1
Exhibit 10.1
CREDIT AGREEMENT
Dated as of April 12, 1999
among
XXXXX, INC.,
NATIONSBANK, N.A.,
as Administrative Agent,
Letter of Credit Issuing Lender,
and Lender,
FIRST UNION NATIONAL BANK,
as Syndication Agent and Lender,
and
WACHOVIA BANK, N.A.,
as Documentation Agent and Lender
NATIONSBANC XXXXXXXXXX SECURITIES L.L.C.
as Lead Arranger and Book Manager
2
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................1
1.1 Certain Defined Terms.......................................1
1.2 Other Interpretive Provisions..............................23
1.3 Accounting Principles......................................24
ARTICLE II THE CREDITS......................................................24
2.1 Amounts and Terms of Commitments...........................24
2.2 Loan Accounts..............................................25
2.3 Procedure for Borrowing....................................26
2.4 Conversion and Continuation Elections for Borrowings.......26
2.5 Voluntary Termination or Reduction of Commitments..........28
2.6 Optional Prepayments.......................................28
2.7 Repayment..................................................29
2.8 Interest...................................................29
2.9 Fees.......................................................30
(a) Arrangement, Agency Fees..........................30
(b) Upfront Fees......................................30
(c) Facility Fees.....................................30
2.10 Computation of Fees and Interest...........................30
2.11 Payments by the Company....................................31
2.12 Payments by the Lenders to the Administrative Agent........31
2.13 Sharing of Payments........................................33
ARTICLE III THE LETTERS OF CREDIT...........................................33
3.1 The Letter of Credit Subfacility...........................33
3.2 Issuance, Amendment and Renewal of Letters of Credit.......35
3.3 Risk Participations, Drawings and Reimbursements...........38
3.4 Repayment of Participations................................40
3.5 Role of the Issuing Lenders................................40
3.6 Obligations Absolute.......................................41
3.7 Cash Collateral Pledge.....................................43
3.8 Letter of Credit Fees......................................43
3.9 Uniform Customs and Practice...............................43
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY...........................44
4.2 Illegality.................................................45
4.3 Increased Costs and Reduction of Return....................46
i
3
4.4 Funding Losses.............................................47
4.5 Inability to Determine Rates...............................48
4.6 Certificates of Lenders....................................48
4.7 Substitution of Lenders....................................48
4.8 Survival...................................................49
ARTICLE V CONDITIONS PRECEDENT..............................................49
5.1 Conditions to Effectiveness................................49
(a) Agreement and Notes...............................49
(c) Organization Documents............................49
(d) Legal Opinion.....................................50
(e) Payment of Fees...................................50
(f) Certificate.......................................50
(g) Year 2000.........................................50
(h) Other Documents...................................51
(a) Notice, Application...............................51
(b) Continuation of Representations and Warranties....51
(c) No Existing Default...............................51
ARTICLE VI REPRESENTATIONS AND WARRANTIES...................................51
6.1 Corporate Existence and Power..............................52
6.2 Corporate Authorization; No Contravention..................52
6.3 Governmental Authorization.................................53
6.4 Binding Effect.............................................53
6.5 Litigation.................................................53
6.6 No Default.................................................53
6.7 ERISA Compliance...........................................53
6.8 Use of Proceeds; Margin Regulations........................54
6.9 Title to Properties........................................55
6.10 Taxes......................................................55
6.11 Financial Condition........................................55
6.12 Environmental Matters......................................56
6.13 Regulated Entities.........................................56
6.14 No Burdensome Restrictions.................................56
6.15 Copyrights, Patents, Trademarks and Licenses, etc..........56
6.16 Subsidiaries...............................................56
6.17 Insurance..................................................56
6.18 Swap Obligations...........................................57
6.19 Full Disclosure............................................57
6.20 Year 2000..................................................57
ARTICLE VII AFFIRMATIVE COVENANTS...........................................57
7.1 Financial Statements.......................................57
7.2 Certificates; Other Information............................58
ii
4
7.3 Notices....................................................59
7.4 Preservation of Corporate Existence, Etc...................60
7.6 Insurance..................................................61
7.7 Payment of Obligations.....................................61
7.8 Compliance with Laws.......................................61
7.9 Compliance with ERISA......................................61
7.10 Inspection of Property and Books and Records...............62
7.11 Environmental Laws.........................................62
7.12 Use of Proceeds............................................62
7.13 Year 2000..................................................62
ARTICLE VIII NEGATIVE COVENANTS.............................................62
8.1 Financial Condition Covenants..............................63
(a) Total Debt to EBITDA Ratio........................63
(b) Interest Coverage Ratio...........................63
8.2 Limitation on Liens........................................63
8.3 Disposition of Assets......................................65
8.4 Consolidations and Mergers.................................66
8.5 Loans and Investments......................................67
8.6 Limitation on Subsidiary Indebtedness......................68
8.7 Transactions with Affiliates...............................68
8.8 Use of Proceeds............................................68
8.9 Swap Contracts.............................................69
8.10 Restricted Payments........................................69
8.11 ERISA......................................................69
8.12 Change in Business.........................................70
8.13 Accounting Changes.........................................70
8.14 HSW Mortgage Loan..........................................70
ARTICLE IX EVENTS OF DEFAULT................................................70
9.1 Event of Default...........................................70
(a) Non-Payment.......................................70
(b) Representation or Warranty........................70
(c) Specific Defaults.................................71
(d) Other Defaults....................................71
(e) Cross-Default.....................................71
(f) Insolvency; Voluntary Proceedings.................71
(g) Involuntary Proceedings...........................71
(h) ERISA.............................................72
(i) Judgments.........................................72
(j) Change of Control.................................73
9.2 Remedies...................................................73
9.3 Rights Not Exclusive.......................................73
iii
5
ARTICLE X THE ADMINISTRATIVE AGENT..........................................74
10.1 Appointment and Authorization; "Administrative Agent"......74
10.2 Delegation of Duties.......................................75
10.4 Reliance by Administrative Agent...........................75
10.5 Notice of Default..........................................76
10.6 Credit Decision............................................76
10.7 Indemnification of Administrative Agent....................77
10.8 Administrative Agent in Individual Capacity................78
10.9 Successor Administrative Agent.............................78
10.10 Withholding Tax............................................79
ARTICLE XI MISCELLANEOUS....................................................81
11.1 Amendments and Waivers.....................................81
11.2 Notices....................................................82
11.3 No Waiver; Cumulative Remedies.............................83
11.4 Costs and Expenses.........................................83
11.5 Company Indemnification....................................84
11.6 Payments Set Aside.........................................84
11.7 Successors and Assigns.....................................85
11.8 Assignments, Participations, Etc...........................85
11.9 Confidentiality............................................87
11.10 Set-off....................................................88
11.11 Notification of Addresses, Lending Offices, Etc............88
11.12 Counterparts...............................................89
11.13 Severability...............................................89
11.14 No Third Parties Benefited.................................89
11.15 Governing Law and Jurisdiction.............................89
11.16 Waiver of Jury Trial.......................................90
11.17 Pari Passu Obligations.....................................90
11.18 Entire Agreement...........................................90
SCHEDULES
Schedule 2.1 Commitments and Pro Rata Shares
Schedule 6.7 ERISA
Schedule 6.16 Subsidiaries and Minority Interests
Schedule 8.2 Permitted Liens
Schedule 11.2 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
iv
6
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Promissory Note
v
7
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of April 12,1999, among XXXXX,
INC., a North Carolina corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (collectively the
"Lenders"; individually each a "Lender"), FIRST UNION NATIONAL BANK, as
syndication agent, WACHOVIA BANK, N.A., as documentation agent, NATIONSBANK,
N.A., as letter of credit issuing lender, and NATIONSBANK, N.A., as
administrative agent for the Lenders.
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following
meanings:
Acquisition means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or any
other combination with another Person (other than a Person that is a
Subsidiary) provided that the Company or the Subsidiary is the
surviving entity.
Administrative Agent means NationsBank in its capacity as
agent for the Lenders hereunder, and any successor agent arising under
Section 10.9.
Administrative Agent-Related Persons means NationsBank and any
successor to NationsBank as agent arising under Section 10.9 and any
successor to NationsBank as letter of credit issuing bank hereunder,
together with their respective Affiliates (including, in the case of
NationsBank, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
Administrative Agent's Payment Office means the address for
payments set forth on Schedule 11.2 or such
8
other address as the Administrative Agent may from time to time
specify.
Affiliate means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities or membership interests, by contract or
otherwise.
Agreement means this Credit Agreement.
Applicable Margin means, with respect to any Offshore Rate
Loan (and with respect to the L/C Fee Rate), (a) initially, 0.450% per
annum, and (b) beginning on any date on which the Applicable Margin is
to be adjusted pursuant to the sentence following the table below, the
rate per annum set forth in the table below opposite the applicable
Total Debt to EBITDA Ratio:
Total Debt Applicable
to EBITDA Ratio Margin
--------------- ----------
Less than or equal
to 0.50 to 1 0.350%
Greater than 0.50 to 1
but less than or equal
to 1.25 to 1 0.450%
Greater than 1.25 to 1
but less than or equal
to 2.00 to 1 0.550%
Greater than 2.00 to 1 0.750%
The Applicable Margin for all Offshore Rate Loans (and for purposes of
the L/C Fee Rate) shall be adjusted, to the extent applicable, 46 days
(or, in the case of the last fiscal quarter of any year, 101 days)
after the end of each fiscal quarter (or, if earlier, 10 days following
delivery by the Company of the financial statements required by
subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance
Certificate required by subsection 7.2(a) for
2
9
such fiscal quarter), based on the Total Debt to EBITDA Ratio as of the
last day of such fiscal quarter; it being understood that if the
Company fails to deliver the financial statements required by
subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance
Certificate required by subsection 7.2(a) by the 46th day (or, if
applicable, the 101st day) after any fiscal quarter, the Applicable
Margin shall be 0.750% until such financial statements and Compliance
Certificate are delivered.
Arranger means NationsBanc Xxxxxxxxxx Securities L.L.C.
Assignee - see subsection 11.8(a).
Assignment and Acceptance - see subsection 11.8(a).
Attorney Costs means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all
reasonable disbursements of internal counsel provided that all
attorneys' fees shall be determined without regard to any statutory
presumption based on the standard hourly rates for such attorney's and
the actual hours expended.
Bankruptcy Code means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ss.101, et seq.).
Base Rate means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by
NationsBank in Charlotte, North Carolina, as its "prime rate." (The
"prime rate" is a rate set by NationsBank based upon various factors
including NationsBank's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such
announced rate.) Any change in the prime rate announced by NationsBank
shall take effect at the opening of business on the day specified in
the public announcement of such change.
Base Rate Loan means a Loan that bears interest based on the
Base Rate.
3
10
Borrowing means a borrowing hereunder consisting of Loans of
the same Type made to the Company on the same day by one or more
Lenders under Article II and, other than in the case of Base Rate
Loans, having the same Interest Period.
Borrowing Date means any date on which a Borrowing occurs
under Section 2.3.
Business Day means any day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte are authorized or
required by law to close and, if the applicable Business Day relates to
any Offshore Rate Loan, means such a day on which dealings are carried
on in the London offshore dollar interbank market.
Capital Adequacy Regulation means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
Cash Collateralize means to pledge and deposit with or deliver
to the Administrative Agent, for the benefit of the Administrative
Agent, the Issuing Lenders and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to documentation
in form and substance satisfactory to the Administrative Agent and the
Required Lenders. Derivatives of such term shall have corresponding
meanings. Cash collateral shall be maintained in blocked accounts at
NationsBank or, with NationsBank's consent, the applicable Issuing
Lender.
