REVOLVING EURODOLLAR RATE
CREDIT, TERM LOAN REVOLVING CREDIT,
A, AND ACQUISITION TERM LOAN A AND
TOTAL FUNDED DEBT TO FACILITIES ACQUISITION
TIER EBITDA RATIO FACILITIES
Tier V > 5.25:1 1.00% 3.00%
=> 4.50:1 and
Tier IV <= 5.25:1 0.75% 2.75%
=> 3.75:1 and
Tier III < 4.50:1 0.50% 2.50%
=> 3.00:1 and
Tier II < 3.75:1 0.25% 2.25%
Tier I < 3.00:1 0 2.00%
EURODOLLAR RATE
BASE RATE TERM LOAN TERM LOAN B AND
B AND TERM LOAN C TERM LOAN C
TIER FACILITIES FACILITIES COMMITMENT FEE
Tier V 1.50% 3.50% .50%
Tier IV 1.25% 3.25% .50%
Tier III 1.25% 3.25% .375%
Tier II 1.25% 3.25% .375%
Tier I 1.00% 3.00% .375%