Change of Control means any of the following events:
(a) any Person or group (within the meaning of Rule 13d-5 of
the SEC under the Securities Exchange Act of 1934 as in effect on the
date hereof) (other than the Van Every Family) shall become the
Beneficial Owner (as defined in Rule 13d-3 of the SEC under the
Securities Exchange Act of 1934 as in effect on the date hereof) of 20%
or more of the capital stock or other equity interests of the Company
the holders of which are entitled under ordinary circumstances
(irrespective of whether at the time the holders of such stock or other
equity interests shall have or might have voting power by reason of the
happening of any contingency)
4
11
to vote for the election of the directors of the Company; or
(b) a majority of the members of the Board of Directors of the
Company shall cease to be Continuing Members.
Code means the Internal Revenue Code of 1986, and regulations
promulgated thereunder.
Commitment - see Section 2.1. As of the Effective Date, the
amount of the combined Commitments of all Lenders is $60,000,000.
Company - see the preamble to this Agreement.
Compliance Certificate means a certificate substantially in
the form of Exhibit C.
Computation Period means any period of four consecutive fiscal
quarters ending on the last day of a fiscal quarter.
Contingent Obligation means, as to any Person, without
duplication, any direct or indirect liability of such Person, whether
or not contingent, with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other obligation
(the "primary obligations") of another Person (the "primary obligor"),
including any obligation of such Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security therefor,
(ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof (each a "Guaranty Obligation"); (b) with respect to any
Surety Instrument issued for the account of such Person or as to which
such Person is otherwise liable for reimbursement of drawings or
payments; or (c) in respect of any Swap
5
12
Contract. The amount of any Contingent Obligation shall (a) in the case
of Guaranty Obligations, be deemed equal to the stated or determinable
amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (b) in the
case of other Contingent Obligations, be equal to the maximum
reasonably anticipated liability in respect thereof.
Continuing Member means a member of the Board of Directors of
the Company who either (a) was a member of the Company's Board of
Directors on the Effective Date and has been such continuously
thereafter or (b) became a member of such Board of Directors after the
Effective Date and whose election or nomination for election was
approved by a vote of the majority of the Continuing Members then
members of the Company's Board of Directors.
Contractual Obligation means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other document to which
such Person is a party or by which it or any of its property is bound.
Conversion/Continuation Date means any date on which, under
Section 2.4, the Company (a) converts Loans of one Type to the other
Type or (b) continues Offshore Rate Loans for a new Interest Period.
Credit Extension means and includes (a) the making of any Loan
hereunder and (b) the Issuance of any Letter of Credit hereunder.
Deferred Notes - see Section 8.6.
Disclosure Memorandum means the disclosure memorandum dated
May 7, 1999 of the Company delivered to the Agent and the Lenders on or
before the Effective Date.
Dollars, dollars and $ each mean lawful money of the United
States.
EBIT means, for any Computation Period, the Company's
consolidated earnings from continuing operations for such period, plus,
to the extent deducted in determining such earnings, Interest Expense
and income taxes, minus, to the
6
13
extent included in determining such earnings, any income tax refunds.
EBITDA means, for any Computation Period, the Company's
consolidated earnings from continuing operations for such period, plus,
to the extent deducted in determining such earnings, Interest Expense,
income taxes, depreciation and amortization, minus, to the extent
included in determining such earnings, any income tax refunds.
Effective Amount means, with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit
occurring on such date, any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letter of
Credit or any reduction in the maximum amount available for drawing
under Letters of Credit taking effect on such date.
Effective Date - see Section 5.1.
Eligible Assignee means (a) a commercial bank organized under
the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the OECD),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such bank
is acting through a branch or agency located in the United States; and
(c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of
a Person of which a Lender is a Subsidiary, or (iii) a Person of which
a Lender is a Subsidiary.
Environmental Claims means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for
release or injury to the environment.
7
14
Environmental Laws means all federal, state or local laws,
statutes, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental and human health
matters.
ERISA means the Employee Retirement Income Security Act of
1974, and the regulations promulgated thereunder.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
ERISA Event means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension 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) or a substantial cessation of operations which is
treated as such a withdrawal; (c) a complete or partial withdrawal by
the Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Pension
Plan amendment as a termination under Section 4041 or 4041A of ERISA or
the commencement of proceedings by the PBGC to terminate a Pension Plan
or Multiemployer Plan; (e) an event or condition which 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
Pension Plan or Multiemployer Plan; or (f) the imposition of any
liability under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or any ERISA
Affiliate.
Event of Default means any of the events or circumstances
specified in Section 9.1.
Facility Fee Rate means (a) initially, 0.175% per annum, and
(b) beginning on any date on which the Facility Fee Rate is to be
adjusted pursuant to the sentence following the table below, the rate
per annum set forth in the table below opposite the applicable Total
Debt to EBITDA Ratio:
8
15
Total Debt to Facility
EBITDA Ratio Fee Rate
------------- --------
Less than or equal
to 0.50 to 1 0.150%
Greater than 0.50
to 1 but less than
or equal to 1.25 to 1 0.175%
Greater than 1.25 to 1
but less than or equal
to 2.00 to 1 0.200%
Greater than 2.00 to 1 0.250%
The Facility Fee Rate shall be adjusted, to the extent applicable, 46
days (or, in the case of the last fiscal quarter of any year, 101 days)
after the end of each fiscal quarter (or, if earlier, 10 days following
delivery by the Company of the financial statements required by
subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance
Certificate required by subsection 7.2(a) for such fiscal quarter),
based on the Total Debt to EBITDA Ratio as of the last day of such
fiscal quarter; it being understood that if the Company fails to
deliver the financial statements required by subsection 7.1(a) or
7.1(b), as applicable, and the related Compliance Certificate required
by subsection 7.2(a) by the 46th day (or, if applicable, the 101st day)
after any fiscal quarter, the Facility Fee Rate shall be 0.250% until
such financial statements and Compliance Certificate are delivered.
Federal Funds Rate means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
9
16
Federal funds transactions in New York City selected by the
Administrative Agent.
FRB means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
Further Taxes means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to Section 4.1.
GAAP means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
Governmental Authority means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
Guaranty Obligation has the meaning specified in the
definition of Contingent Obligation.
HSW Mortgage Loan means the mortgage loan in the principal
amount of $95,000,000 owing by the Company to HSW Mortgage Corp. and
secured by a deed of trust on the real property of the Company
contiguous to and including its corporate headquarters located at 0000
Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx.
Honor Date has the meaning specified in subsection 3.3(b).
10
17
Indebtedness of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into
in the ordinary course of business on ordinary terms); (c) all
reimbursement or payment obligations of such Person with respect to
Surety Instruments; (d) all obligations of such Person evidenced by
notes, bonds, debentures or similar instruments; (e) all indebtedness
of such Person created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property);
(f) all obligations of such Person with respect to capital leases which
should be recorded on a balance sheet of such Person in accordance with
GAAP; (g) all indebtedness of the types referred to in clauses (a)
through (f) above secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, provided
that the amount of any such Indebtedness shall be deemed to be the
lesser of the face principal amount thereof and the fair market value
of the property subject to such Lien; and (h) all Guaranty Obligations
of such Person in respect of indebtedness or obligations of others. For
all purposes of this Agreement, the Indebtedness of any Person shall
include all Indebtedness of any partnership or joint venture in which
such Person is a general partner or a joint venturer to the extent of
such Person's liability therefor; provided that to the extent that any
such indebtedness is expressly non-recourse to such Person it shall not
be included as Indebtedness.
Indemnified Liabilities - see Section 11.5.
Indemnified Person - see Section 11.5.
Independent Auditor - see subsection 7.1(a).
Insolvency Proceeding means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental
11
18
Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors
or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors; in each case undertaken under any U.S.
Federal, state or foreign law, including the Bankruptcy Code.
Interest Coverage Ratio means, for any Computation Period, the
ratio of (a) EBIT for such Computation Period, to (b) Interest Expense
for such Computation Period.
Interest Expense means for any period, without duplication,
the consolidated interest expense (whether paid or accrued) of the
Company and its Subsidiaries for such period (including all imputed
interest on capital leases) plus the interest component of synthetic
leases (regardless of the accounting treatment of the synthetic leases)
plus consolidated yield or discount accrued during such period on the
aggregate outstanding investment or claim held by purchasers, assignees
or other transferees of (or of interests in) receivables of the Company
and its Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
Interest Payment Date means, as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan
and, as to any Base Rate Loan, the last Business Day of each calendar
quarter, provided that if any Interest Period for an Offshore Rate Loan
exceeds three months, each three-month anniversary of the first day of
such Interest Period also shall be an Interest Payment Date.
Interest Period means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which such Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Company in its Notice
of Borrowing or Notice of Conversion/Continuation, as the case may be;
provided that:
12
19
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, the result of such extension would be
to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding
Business Day;
(ii) any Interest Period for an Offshore Rate Loan
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 end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii) no Interest Period for any Loan shall extend
beyond the Termination Date.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
Issuance Date has the meaning specified in subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to issue or
to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
Issuing Lender means NationsBank in its capacity as issuer of
one or more Letters of Credit hereunder, together with (i) any
replacement letter of credit issuer arising under subsection 10.1(b) or
Section 10.9 and (ii) any other Lender or any Affiliate of a Lender
which the Administrative Agent and the Company have approved in writing
as an "Issuing Lender" hereunder.
L/C Advance means each Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
L/C Amendment Application means an application form for
amendment of an outstanding standby letter of credit as
13
20
shall at any time be in use by the applicable Issuing Lender, as such
Issuing Lender shall request.
L/C Application means an application form for issuance of a
standby letter of credit as shall at any time be in use by the
applicable Issuing Lender, as such Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Loans under
subsection 3.3(d).
L/C Commitment means the commitment of the Issuing Lenders to
Issue, and the commitment of the Lenders severally to participate in,
Letters of Credit from time to time Issued or outstanding under Article
III in an aggregate amount not to exceed on any date the lesser of $
10,000,000 and the combined Commitments; it being understood that the
L/C Commitment is a part of the combined Commitments rather than a
separate, independent commitment.
L/C Fee Rate means, at any time, the Applicable Margin;
provided that upon notice to the Company from the Administrative Agent
(acting at the request or with the consent of the Required Lenders)
during the existence of any Event of Default, and for so long as such
Event of Default continues, such rate shall be increased by 2%.
L/C Obligations means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit,
including all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the applicable
Issuing Lender's standard form documents for letter of credit
issuances.
Lender - see the preamble to this Agreement. References to the
"Lenders" shall include each Issuing Lender in its capacity as such;
for purposes of clarification only, to the extent that any Issuing
Lender may have any rights or obligations in addition to those of
14
21
the other Lenders due to its status as Issuing Lender, its status as
such will be specifically referenced.
Lending Office means, as to any Lender, the office or offices
of such Lender specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on Schedule
11.2, or such other office or offices as such Lender may from time to
time notify the Company and the Administrative Agent.
Letter of Credit means any standby letter of credit Issued by
an Issuing Lender pursuant to Article III.
Lien means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not including the interest
of a lessor under an operating lease).
Loan means an extension of credit by a Lender to the Company
under Article II or Article III in the form of a Loan, which may be a
Base Rate Loan or an Offshore Rate Loan (each a "Type" of Loan), or L/C
Advance.
Loan Documents means this Agreement, any Notes and the
L/C-Related Documents.
Margin Stock means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
Material Adverse Effect means a material adverse change in, or
a material adverse effect upon, the operations, business, properties,
assets, liabilities (actual or contingent), or financial condition of
the Company and its Subsidiaries taken as a whole.
Material Financial Obligations means Indebtedness or
Contingent Obligations of the Company or any Subsidiary or obligations
of the Company or any Subsidiary in respect of any Securitization
Transaction, in an aggregate principal amount (for all applicable
Indebtedness, Contingent
15
22
Obligations and obligations in respect of Securitization Transactions)
equal to or greater than $7,500,000.
Multiemployer Plan means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
NationsBank means NationsBank, N.A., a national banking
association.
Note means a promissory note executed by the Company in favor
of a Lender pursuant to subsection 2.2(b), in substantially the form of
Exhibit E.
Notice of Borrowing means a notice in substantially the form
of Exhibit A.
Notice of Conversion/Continuation means a notice in
substantially the form of Exhibit B.
Obligations means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Lender, the Administrative Agent or any other
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
or now existing or hereafter arising.
Offshore Rate means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%)
determined by the Administrative Agent as follows:
Offshore Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for
any Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward, if necessary, to an integral
multiple of 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from
time to time by the FRB for determining the maximum reserve
16
23
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities");
and
"LIBOR" means, for any Offshore Rate Loan for any
Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100th of 1%) appearing on Dow
Xxxxx (Telerate) Page 3750 (or any successor or equivalent
page), as the London interbank offered rate for deposits in
U.S. Dollars and in the approximate amount of the Loan to be
made or continued as, or converted into, such Offshore Rate
Loan at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Dow Xxxxx
(Telerate) Page 3750, the relevant rate shall be the
arithmetic mean of all such rates. If for any reason such rate
is not available, the term "LIBOR" shall mean, for any
Offshore Rate Loan for any Interest Period therefor,
(a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) appearing on
Reuters Screen LIBO Page as the London interbank
offered rate for deposits in the Applicable Currency
and in the approximate amount of the Loan to be made
or continued as, or converted into, such Offshore
Rate Loan at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such
Interest Period for a term comparable to such
Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the
relevant rate shall be the arithmetic mean of all
such rates, or
(b) if no rate is available on the Reuters
Screen LIBO page, then the rate determined by the
Administrative Agent at which the Applicable Currency
in the approximate amount of the loan to be made or
continued as, or converted into, such Offshore Rate
Loan is offered by leading banks in the London
interbank market at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of the
applicable Interest
17
24
Period (rounded upwards, if necessary, to the nearest
1/100th of 1%).
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in
the Eurodollar Reserve Percentage.
Offshore Rate Loan means a Loan that bears interest based on
the Offshore Rate.
Organization Documents means (i) for any corporation, the
certificate of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation, (ii) for any partnership or joint
venture, the partnership or joint venture agreement and any other
organizational document of such entity, (iii) for any limited liability
company, the certificate or articles of organization, the operating
agreement and any other organizational document of such limited
liability company, (iv) for any trust, the declaration of trust, the
trust agreement and any other organizational document of such trust and
(v) for any other entity, the document or agreement pursuant to which
such entity was formed and any other organizational document of such
entity.
Other Taxes means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
Participant - see subsection 11.8(d).
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
Pension Plan means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA, other than a Multiemployer
Plan, with respect to which the Company or any ERISA Affiliate may have
any liability.
Permitted Liens - see Section 8.2.
18
25
Permitted Swap Obligations means all obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising
under Swap Contracts, provided that such obligations are (or were)
entered into by such Person in the ordinary course of business for the
purpose of directly mitigating risks associated with (a) raw materials
purchases, (b) interest or currency exchange rates, (c) operating
expenses or other anticipated obligations of such Person, (d) other
liabilities, commitments or assets held or reasonably anticipated by
such Person or (e) changes in the value of securities issued by such
Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder.
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section
3(3) of ERISA), other than a Multiemployer Plan, with respect to which
the Company or any ERISA Affiliate may have any liability, and includes
any Pension Plan.
Pro Rata Share means for any Lender at any time the proportion
(expressed as a decimal, rounded to the ninth decimal place) which such
Lender's Commitment constitutes of the combined Commitments (or, after
the Commitments have terminated, which (i) the principal amount of such
Lender's Loans plus (without duplication) the participation of such
Lender in (or in the case of an Issuing Lender, the unparticipated
portion of) the Effective Amount of all L/C Obligations constitutes of
(ii) the aggregate principal amount of all Loans plus (without
duplication) the Effective Amount of all L/C Obligations).
Reportable Event means, any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
Required Lenders means Lenders holding Pro Rata Shares
aggregating at least 67%; provided that if and so long as any Lender
fails to fund any Loan when required by Section 3.3 or a participation
in an L/C Borrowing pursuant to
19
26
Section 3.3, as the case may be, such Lender's Pro Rata Share shall be
deemed for purposes of this definition to be reduced by the percentage
which the defaulted amount constitutes of the combined Commitments (or,
if the Commitments have terminated, the Total Outstandings), and the
Pro Rata Share of the applicable Issuing Lender shall be deemed for
purposes of this definition to be increased by such percentage.
Requirement of Law means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a Governmental Authority, in each case applicable to
or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
Responsible Officer means the chief executive officer, the
president or any vice president of the Company, or any other officer
having substantially the same authority and responsibility; or, with
respect to financial matters, the chief financial officer or the
treasurer of the Company, or any other officer having substantially the
same authority and responsibility.
Restricted Subsidiary is defined in Section 8.4.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
Securitization Transaction means any sale, assignment or other
transfer by the Company or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to the Company or any
Subsidiary or any interest in any of the foregoing, together in each
case with any collections and other proceeds thereof, any collection or
deposit accounts related thereto, and any collateral, guaranties or
other property or claims in favor of the Company or such Subsidiary
supporting or securing payment by the obligor thereon of, or otherwise
related to, any such receivables.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by
20
27
such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
Surety Instruments means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
Swap Contract means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or xxxx option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Administrative Agent, franchise taxes and
taxes imposed on or measured by its net income by the jurisdiction (or
any political subdivision thereof) under the laws of which such Lender
or the Administrative Agent, as the case may be, is organized or
maintains a lending office.
Termination Date means the earlier to occur of:
(a) the fifth anniversary of the Effective Date; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
Total Debt to EBITDA Ratio means, for any Computation Period,
the ratio of (a) Total Indebtedness as of the last day of such
Computation Period, to (b) EBITDA for such Computation Period.
21
28
Total Indebtedness means, at any time, all Indebtedness of
the Company and its Subsidiaries determined on a consolidated basis and
to the extent not included in the definition of Indebtedness, the
aggregate outstanding investment or claim held at such time by
purchasers, assignees or other transferees of (or of interests in)
receivables or other rights to payment of the Company and its
Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
Total Outstandings means the sum of the aggregate principal
amount of all outstanding Loans plus the Effective Amount of all L/C
Obligations.
Type has the meaning specified in the definition of "Loan."
UCP - see Section 3.9.
Unfunded Pension Liability means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of such Plan's assets, determined in accordance with the
assumptions used for funding such Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
United States and U.S. each means the United States of
America.
Unmatured Event of Default means any event or circumstance
which, with the giving of notice, the lapse of time or both, will (if
not cured, waived or otherwise remedied during such time) constitute an
Event of Default.
Van Every Family means (i) a lineal descendant of Salem A. Van
Every, Sr. including adopted persons as well as persons related by
blood, (ii) a spouse, widow or widower of an individual described in
clause (i) above or (iii) a trust, estate, custodian and other
fiduciary or similar account for the benefit of an individual described
in either clause (i) or clause (ii) above.
Wholly-Owned Subsidiary means any corporation in which (other
than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100% of the
capital stock of every other
22
29
class, in each case, at the time as of which any determination is being
made, is owned, beneficially and of record, by the Company, or by one
or more of the other Wholly-Owned Subsidiaries, or both.
Year 2000 Problem - see Section 5.1(g).
1.2 Other Interpretive Provisions.
The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
The words "hereof", "herein", "hereunder" and similar words refer to
this Agreement as a whole and not to any particular provision of this Agreement;
and subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation.
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding",
and the word "through" means "to and including."
Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the
23
30
same or similar matters. All such limitations, tests and measurements are
cumulative and shall each be performed in accordance with their terms. Unless
otherwise expressly provided herein, any reference to any action of the
Administrative Agent, the Lenders or the Required Lenders by way of consent,
approval or waiver shall be deemed modified by the phrase "in its/their sole
discretion."
This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Lenders'
involvement in their preparation.
1.3 Accounting Principles.
Unless the context otherwise clearly requires, all accounting terms not
expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied; provided that if the Company notifies the Administrative
Agent that the Company wishes to amend any covenant in Article VIII to eliminate
the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Lenders wish to
amend Article VIII for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
References herein to "fiscal year" and "fiscal quarter" refer to such
fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments. Each Lender severally agrees, on
the terms and conditions set forth herein, to make Loans to the Company from
time to time on any Business Day during the period from the Effective Date to
the Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on Schedule 2.1 (such amount,
24
31
as reduced pursuant to Section 2.5 or changed by one or more assignments under
Section 11.8, such Lender's "Commitment"); provided, however, that, after giving
effect to any Borrowing, the Total Outstandings shall not exceed the combined
Commitments; and provided, further, that the aggregate principal amount of the
Loans of any Lender plus the participation of such Lender in the Effective
Amount of all L/C Obligations shall not at any time exceed such Lender's
Commitment. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this Section
2.1, prepay under Section 2.6 and reborrow under this Section 2.1.
2.2 Loan Accounts. The Loans made by each Lender and the Letters of
Credit Issued by each Issuing Lender shall be evidenced by one or more accounts
or records maintained by such Lender or Issuing Lender, as the case may be, in
the ordinary course of business. The accounts or records maintained by the
Administrative Agent, each Issuing Lender and each Lender shall be rebuttable
presumptive evidence of the amount of the Loans made by the Lenders to the
Company and the Letters of Credit Issued for the account of the Company, and the
interest and payments thereon. Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans or any Letter of
Credit.
Upon the request of any Lender made through the Administrative Agent,
the Loans made by such Lender may be evidenced by a Note, instead of or in
addition to loan accounts. Each such Lender shall endorse on the schedules
annexed to its Note the date, amount and maturity of each Loan evidenced thereby
and the amount of each payment of principal made by the Company with respect
thereto (or such Lender shall maintain such information in its own records).
Each such Lender is irrevocably authorized by the Company to endorse its Note
and each Lender's record shall be rebuttable presumptive evidence of the amount
of the Loans evidenced thereby, and the interest and payments thereon; provided,
however, that the failure of a Lender to make, or an error in making, a notation
thereon or an entry therein with respect to any Loan shall not limit or
otherwise affect the obligations of the Company hereunder or under any such Note
to such Lender.
2.3 Procedure for Borrowing. Each Borrowing shall be made upon the
Company's irrevocable written notice delivered to the Administrative Agent in
the form of a Notice of Borrowing, which
25
32
notice must be received by the Administrative Agent prior to (i) 11:00 a.m.
Charlotte time two Business Days prior to the requested Borrowing Date, in the
case of Offshore Rate Loans, and (ii) 11:00 a.m. Charlotte time on the requested
Borrowing Date, in the case of Base Rate Loans, specifying:
(a) the amount of the Borrowing, which shall be in an
aggregate amount of $1,000,000 or a higher multiple of $500,000;
(b) the requested Borrowing Date, which shall be a Business
Day;
(c) the Type of Loans comprising such Borrowing; and
(d) in the case of Offshore Rate Loans, the duration of the
initial Interest Period applicable to such Loans.
The Administrative Agent will promptly notify each Lender of its
receipt of any Notice of Borrowing and of the amount of such Lender's Pro Rata
Share of such Borrowing.
Each Lender will make the amount of its Pro Rata Share of each
Borrowing available to the Administrative Agent for the account of the Company
at the Administrative Agent's Payment Office by 1:00 p.m. Charlotte time on the
Borrowing Date requested by the Company in funds immediately available to the
Administrative Agent. The proceeds of all such Loans will then be made available
to the Company by the Administrative Agent by wire transfer in accordance with
written instructions provided to the Administrative Agent by the Company of like
funds as received by the Administrative Agent.
After giving effect to any Borrowing, unless the Administrative Agent
otherwise consents, there may not be more than six different Interest Periods in
effect for all Borrowings.
2.4 Conversion and Continuation Elections for Borrowings. The Company
may, upon irrevocable written notice to the Administrative Agent in accordance
with subsection 2.4(b):
(a) elect, as of any Business Day, in the case of Base Rate
Loans, or as of the last day of the applicable Interest Period, in the
case of Offshore Rate Loans, to convert such Loans (or any part thereof
in an aggregate
26
33
amount of $1,000,000 or a higher integral multiple of $500,000) into
Loans of the other Type; or
(b) elect, as of the last day of the applicable Interest
Period, to continue any Offshore Rate Loans having Interest Periods
expiring on such day (or any part thereof in an aggregate amount of
$1,000,000 or a higher integral multiple of $500,000) for another
Interest Period;
provided that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
any part thereof, to be less than $1,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans.
The Company shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than 11:00 a.m. Charlotte time at
least (i) two Business Days in advance of the Conversion/Continuation Date, if
the Loans are to be converted into or continued as Offshore Rate Loans; and (ii)
on the Conversion/Continuation Date, if the Loans are to be converted into Base
Rate Loans, specifying:
(a) the proposed Conversion/Continuation Date;
(b) the aggregate amount of Loans to be converted or
continued;
(c) the Type of Loans resulting from the proposed conversion
or continuation; and
(d) in the case of conversion into or continuation of Offshore
Rate Loans, the duration of the requested Interest Period.
If upon the expiration of any Interest Period applicable to Offshore
Rate Loans, the Company has failed to select timely a new Interest Period to be
applicable to such Offshore Rate Loans, the Company shall be deemed to have
elected to convert such Offshore Rate Loans into Base Rate Loans effective as of
the expiration date of such Interest Period.
The Administrative Agent will promptly notify each Lender of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Administrative Agent will promptly notify each
Lender of the details of any automatic conversion. All conversions and
continuations shall
27
34
be made ratably among the Lenders according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given.
Unless the Required Lenders otherwise consent, the Company may not
elect to have a Loan converted into or continued as an Offshore Rate Loan during
the existence of an Event of Default or Unmatured Event of Default.
After giving effect to any conversion or continuation of Loans, unless
the Administrative Agent shall otherwise consent, there may not be more than six
different Interest Periods in effect for all Borrowings.
2.5 Voluntary Termination or Reduction of Commitments. The Company may,
upon not less than five Business Days' prior notice to the Administrative Agent,
terminate the Commitments, or permanently reduce the Commitments by a minimum
amount of $1,000,000 or a higher integral multiple of $500,000; unless, after
giving effect thereto and to any prepayments of Loans made on the effective date
thereof, the Total Outstandings would exceed the amount of the combined
Commitments then in effect. Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the Commitments shall be
applied to reduce the Commitment of each Lender according to its Pro Rata Share.
If the Company terminates the Commitments or reduces the Commitments to zero,
the Company shall pay all accrued and unpaid interest, fees and other amounts
payable hereunder on the date of such termination.
2.6 Optional Prepayments. Subject to the proviso to subsection 2.4(a)
and to Section 4.4, the Company may, from time to time, upon irrevocable notice
to the Administrative Agent, which notice must be received by the Administrative
Agent prior to 11:00 a.m. Charlotte time (i) two Business Days prior to the date
of prepayment, in the case of Offshore Rate Loans, and (ii) on the date of
prepayment, in the case of Base Rate Loans, ratably prepay Loans in whole or in
part, in an aggregate amount of $1,000,000 or a higher integral multiple of
$500,000 (or, if any Base Rate Loans have been made pursuant to subsection
3.3(d), in an aggregate amount equal to the aggregate amount of such Base Rate
Loans). Such notice of prepayment shall specify the date and amount of such
prepayment and the Loans to be prepaid. The Administrative Agent will promptly
notify each Lender of its receipt of any such notice and of such Lender's Pro
Rata Share of such prepayment. If such notice is given by the Company, the
Company shall make such prepayment and the
28
35
payment amount specified in such notice shall be due and payable on the date
specified therein, together with, in the case of Offshore Rate Loans, accrued
interest to such date on the amount prepaid and any amounts required pursuant to
Section 4.4.
2.7 Repayment. The Company shall repay all Loans on the Termination
Date.
2.8 Interest. Each Loan shall bear interest on the outstanding
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to (i) the Offshore Rate plus the Applicable Margin or (ii) the Base Rate,
as the case may be (and subject to the Company's right to convert to the other
Type of Loan under Section 2.4).
Interest on each Loan shall be paid in arrears on each Interest Payment
Date. Interest also shall be paid on the date of any conversion of Offshore Rate
Loans under Section 2.4 and prepayment of Offshore Rate Loans under Section 2.6,
in each case for the portion of the Loans so converted or prepaid.
Notwithstanding the foregoing provisions of this Section, upon notice
to the Company from the Agent (acting at the request or with the consent of the
Required Lenders) during the existence of any Event of Default, and for so long
as such Event of Default continues, the Company shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Loans and, to the extent permitted by
applicable law, on any other amount payable hereunder or under any other Loan
Document, at a rate per annum which is determined by adding 2% per annum to the
rate otherwise applicable thereto pursuant to the terms hereof or such other
Loan Document (or, if no such rate is specified, the Base Rate).
All such interest shall be payable on demand.
Anything herein to the contrary notwithstanding, the obligations of the
Company to any Lender hereunder shall be subject to the limitation that payments
of interest shall not be required for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by such Lender would be contrary to the provisions of any
law applicable to such Lender limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Lender, and in such event
the Company shall pay such Lender interest at the highest rate permitted by
applicable law.
29
36
2.9 Fees. In addition to certain fees described in Section 3.8:
(a) Arrangement, Agency Fees. The Company agrees to pay to the
Administrative Agent and the Arranger such fees at such times and in such
amounts as are set forth in the fee letter dated March 24, 1999 to the Company
from NationsBank and the Arranger, as it may be amended or replaced from time to
time (the "Fee Letter").
(b) Upfront Fees. The Company shall pay to the Administrative Agent for
the account of each Lender an upfront fee equal to 0.15% of such Lender's
Commitment (which amount is in full payment of the participation fee referenced
in the Fee Letter), such upfront fee to be due and payable on the Effective
Date.
(c) Facility Fees. The Company shall pay to the Administrative Agent
for the account of each Lender a facility fee computed at the Facility Fee Rate
per annum on the amount of such Lender's Commitment as in effect from time to
time (whether used or unused) or, if the Commitments have terminated, on the sum
(without duplication) of (i) the principal amount of such Lender's Loans plus
(ii) the participation of such Lender in (or in the case of an Issuing Lender,
its unparticipated portion of) the Effective Amount of all L/C Obligations. Such
facility fee shall accrue from the Effective Date to the Termination Date, and
thereafter until all Loans are paid in full, and shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter, with the
final payment to be made on the Termination Date (or, if later, on the date all
Loans are paid in full).
2.10 Computation of Fees and Interest. All computations of interest for
Base Rate Loans when the Base Rate is determined by NationsBank's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of interest and fees shall be made
on the basis of a 360-day year and actual days elapsed. Interest and fees shall
accrue during each period during which such interest or such fees are computed
from the first day thereof to the last day thereof.
Each determination of an interest rate by the Administrative Agent
shall be conclusive and binding on the Company and the Lenders in the absence of
manifest error. The Administrative Agent will, at the request of the Company or
any
30
37
Lender, deliver to the Company or such Lender, as the case may be, a statement
showing the quotations used by the Administrative Agent in determining any
interest rate and the resulting interest rate.
2.11 Payments by the Company. All payments to be made by the Company
shall be made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by the Company shall be made to the
Administrative Agent for the account of the Lenders at the Administrative
Agent's Payment Office, and shall be made in Dollars and in immediately
available funds, no later than 2:00 p.m. Charlotte time on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its Pro
Rata Share (or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Administrative
Agent later than 2:00 p.m. Charlotte time shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall continue
to accrue.
Whenever any payment is due on a day other than a Business Day, such
payment shall be made on the following Business Day (unless, in the case of a
payment with respect to an Offshore Rate Loan, the following Business Day is in
another calendar month, in which case such payment shall be made on the
preceding Business Day), and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be.
Unless the Administrative Agent receives notice from the Company prior
to the date on which any payment is due to the Lenders that the Company will not
make such payment in full as and when required, the Administrative Agent may
assume that the Company has made such payment in full to the Administrative
Agent on such date in immediately available funds and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, distribute
to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent the Company has not made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent on
demand such amount distributed to such Lender, together with interest thereon at
the Federal Funds Rate for each day from the date such amount is distributed to
such Lender until the date repaid.
2.12 Payments by the Lenders to the Administrative Agent. Unless the
Administrative Agent receives notice from a Lender at
31
38
least one Business Day prior to the date of a Borrowing of Offshore Rate Loans
or by 12:00 noon Charlotte time on the day of any Borrowing of Base Rate Loans,
that such Lender will not make available as and when required hereunder to the
Administrative Agent for the account of the Company the amount of such Lender's
Pro Rata Share of such Borrowing, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent in immediately
available funds on the Borrowing Date and the Administrative Agent may (but
shall not be so required), in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If and to the extent any Lender
shall not have made its full amount available to the Administrative Agent in
immediately available funds and the Administrative Agent in such circumstances
has made available to the Company such amount, such Lender shall on the Business
Day following such Borrowing Date make such amount available to the
Administrative Agent, together with interest at the Federal Funds Rate. A notice
of the Administrative Agent submitted to any Lender with respect to amounts
owing under this subsection (a) shall be conclusive, absent manifest error. If
such amount is so made available, such payment to the Administrative Agent shall
constitute such Lender's Loan on the date of Borrowing for all purposes of this
Agreement. If such amount is not made available to the Administrative Agent on
the Business Day following the Borrowing Date, the Administrative Agent will
notify the Company of such failure to fund and, upon demand by the
Administrative Agent, the Company shall pay such amount to the Administrative
Agent for the Administrative Agent's account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such Borrowing.
The failure of any Lender to make any Loan on any Borrowing Date shall
not relieve any other Lender of any obligation hereunder to make a Loan on such
Borrowing Date, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on any Borrowing Date.
2.13 Sharing of Payments. If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan (other than pursuant to the terms of Sections
4.1, 4.3 and 4.4) in excess of its pro rata share of payments then or therewith
obtained by all Lenders, such Lender shall purchase from the other Lenders such
participations in Loans made by them as shall
32
39
be necessary to cause such purchasing Lender to share the excess payment or
other recovery ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each Lender which
has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Lender's ratable share (according to the
proportion of
(a) the amount of such selling Lender's required repayment to
the purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Company agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 11.10) with respect to such participation as
fully as if such Lender were the direct creditor of the Company in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender 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 to share in the benefits of any
recovery on such secured claim.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. On the terms and conditions set
forth herein (i) each Issuing Lender agrees, (A) from time to time on any
Business Day during the period from the Effective Date to the Termination Date
to issue Letters of Credit for the account of the Company, and to amend or renew
Letters of Credit previously issued by it, in accordance with subsections 3.2(c)
and 3.2(d), and (B) to honor properly drawn drafts under the Letters of Credit
issued by it; and (ii) the Lenders severally agree to participate in Letters of
Credit
33
40
Issued for the account of the Company; provided that no Issuing Lender shall be
obligated to Issue, and no Lender shall be obligated to participate in, any
Letter of Credit if as of the date of Issuance of such Letter of Credit (the
"Issuance Date") (1) the Total Outstandings exceed the combined Commitments, (2)
the Effective Amount of all L/C Obligations would exceed the L/C Commitment or
(3) the participation of any Lender in the Effective Amount of all L/C
Obligations plus the outstanding principal amount of the Loans of such Lender
would exceed such Lender's Commitment. Within the foregoing limits, and subject
to the other terms and conditions hereof, the Company's ability to obtain
Letters of Credit shall be fully revolving, and, accordingly, the Company may,
during the foregoing period, obtain Letters of Credit to replace Letters of
Credit which have expired or which have been drawn upon and reimbursed.
No Issuing Lender shall be under any obligation to Issue any Letter of
Credit if:
(a) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Lender from Issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Lender shall
prohibit, or request that such Issuing Lender refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to
such Letter of Credit any restriction, reserve or capital requirement
(for which such Issuing Lender is not otherwise compensated hereunder)
not in effect on the Effective Date, or shall impose upon such Issuing
Lender any unreimbursed loss, cost or expense which was not applicable
on the Effective Date and which such Issuing Lender in good xxxxx xxxxx
material to it (it being understood that the applicable Issuing Lender
shall promptly notify the Company and the Administrative Agent of any
of the foregoing events or circumstances);
(b) such Issuing Lender has received written notice from any
Lender, the Administrative Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in
Article V is not then satisfied;
34
41
(c) the expiry date of such requested Letter of Credit is
after the Termination Date, unless all of the Lenders have approved
such expiry date in writing;
(d) such Letter of Credit does not provide for drafts, or is
not otherwise in form and substance acceptable to such Issuing Lender,
or the Issuance of a Letter of Credit shall violate any applicable
policies of such Issuing Lender; or
(e) such Letter of Credit is denominated in a currency other
than Dollars.
3.2 Issuance, Amendment and Renewal of Letters of Credit. Each Letter
of Credit shall be issued upon the irrevocable written request of the Company
received by the applicable Issuing Lender (with a copy sent by the Company to
the Administrative Agent) at least one Business Day (or such shorter time as the
applicable Issuing Lender and the Administrative Agent may agree in a particular
instance in their sole discretion) prior to the proposed date of issuance. Each
such request for issuance of a Letter of Credit shall be by facsimile, confirmed
immediately (by messenger or overnight courier) in an original writing, in the
form of an L/C Application, and shall specify in form and detail satisfactory to
the applicable Issuing Lender: (i) the face amount of the Letter of Credit; (ii)
the expiry date of the Letter of Credit; (iii) the name and address of the
beneficiary thereof, (iv) the documents to be presented by the beneficiary of
the Letter of Credit in case of any drawing thereunder; (v) the full text of any
certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vi) such other matters as such Issuing Lender may require.
Promptly upon receipt of any L/C Application or L/C Amendment
Application, the applicable Issuing Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such L/C Application or L/C Amendment Application from the Company and,
if not, such Issuing Lender will provide the Administrative Agent with a copy
thereof. Unless the applicable Issuing Lender has received on or before the
Business Day immediately preceding the date such Issuing Lender is to issue a
requested Letter of Credit, (A) notice from the Administrative Agent directing
such Issuing Lender not to issue such Letter of Credit because such issuance is
not then permitted under subsection 3.1(a) as a result of the limitations set
forth in
35
42
clauses (1) through (3) thereof or (B) a notice described in subsection
3.1(b)(ii), then, subject to the terms and conditions hereof, such Issuing
Lender shall, on the requested date, issue a Letter of Credit for the account of
the Company in accordance with such Issuing Lender's usual and customary
business practices.
From time to time while a Letter of Credit is outstanding and prior to
the Termination Date, the applicable Issuing Lender will, upon the written
request of the Company received by such Issuing Lender (with a copy sent by the
Company to the Administrative Agent) at least one Business Day (or such shorter
time as the applicable Issuing Lender and the Administrative Agent may agree in
a particular instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile, confirmed
immediately (by messenger or overnight courier) in an original writing, made in
the form of an L/C Amendment Application and shall specify in form and detail
satisfactory to such Issuing Lender: (i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of such Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such other
matters as such Issuing Lender may require. No Issuing Lender shall have any
obligation to amend any Letter of Credit if: (A) such Issuing Lender would have
no obligation at such time to issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit. The
Administrative Agent will promptly notify the Lenders of any Issuance or
amendment of a Letter of Credit.
The Issuing Lenders and the Lenders agree that, while a Letter of
Credit is outstanding and prior to the Termination Date, at the option of the
Company and upon the written request of the Company received by the applicable
Issuing Lender (with a copy sent by the Company to the Administrative Agent) at
least one Business Day (or such shorter time as the applicable Issuing Lender
and the Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of notification of renewal, the
applicable Issuing Lender shall be entitled to authorize the automatic renewal
of any Letter of Credit issued by it. Each such request for renewal of a Letter
of Credit shall be made by facsimile, confirmed immediately in an original
writing, in the form of an L/C Amendment Application, and shall specify in form
and detail satisfactory
36
43
to the applicable Issuing Lender: (i) the Letter of Credit to be renewed; (ii)
the proposed date of notification of renewal of such Letter of Credit (which
shall be a Business Day); (iii) the revised expiry date of such Letter of Credit
(which, unless all Lenders otherwise consent in writing, shall be prior to the
Termination Date); and (iv) such other matters as such Issuing Lender may
require. No Issuing Lender shall be under any obligation to renew any Letter of
Credit if: A) such Issuing Lender would have no obligation at such time to issue
or amend such Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of such Letter of Credit does not accept the
proposed renewal of such Letter of Credit. If any outstanding Letter of Credit
shall provide that it shall be automatically renewed unless the beneficiary
thereof receives notice from the applicable Issuing Lender that such Letter of
Credit shall not be renewed, and if at the time of renewal such Issuing Lender
would be entitled to authorize the automatic renewal of such Letter of Credit in
accordance with this subsection 3.2(d) upon the request of the Company but such
Issuing Lender shall not have received any L/C Amendment Application from the
Company with respect to such renewal or other written direction by the Company
with respect thereto, such Issuing Lender shall nonetheless be permitted to
allow such Letter of Credit to renew, and the Company and the Lenders hereby
authorize such renewal, and, accordingly, such Issuing Lender shall be deemed to
have received an L/C Amendment Application from the Company requesting such
renewal.
Each Issuing Lender may, at its election (or as required by the
Administrative Agent at the direction of the Required Lenders), deliver any
notice of termination or other communication to any Letter of Credit beneficiary
or transferee, and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Termination Date.
This Agreement shall control in the event of any conflict with any
L/C-Related Document (other than any Letter of Credit).
Each Issuing Lender will deliver to the Administrative Agent and the
Company, concurrently or promptly following its delivery of a Letter of Credit,
or amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of such Letter of Credit or of such
amendment or renewal.
37
44
3.3 Risk Participations, Drawings and Reimbursements.
Immediately upon the Issuance of each Letter of Credit on or after the
Effective Date, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the applicable Issuing Lender a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to the product of (i) such Lender's Pro Rata Share times (ii) the maximum
amount available to be drawn under such Letter of Credit and the amount of such
drawing, respectively. For purposes of Section 2.1, each Issuance of a Letter of
Credit shall be deemed to utilize the Commitment of each Lender by an amount
equal to the amount of such participation.
In the event of any request for a drawing under a Letter of Credit by
the beneficiary or transferee thereof, the applicable Issuing Lender will
promptly notify the Company and the Administrative Agent. The Company shall
(subject, if applicable, to its right to obtain Base Rate Loans as provided
below) reimburse the applicable Issuing Lender prior to 11:00 a.m. Charlotte
time on each date that any amount is paid by such Issuing Lender under any
Letter of Credit (each such date, an "Honor Date") in an amount equal to the
amount so paid by such Issuing Lender; provided that, to the extent that any
Issuing Lender accepts a drawing under a Letter of Credit after 11:00 a.m.
Charlotte time, the Company will not be obligated to reimburse such Issuing
Lender until the next Business Day and the "Honor Date" for such Letter of
Credit shall be such next Business Day. If the Company fails to reimburse an
Issuing Lender for the full amount of any drawing under any Letter of Credit by
11:00 a.m. Charlotte time on the Honor Date, such Issuing Lender will promptly
notify the Administrative Agent and the Administrative Agent will promptly
notify each Lender thereof (no later than 12:00 noon Charlotte time on such
Honor Date), and the Company shall be deemed to have requested that Base Rate
Loans be made by the Lenders to be disbursed on the Honor Date under such Letter
of Credit, subject to the amount of the unutilized portion of the combined
Commitments and subject to the conditions set forth in Section 5.2 other than
Section 5.2(a). Any notice given by an Issuing Lender or the Administrative
Agent pursuant to this subsection 3.3(b) may be oral if immediately confirmed in
writing (including by facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
38
45
Each Lender shall upon any notice pursuant to subsection 3.3(b) make
available to the Administrative Agent for the account of the applicable Issuing
Lender an amount in Dollars and in immediately available funds equal to its Pro
Rata Share of the amount of the drawing, whereupon the Lenders shall (subject to
subsection 3.3(d)) each be deemed to have made a Loan consisting of a Base Rate
Loan to the Company in such amount. If any Lender so notified fails to make
available to the Administrative Agent for the account of the applicable Issuing
Lender the amount of such Lender's Pro Rata Share of the amount of such drawing
by no later than 2:00 p.m. Charlotte time on the Honor Date, then interest shall
accrue on such Lender's obligation to make such payment, from the Honor Date to
the date such Lender makes such payment, at a rate per annum equal to the
Federal Funds Rate in effect from time to time during such period. The
Administrative Agent will promptly give notice of the occurrence of the Honor
Date, but failure of the Administrative Agent to give any such notice on the
Honor Date or in sufficient time to enable any Lender to effect such payment on
such date shall not relieve such Lender from its obligations under this Section
3.3.
With respect to any unreimbursed drawing that is not converted into
Base Rate Loans in whole or in part, because of the Company's failure to satisfy
the conditions set forth in Section 5.2 (other than subsection 5.2(a) which need
not be satisfied) or for any other reason, the Company shall be deemed to have
incurred from the applicable Issuing Lender an L/C Borrowing in the amount of
such drawing, which L/C Borrowing shall be due and payable on demand and shall
bear interest (payable on demand) at a rate per annum equal to the Base Rate
plus 2%, and each Lender's payment to such Issuing Lender pursuant to subsection
3.3(c) shall be deemed payment in respect of its participation in such L/C
Borrowing and shall constitute an L/C Advance from such Lender in satisfaction
of its participation obligation under this Section 3.3.
Each Lender's obligation in accordance with this Agreement to make the
Loans or L/C Advances, as contemplated by this Section 3.3, as a result of a
drawing under a Letter of Credit, shall be absolute and unconditional and
without recourse to any Issuing Lender and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the applicable Issuing Lender,
the Company or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of an Event of Default, an Unmatured Event of Default or a
Material Adverse
39
46
Effect; or (iii) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing; provided that each Lender's obligation
to make Loans under this Section 3.3 is subject to the conditions set forth in
Section 5.2 (other than subsection 5.2(a)).
3.4 Repayment of Participations. Upon (and only upon) receipt by the
Administrative Agent for the account of an Issuing Lender of immediately
available funds from the Company (i) in reimbursement of any payment made by
such Issuing Lender under a Letter of Credit with respect to which any Lender
has paid the Administrative Agent for the account of such Issuing Lender for
such Lender's participation in such Letter of Credit pursuant to Section 3.3 or
(ii) in payment of interest thereon, the Administrative Agent will pay to each
Lender, in the same funds as those received by the Administrative Agent for the
account of such Issuing Lender, the amount of such Lender's Pro Rata Share of
such funds, and such Issuing Lender shall receive the amount of the Pro Rata
Share of such funds of any Lender that did not so pay the Administrative Agent
for the account of such Issuing Lender.
If the Administrative Agent or an Issuing Lender is required at any
time to return to the Company, or to a trustee, receiver, liquidator or
custodian, or to any official in any Insolvency Proceeding, any portion of any
payment made by the Company to the Administrative Agent for the account of an
Issuing Lender pursuant to subsection 3.4(a) in reimbursement of a payment made
under a Letter of Credit or interest or fee thereon, each Lender shall, on
demand of the Administrative Agent, forthwith return to the Administrative Agent
or the applicable Issuing Lender the amount of its Pro Rata Share of any amount
so returned by the Administrative Agent or such Issuing Lender plus interest
thereon from the date such demand is made to the date such amount is returned by
such Lender to the Administrative Agent or such Issuing Lender, at a rate per
annum equal to the Federal Funds Rate in effect from time to time.
3.5 Role of the Issuing Lenders. Each Lender and the Company agree
that, in paying any drawing under a Letter of Credit, the applicable Issuing
Lender shall not have any responsibility to obtain any document (other than any
sight draft and certificate expressly required by such Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.
40
47
No Issuing Lender or Administrative Agent-Related Person, nor any of
their respective correspondents, participants or assignees, shall be liable to
any Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
The Company hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the
Company's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. No Issuing Lender
or Administrative Agent-Related Person, nor any of their respective
correspondents, participants or assignees, shall be liable or responsible for
any of the matters described in clauses (i) through (vii) of Section 3.6,
provided that, anything in such clauses to the contrary notwithstanding, the
Company may have a claim against an Issuing Lender, and such Issuing Lender may
be liable to the Company, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Company which
the Company proves were caused by such Issuing Lender's willful misconduct or
gross negligence or such Issuing Lender's willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of
such Letter of Credit. In furtherance and not in limitation of the foregoing:
(i) an Issuing Lender may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) no Issuing Lender shall be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the applicable Issuing
Lender for a drawing under a Letter of Credit, and to repay any L/C Borrowing
and any drawing under a Letter of Credit converted into Loans, shall be
unconditional
41
48
and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(a) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the L/C-Related Documents;
(c) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the applicable
Issuing Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by any L/C-Related
Document or any unrelated transaction;
(d) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any
Letter of Credit;
(e) any payment by an Issuing Lender under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by an Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(f) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any other guarantee, for all or any of the obligations of the Company
in respect of any Letter of Credit; or
42
49
(g) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, the Company or a guarantor.
3.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Termination Date, then the Company
shall immediately Cash Collateralize the L/C Obligations in an amount equal to
the maximum amount then available to be drawn under all Letters of Credit.
3.8 Letter of Credit Fees. The Company shall pay to the Administrative
Agent for the account of each Lender a letter of credit fee with respect to each
Letter of Credit equal to the L/C Fee Rate per annum of the average daily
maximum amount available to be drawn on such Letter of Credit, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter and
on the Termination Date (or such later date on which such Letter of Credit shall
expire or be fully drawn).
The letter of credit fees payable under subsection 3.8(a) shall be due
and payable quarterly in arrears on the last Business Day of each calendar
quarter during which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Closing Date, through the Termination
Date (or such later date upon which all outstanding Letters of Credit shall
expire or be fully drawn), with the final payment to be made on the Termination
Date (or such later date).
The Company shall pay to each Issuing Lender a letter of credit
fronting fee at such times and in such amounts as are mutually agreed to from
time to time by the Company and such Issuing Lender.
The Company shall pay to each Issuing Lender from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of such Issuing Lender relating to letters
of credit as from time to time in effect.
3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise
43
50
expressly provided in such Letter of Credit) apply to such Letter of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. Any and all payments by the Company to each Lender or the
Administrative Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for, any Taxes. In
addition, the Company shall pay all Other Taxes and Further Taxes.
If the Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, then:
(a) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lender or the Administrative Agent, as the case may
be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(b) the Company shall make such deductions and withholdings;
and
(c) the Company shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
applicable law.
The Company agrees to indemnify and hold harmless each Lender and the
Administrative Agent for the full amount of Taxes, Other Taxes and Further Taxes
in the amount that such Lender specifies as necessary to preserve the after-tax
yield such Lender would have received if such Taxes, Other Taxes or Further
Taxes had not been imposed, and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes, Other Taxes or Further Taxes were correctly or
legally asserted. Payment under this indemnification shall be made within 30
days after the date such Lender or the Administrative Agent makes written demand
therefor.
44
51
Within 30 days after the date of any payment by the Company of any
Taxes, Other Taxes or Further Taxes, the Company shall furnish each applicable
Lender and the Administrative Agent the original or a certified copy of a
receipt evidencing payment thereof, or other evidence of payment satisfactory to
such Lender and the Administrative Agent.
If the Company is required to pay any amount to any Lender or the
Administrative Agent pursuant to subsection (b) or (c) of this Section, then
such Lender shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Company which may thereafter
accrue, if such change in the sole judgment of such Lender is not otherwise
disadvantageous to such Lender.
Notwithstanding the foregoing provisions of this Section 4.1, if any
Lender fails to notify the Company of any event or circumstance which will
entitle such Lender to compensation pursuant to this Section 4.1 within 120 days
after such Lender obtains knowledge of such event or circumstance, then such
Lender shall not be entitled to compensation from the Company for any amount
arising prior to the date which is 120 days before the date on which such Lender
notifies the Company of such event or circumstance.
4.2 Illegality. If any Lender determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for such Lender or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by such Lender to the Company
through the Administrative Agent, any obligation of such Lender to make Offshore
Rate Loans shall be suspended until such Lender notifies the Administrative
Agent and the Company that the circumstances giving rise to such determination
no longer exist.
If a Lender determines that it is unlawful to maintain any Offshore
Rate Loan, the Company shall, upon its receipt of notice of such fact and demand
from such Lender (with a copy to the Administrative Agent), prepay in full such
Offshore Rate Loan of such Lender the outstanding, together with interest
accrued thereon and amounts required under Section 4.4, either on the last day
of the Interest Period thereof, if such Lender may lawfully continue to maintain
such Offshore Rate Loan to
45
52
such day, or immediately, if such Lender may not lawfully continue to maintain
such Offshore Rate Loan. If the Company is required to so prepay any Offshore
Rate Loan, then concurrently with such prepayment, the Company shall borrow from
the affected Lender, in the amount of such repayment, a Base Rate Loan.
If the obligation of any Lender to make or maintain Offshore Rate Loans
has been so terminated or suspended, all Loans which would otherwise be made by
such Lender as Offshore Rate Loans shall be instead Base Rate Loans.
Before giving any notice to the Administrative Agent under this
Section, the affected Lender shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of such
Lender, be illegal or otherwise disadvantageous to such Lender.
4.3 Increased Costs and Reduction of Return. If any Lender determines
that, due to either (i) the introduction of or any change (other than any change
by way of imposition of or increase in reserve requirements included in the
calculation of the Offshore Rate) in or in the interpretation of any law or
regulation or (ii) compliance by such Lender with any guideline or request from
any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining any Offshore Rate Loan or
participating in any Letter of Credit, or, in the case of an Issuing Lender, any
increase in the cost to such Issuing Lender of agreeing to issue, issuing or
maintaining any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit, then the Company
shall be liable for, and shall from time to time, upon demand (with a copy of
such demand to be sent to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender, additional amounts as are sufficient to
compensate such Lender for such increased cost.
If any Lender shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by such Lender (or
its Lending Office) or any corporation controlling such Lender with any Capital
Adequacy
46
53
Regulation affects or would affect the amount of capital required or expected to
be maintained by such Lender or any corporation controlling such Lender and
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitment, Loans or obligations under this Agreement, then, upon demand of such
Lender to the Company through the Administrative Agent, the Company shall pay to
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender for such increase.
Notwithstanding the foregoing provisions of this Section 4.3, if any
Lender fails to notify the Company of any event or circumstance which will
entitle such Lender to compensation pursuant to this Section 4.3 within 60 days
after such Lender obtains knowledge of such event or circumstance, then such
Lender shall not be entitled to compensation from the Company for any amount
arising prior to the date which is 60 days before the date on which such Lender
notifies the Company of such event or circumstance.
4.4 Funding Losses. The Company shall reimburse each Lender and hold
each Lender harmless from any loss or expense which the Lender may sustain or
incur as a consequence of
(a) the failure of the Company to make on a timely basis any
payment of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert
a Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation for such
Loan;
(c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.6; or
(d) the prepayment (including after acceleration thereof) of
an Offshore Rate Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating
47
54
amounts payable by the Company to the Lenders under this Section and under
subsection 4.3(a), each Offshore Rate Loan made by a Lender (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the LIBOR used in determining the Offshore Rate for such
Offshore Rate Loan by a matching deposit or other borrowing in the interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If (a) the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or (b) the Required Lenders determine that the
Offshore Rate applicable pursuant to subsection 2.10(a) for any requested
Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Loan, the
Administrative Agent will promptly so notify the Company and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Offshore Rate
Loans hereunder shall be suspended until the Administrative Agent (upon the
instruction of the Required Lenders in the case of clause (b)) revokes such
notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the Lenders shall make, convert or
continue the Loans, as proposed by the Company, in the amount specified in the
applicable notice submitted by the Company, but such Loans shall be made,
converted or continued as Base Rate Loans instead of Offshore Rate Loans.
4.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the Company (with a copy to
the Administrative Agent) a certificate setting forth in reasonable detail the
amount payable to such Lender hereunder and the manner in which such amount has
been calculated, and such certificate shall be conclusive and binding on the
Company in the absence of manifest error.
4.7 Substitution of Lenders. Upon the receipt by the Company from any
Lender of a claim for compensation under Section 4.1 or 4.3 or a notice of the
type described in Section 4.2, the Company may: (i) designate a replacement bank
or financial institution satisfactory to the Company (a
48
55
"Replacement Lender") to acquire and assume all of such affected Lender's Loans
and Commitment; and/or (ii) request one or more of the other Lenders to acquire
and assume all of such affected Lender's Loans and Commitment. Any designation
of a Replacement Lender under clause (i) shall be subject to the prior written
consent of the Administrative Agent (which consent shall not be unreasonably
withheld).
4.8 Survival. The agreements and obligations of the Company in this
Article IV shall survive the termination of this Agreement and the payment of
all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. This Agreement shall become effective
on the date (the "Effective Date") occurring on or prior to April 30, 1999 on
which the Administrative Agent shall have received all of the following, in form
and substance satisfactory to the Administrative Agent and each Lender, and
(except for the Notes) in sufficient copies for each Lender:
(a) Agreement and Notes. This Agreement and the Notes executed
by each party hereto and thereto.
(b) Resolutions; Incumbency.
(1) Copies of the resolutions of the board of
directors of the Company authorizing the execution and
delivery of the Loan Documents to which such Person is a party
and the consummation of the transactions contemplated hereby,
certified as of the Effective Date by the Secretary or an
Assistant Secretary of such Person; and
(2) a certificate of the Secretary or Assistant
Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to
execute and deliver the Loan Documents, Notices of Borrowing,
Notices of Conversion/Continuation, Compliance Certificates,
L/C Applications, L/C Amendment Applications and other
documents in connection herewith.
(c) Organization Documents. The articles or certificate of
incorporation and the bylaws of the Company
49
56
as in effect on the Effective Date, certified by the Secretary or
Assistant Secretary of the Company as of the Effective Date.
(d) Legal Opinion. An opinion of Xxxxxxx Xxxxxxxxx Xxxxxxx &
Xxxxxxx, L.L.P., counsel to the Company, in form and substance
satisfactory to the Administrative Agent and the Lenders; and
(e) Payment of Fees. Evidence of payment by the Company of all
accrued and unpaid fees, costs and expenses to the extent then due and
payable hereunder on the Effective Date, together with Attorney Costs
of NationsBank to the extent invoiced prior to or on the Effective
Date.
(f) Certificate. A certificate signed by a Responsible
Officer, dated as of the Effective Date, stating that:
(i) the representations and warranties contained in
Article VI are true and correct on and as of such date, as
though made on and as of such date;
(ii) no Event of Default or Unmatured Event of
Default exists or would result from the effectiveness of this
Agreement; and
(iii) since December 26, 1998, no event or
circumstance has occurred that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(g) Year 2000. Information reasonably satisfactory to the
Administrative Agent and the Lenders confirming that (i) the Company
and its Subsidiaries are taking all reasonably necessary and
appropriate steps to ascertain the extent of, and to quantify and
successfully address, business and financial risks facing the Company
and its subsidiaries as a result of what is commonly referred to as the
"Year 2000 Problem" (i.e., the inability of certain computer
applications to recognize correctly and perform date-sensitive
functions involving certain dates prior to and after December 31,
1999), including risks resulting from the failure of key vendors and
customers of the Company to successfully address the Year 2000 Problem
and (ii) the Company's and its Subsidiaries' material computer
applications are reasonably expected to, on a timely basis,
50
57
adequately address the Year 2000 Problem, except to the extent failure
to do so could not reasonably be expected to have a Material Adverse
Effect.
(h) Other Documents. Such other approvals, opinions, documents
or materials as the Administrative Agent or any Lender may reasonably
request.
5.2 Conditions to All Credit Extensions. The obligation of each Lender
to make any Loan to be made by it and the obligation of any Issuing Lender to
Issue any Letter of Credit is subject to the satisfaction of the following
conditions precedent on the relevant Borrowing Date or Issuance Date:
(a) Notice, Application. The Administrative Agent shall have
received a Notice of Borrowing as required under Section 2.3 or, in the
case of the Issuance of any Letter of Credit, the applicable Issuing
Lender and the Administrative Agent shall have received an L/C
Application or L/C Amendment Application, as required under Section
3.2.
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct
in all material respects on and of such Borrowing Date or Issuance Date
with the same effect as if made on and as of such Borrowing Date or
Issuance Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date).
(c) No Existing Default. No Event of Default or Unmatured
Event of Default shall exist or shall result from such Borrowing or
Issuance.
Each Notice of Borrowing, notice of acceptance of an L/C Application and L/C
Amendment Application submitted by the Company hereunder shall constitute a
representation and warranty by the Company that, as of the date of each such
notice and as of the relevant Borrowing Date or Issuance Date, as applicable,
the conditions in this Section 5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
51
58
The Company represents and warrants to the Administrative Agent and
each Lender that:
6.1 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized and validly existing and,
if applicable in the jurisdiction of its incorporation, in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to
carry on its business and (ii) to execute, deliver and perform its
obligations under the Loan Documents to which it is a party;
(c) is duly qualified as a foreign corporation and is licensed
and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its
business requires such qualification or license; and
(d) is in compliance with all Requirements of Law;
except, in each case referred to in subclause (b)(i), clause (c) or clause (d),
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
6.2 Corporate Authorization; No Contravention. The execution, delivery
and performance by the Company of each Loan Document have been duly authorized
by all necessary corporate action, and do not and will not:
(a) contravene the terms of any of such Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any material
Contractual Obligation to which the Company or any of its Subsidiaries
is a party or any order, injunction, writ or decree of any Governmental
Authority to which the Company or any of its Subsidiaries or any of its
or their property is subject; or
(c) violate any Requirement of Law.
52
59
6.3 Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any Governmental
Authority is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Company of the Agreement or any
other Loan Document.
6.4 Binding Effect. This Agreement and each other Loan Document
constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.5 Litigation. Except as specifically disclosed in Part I of the
Disclosure Memorandum, there are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company, threatened or
contemplated, at law, in equity, in arbitration or before any Governmental
Authority, against the Company or any Subsidiary or any of their respective
properties (a) which purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby or thereby; or (b)
as to which there exists a reasonable likelihood of an adverse determination,
which determination would reasonably be expected to have a Material Adverse
Effect. No injunction, writ, temporary restraining order or other order of any
nature has been issued by any court or other Governmental Authority purporting
to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
6.6 No Default. No Event of Default or Unmatured Event of Default
exists or would result from the incurring of any Obligations by the Company. As
of the Effective Date, neither the Company nor any Subsidiary is in default
under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be expected to
have a Material Adverse Effect.
6.7 ERISA Compliance. Except as specifically disclosed in Schedule 6.7:
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code
53
60
and other federal or state law. Each Plan which is intended to qualify
under Section 401 (a) of the Code has received a favorable
determination letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the loss of such
qualification. The Company and each ERISA Affiliate has made all
required contributions to any Plan subject to Section 412 of the Code,
and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made
with respect to any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There
has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur; (ii) no contribution failure has occurred with respect to a
Pension Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA; (iii) no Pension Plan has any Unfunded Pension Liability; (iv)
neither the Company nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to
any Pension Plan (other than premiums due and not delinquent under
Section 4007 of ERISA); (v) neither the Company nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability (and no
event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (vi) neither the
Company nor any ERISA Affiliate has engaged in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA.
6.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans will
be used solely for the purposes set forth in and permitted by Section 7.12 and
Section 8.8. Neither the Company nor any Subsidiary is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
54
61
6.9 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such liens, title defects and other matters affecting in
title as could not, individually or in the aggregate, have a Material Adverse
Effect. As of the Effective Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
6.11 Financial Condition. The audited consolidated financial statements
of the Company and its Subsidiaries dated as of December 26, 1998, and the
related consolidated statements of income or operations, stockholders' equity
and cash flows for the fiscal year ended on that date:
(a) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise expressly
noted therein;
(b) fairly present the financial condition of the Company and
its Subsidiaries as of the dates thereof and the results of operations
for the periods covered thereby; and
(c) except as specifically disclosed in Part II of the
Disclosure Memorandum, show all material indebtedness and other
liabilities, absolute or contingent, of the Company and its
consolidated Subsidiaries as of the dates thereof, including
liabilities for all material taxes and material Contingent Obligations.
Since December 26, 1998, there has been no Material Adverse Effect.
55
62
6.12 Environmental Matters. Except as specifically disclosed in Part
III of the Disclosure Memorandum, the Company is in material compliance with all
applicable Environmental Laws and is not subject to Environmental Claims except
for such non compliance and Environmental Claims that could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.13 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Company is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
6.15 Copyrights, Patents, Trademarks and Licenses, etc. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the material patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the Company
or any Subsidiary, and which is material to the business or operations of the
Company and its Subsidiaries, infringes upon any rights held by any other
Person.
6.16 Subsidiaries. As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.16 and has no equity investments in any other corporation or entity other than
those specifically disclosed in part (b) of Schedule 6.16.
6.17 Insurance. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts, with such deductibles and covering such risks
as are
56
63
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
6.18 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations.
6.19 Full Disclosure. The representations and warranties made by the
Company and its Subsidiaries in the Loan Documents as of the date such
representations and warranties are made or deemed made, and the statements
contained in any exhibit, report, statement or certificate furnished by or on
behalf of the Company or any Subsidiary in connection with the Loan Documents,
taken as a whole, do not contain any untrue statement of a material fact or omit
any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
6.20 Year 2000. The Company and its Subsidiaries are taking all
reasonably necessary and appropriate steps to ascertain the extent of, and to
quantify and successfully address, business and financial risks facing the
Company and its subsidiaries as a result of the Year 2000 Problem, including
risks resulting from the failure of key vendors and customers of the Company to
successfully address the Year 2000 Problem and (b) the Company's and its
Subsidiaries' material computer applications are reasonably expected to, on a
timely basis, adequately address the Year 2000 Problem, except to the extent
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 Financial Statements. The Company shall deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders, with sufficient copies for each Lender:
57
64
(a) as soon as available, but not later than 100 days after
the end of each fiscal year, a copy of the audited consolidated balance
sheet of the Company and its Subsidiaries as at the end of such year
and the related consolidated statements of income or operations,
stockholders' equity and cash flows for such year, setting forth in
each case in comparative form the figures for the previous fiscal year,
and accompanied by the opinion of KPMG LLP or another
nationally-recognized independent public accounting firm ("Independent
Auditor"), which opinion (i) shall state that such consolidated
financial statements present fairly the Company's consolidated
financial position for the periods indicated in conformity with GAAP
and (ii) shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material portion
of the Company's or any Subsidiary's records; and
(b) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year, a
copy of the unaudited consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter and the related consolidated
statements of income, stockholders' equity and cash flows for the
period commencing on the first day and ending on the last day of such
quarter, and certified by a Responsible Officer as fairly presenting,
in accordance with GAAP (subject to ordinary, good faith year-end audit
adjustments), the financial position and the results of operations of
the Company and its Subsidiaries as of such date and for such period.
7.2 Certificates; Other Information. The Company shall furnish to the
Administrative Agent, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a Compliance Certificate
executed by a Responsible Officer;
(b) promptly, copies of all financial statements and reports
that the Company sends to its shareholders, and copies of all financial
statements and regular, periodic or special reports (including Forms
10-K, 10-Q and 8-K) that the Company or any Subsidiary may make to, or
file with, the SEC; and
58
65
(c) promptly, such additional information regarding the
business, financial or corporate affairs of the Company or any
Subsidiary as the Administrative Agent, at the request of any Lender,
may from time to time reasonably request.
7.3 Notices. The Company shall promptly (or, in the case of any event
described in clause (c)(ii) below, not less than 10 days prior to the occurrence
of such event) notify the Administrative Agent and each Lender:
(a) of the occurrence of any Event of Default or Unmatured
Event of Default known to the Company;
(b) of any of the following matters that has resulted or is
reasonably expected to result in a Material Adverse Effect: (i) breach
or non-performance of, or any default under, a Contractual Obligation
of the Company or any Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or any
Subsidiary and any Governmental Authority; or (iii) the commencement
of, or any material development in, any litigation or proceeding
affecting the Company or any Subsidiary including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any of the following events known to
the Company which affect the Company or any ERISA Affiliate, and
deliver to the Administrative Agent and each Lender a copy of any
notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the
Company or any ERISA Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a contribution failure with respect to a Pension
Plan sufficient to give rise to a Lien under Section 302(f) of
ERISA;
(iii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iv) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by the Company or any ERISA Affiliate; or
59
66
(v) the adoption of any amendment to a Plan subject
to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension
Liability; and
(vi) of any material change in accounting policies or
financial reporting practices by the Company and its
consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto. Each notice under subsection
7.3(a) shall describe with particularity any and all clauses or provisions of
this Agreement or any other Loan Document that, to the best of such Responsible
Officer's Knowledge, have been breached or violated.
7.4 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
corporate existence and valid existence under the laws of its
jurisdiction of organization;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business (except (i)
in connection with transactions permitted by Section 8.4 and sales of
assets permitted by Section 8.3 and (ii) to the extent that failure to
do so could not reasonably be expected to have a Material Adverse
Effect);
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.
7.5 Maintenance of Property. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all its property which is used or useful in
its business in good working order
60
67
and condition, ordinary wear and tear excepted, except to the extent that
failure to do so would not reasonably be expected to have a Material Adverse
Effect.
7.6 Insurance. The Company shall, and shall cause each Subsidiary to,
maintain, with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
7.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge, as the same shall become due and payable, all
their respective material obligations and liabilities, including:
(a) all material tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same
are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by the
Company or such Subsidiary; and
(b) all material claims which, if unpaid, would by law become
a Lien upon its property unless the same are contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary.
7.8 Compliance with Laws. The Company shall, and shall cause each
Subsidiary to, comply in all material respects with all material Requirements of
Law of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.9 Compliance with ERISA. The Company shall, and shall cause each of
its ERISA Affiliates to: (a) maintain each Plan in compliance in all material
respects with the applicable provisions of ERISA, the Code and other federal or
state law; (b) cause each Plan which is qualified under Section 401 (a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.
61
68
7.10 Inspection of Property and Books and Records. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which true and correct entries (sufficient to permit the preparation of
consolidated financial statements in conformity with GAAP) shall be made of all
financial transactions and matters involving the assets and business of the
Company and such Subsidiary. The Company shall permit, and shall cause each
Subsidiary to permit, the Administrative Agent or any Lender, at any reasonable
time during normal business hours upon advance request of the Administrative
Agent or the relevant Lender, to visit and inspect the properties of the Company
or any Subsidiary and to examine their respective corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss the affairs, finances and accounts of the Company or any Subsidiary with
the appropriate officers of the Company or such Subsidiary.
7.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
material compliance with all material Environmental Laws, except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.12 Use of Proceeds. The Company shall use the proceeds of the Loans
for working capital and other general corporate purposes not in contravention of
any Requirement of Law or of any Loan Document; provided that the Company shall
not use the proceeds of any Loan to make any Acquisition if the Board of
Directors of the Person to be acquired has not approved such Acquisition.
7.13 Year 2000. The Company and its Subsidiaries shall take all
reasonably necessary and appropriate steps to ascertain the extent of, and to
quantify and successfully address, business and financial risks facing the
Company and its subsidiaries as a result of the Year 2000 Problem, including
risks resulting from the failure of key vendors and customers of the Company to
successfully address the Year 2000 Problem.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or
62
69
unsatisfied, or any Letter of Credit shall remain outstanding, unless the
Required Lenders waive compliance in writing:
8.1 Financial Condition Covenants.
(a) Total Debt to EBITDA Ratio. The Company shall not permit
the Total Debt to EBITDA Ratio to be greater than (i) for each
Computation Period ending on or prior to the third anniversary of the
Effective Date, 3.00 to 1, and (ii) for any Computation Period ending
thereafter, 2.50 to 1.
(b) Interest Coverage Ratio. The Company shall not permit, as
of the last day of any Computation Period, the Interest Coverage Ratio
to be less than (i) for each Computation Period ending on or prior to
the third anniversary of the Effective Date, 2.50 to 1, and (ii) for
any Computation Period ending thereafter, 3.00 to 1.
8.2 Limitation on Liens. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on property of the Company or any
Subsidiary on the Effective Date and set forth in Schedule 8.2 securing
Indebtedness outstanding on such date, and any extension, renewal or
replacement of any such Lien so long as the principal amount secured
thereby is not increased and the scope of the property subject to such
Lien is not extended;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or
to the extent that non-payment thereof is permitted by Section 7.7,
provided that no notice of lien has been filed or recorded under the
Code or any other Requirement of Law;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable
without penalty or which
63
70
are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the
property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation;
(f) Liens on the property of the Company or any Subsidiary
securing (i) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, (ii)
surety bonds (excluding appeal bonds and other bonds posted in
connection with court proceedings or judgments) and (iii) other
non-delinquent obligations of a like nature; in each case incurred in
the ordinary course of business, provided all such Liens in the
aggregate would not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens
and liens securing contingent obligations on appeal bonds and other
bonds posted in connection with court proceedings or judgments,
provided that all such liens in the aggregate at any time outstanding
for the Company and its Subsidiaries do not exceed $5,000,000 unless,
in the case of judgment and judicial attachment liens, the enforcement
of such liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which,
individually or in the aggregate, do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the businesses of the Company and its Subsidiaries;
(i) purchase money security interests on any property acquired
or held by the Company or its Subsidiaries in the ordinary course of
business, securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such property;
provided that (i) any such Lien attaches to such property concurrently
with or within 90 days after the acquisition thereof, (ii) such Lien
attaches solely to the property so acquired in such transaction, (iii)
the principal amount of the debt secured
64
71
thereby does not exceed 100% of the cost of such property, and (iv) the
principal amount of the Indebtedness secured by any and all such
purchase money security interests shall not at any time exceed
$5,000,000;
(j) Liens securing obligations in respect of capital leases on
assets subject to such leases, provided that such capital leases are
otherwise permitted hereunder;
(k) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject
to restrictions against access by the Company in excess of those set
forth by regulations promulgated by the FRB, and (ii) such deposit
account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution;
(l) Liens arising in connection with Securitization
Transactions; provided that the aggregate investment or claim held at
any time by all purchasers, assignees or other transferees of (or of
interests in) receivables and other rights to payment in all
Securitization Transactions shall not exceed $25,000,000; and
(m) other Liens securing Indebtedness not at any time
exceeding in the aggregate $10,000,000.
8.3 Disposition of Assets. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, worn-out or surplus
equipment, all in the ordinary course of business;
(b) the sale, assignment or other transfer of accounts
receivable, lease receivables or other rights to payment pursuant to
any Securitization Transaction; provided that the aggregate investment
or claim held at any time by all purchasers, assignees or other
transferees of
65
72
(or of interests in) such receivables or other rights to payment shall
not exceed $25,000,000;
(c) the sale of assets that are leased back to the Company or
a Subsidiary, involving amounts not to exceed $ 10,000,000 in the
aggregate in any fiscal year; and
(d) dispositions not otherwise permitted hereunder which are
made for fair market value; provided that (i) at the time of any
disposition, no Event of Default shall exist or shall result from such
disposition and (ii) the aggregate value of all assets so disposed of
by the Company and its Subsidiaries in any fiscal year shall not exceed
$10,000,000.
8.4 Consolidations and Mergers. The Company shall not, and shall not
permit any Subsidiary to, merge, consolidate with or into, or convey, transfer,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any other Person, except:
(a) any Subsidiary may merge with the Company, provided that
the Company shall be the continuing or surviving corporation, or with
any one or more Subsidiaries, provided that if any transaction shall be
between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation, or the
continuing or surviving corporation shall be a Wholly-Owned Subsidiary;
(b) any Subsidiary may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to the Company or
another Wholly-Owned Subsidiary; and
(c) any merger, consolidation or disposition in connection
with a transaction permitted by Section 8.3 or an Acquisition permitted
by Section 8.5;
provided that, notwithstanding the foregoing, the Company shall not permit any
of South MECKCA, LLC, West MECKCA, LLC, Norbehouse, LP and HSW Mortgage Corp.
(each a "Restricted Subsidiary") to merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any other Person, except that (x)
any Restricted
66
73
Subsidiary may merge with the Company, provided that the Company shall be the
continuing or surviving corporation, or with any one or more of Restricted
Subsidiaries, and (y) any Restricted Subsidiary may sell all or substantially
all of its assets (upon voluntary liquidation or otherwise), to the Company or
another Restricted Subsidiary.
8.5 Loans and Investments. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or obligations or other securities
of, or any interest in, any Person, or make or commit to make any Acquisition,
or make or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in any Person (including any Affiliate
of the Company)(any of the foregoing an "Investment"), except for:
(a) Investments held by the Company or any Subsidiary in the
form of cash equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services
in the ordinary course of business;
(c) Investments by the Company in any of its Subsidiaries or
by any of its Subsidiaries to another of its Subsidiaries;
(d) other Investments (including those incurred in order to
consummate Acquisitions not otherwise prohibited herein), provided that
no Event of Default or Unmatured Event of Default exists or will result
therefrom;
(e) Investments constituting Permitted Swap Obligations or
payments or advances under Swap Contracts relating to Permitted Swap
Obligations;
(f) pledges or deposits required in the ordinary course of
business in connection with workmen's compensation, unemployment
insurance and other social security legislation;
(g) advances, loans or extensions of credit to suppliers in
the ordinary course of business by the Company and its Subsidiaries;
67
74
(h) advances, loans or extensions of credit in the ordinary
course of business by the Company and its Subsidiaries to employees of
the Company and its Subsidiaries;
(i) repurchases by the Company of its common stock to the
extent permitted by Section 8.10; and
(j) loans to an employee stock ownership plan established by
the Company, the proceeds of which are used solely to purchase stock of
the Company.
8.6 Limitation on Subsidiary Indebtedness. The Company shall not permit
its Subsidiaries to create, incur, assume or suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any Indebtedness
(other than Indebtedness owing to the Company or another Subsidiary) (but
including any deferred promissory notes (the "Deferred Notes") issued by a
Subsidiary pursuant to the Company's Agreement of Purchase and Sale with the
shareholders of Tamming Foods Ltd. in the original amount of $21,000,000
(Canadian)) at any time outstanding in an aggregate amount not to exceed the
excess of (i) $65,000,000 over (ii) to the extent not constituting Indebtedness,
obligations of its Subsidiaries in respect of Securitization Transactions to the
extent of the aggregate investment or claim held at any time by purchasers,
assignees or other transferees of (or of interests in) receivables and other
rights to payment in Securitization Transactions, provided that the Company
shall not permit HSW Mortgage Corp., Norbehouse, LP, South MECKCA, LLC and West
MECKCA, LLC to create, incur, assume or suffer to exist, or otherwise become or
remain directly or indirectly liable with respect to, any Indebtedness.
8.7 Transactions with Affiliates. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than the Company or a Subsidiary), except upon fair and
reasonable terms no less favorable to the Company or such Subsidiary than would
obtain in a comparable arm's-length transaction with a Person not an Affiliate
of the Company or such Subsidiary.
8.8 Use of Proceeds. The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to
repay or otherwise refinance indebtedness of the Company or others incurred to
68
75
purchase or carry Margin Stock or (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock.
8.9 Swap Contracts. The Company shall not, and shall not permit any
Subsidiary to, create, incur, assume or suffer to exist any obligations under
Swap Contracts except for Permitted Swap Obligations.
8.10 Restricted Payments. The Company shall not (i) declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock or (ii) purchase, redeem or otherwise acquire for value, or permit any
Subsidiary to purchase or otherwise acquire for value, any shares of the
Company's capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding, except that:
(a) the Company may declare and make dividend payments or
other distributions payable solely in its common stock;
(b) the Company may purchase, redeem or otherwise acquire
shares of its common stock or warrants or options to acquire any such
shares with the proceeds received from the substantially concurrent
issue of new shares of its common stock;
(c) so long as (1) no Event of Default or Unmatured Event of
Default exists or would result therefrom and (2) the Company's
consolidated stockholders' equity, after giving effect thereto, is not
less than $125,000,000, the Company may (x) declare and pay cash
dividends to its stockholders; and (y) purchase, redeem or otherwise
acquire shares of its common stock or warrants or options to acquire
such shares; and
(d) HSW Mortgage Corp. may declare and pay cash dividends to
the holders of its 10% Series A Cumulative Preferred Stock in an
aggregate amount not exceeding $15,000 in any fiscal year.
8.11 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in liability of the Company in an
69
76
aggregate amount in excess of $5,000,000; or (b) engage in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
8.12 Change in Business. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
8.13 Accounting Changes. The Company shall not, and shall not permit
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP.
8.14 HSW Mortgage Loan. The Company shall not, and shall not permit any
Subsidiary to, sell or otherwise dispose of any of its interest in South MECKCA,
LLC, West MECKCA, LLC, Norbehouse, LP or HSW Mortgage Corp. The Company shall
not permit HSW Mortgage Corp. to sell or otherwise dispose of or encumber any of
its rights under or in respect of the HSW Mortgage Loan or the related deed of
trust existing on the date hereof.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company fails to pay, (i) when and as
required to be paid herein, any amount of principal of any Loan or of
any L/C Obligation, or (ii) within three Business Days after the same
becomes due, any interest, fee or any other amount payable hereunder or
under any other Loan Document.
(b) Representation or Warranty. Any representation or warranty
by the Company or any Subsidiary made or deemed made herein or in any
other Loan Document, or which is contained in any certificate, document
or financial or other statement by the Company, any Subsidiary or any
Responsible Officer furnished at any time under this Agreement or under
any other Loan Document, is incorrect in any material respect on or as
of the date made or deemed made.
70
77
(c) Specific Defaults. The Company fails to perform or observe
any term, covenant or agreement contained in any of subsection 7.3(a),
Section 8.2, 8.3, 8.4, 8.8, 8.11 or 8.13.
(d) Other Defaults. The Company fails to perform or observe
any other term or covenant contained in this Agreement or any other
Loan Document, and such failure shall continue unremedied for a period
of 30 days after the date upon which written notice thereof is given to
the Company by the Administrative Agent or any Lender.
(e) Cross-Default. The Company or any Subsidiary (A) fails to
make any payment in respect of any Material Financial Obligations when
due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise); or (B) fails to perform or observe any other
condition or covenant, or any other event shall occur or condition
shall exist, under any agreement or instrument relating to any such
Material Financial Obligations, if the effect of such failure, event or
condition is to cause, or to permit the holder or holders of such
Material Financial Obligations or beneficiary or beneficiaries of such
Material Financial Obligations (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, such
Material Financial Obligations to become due and payable prior to its
stated maturity, or such Material Financial Obligations to become
payable or cash collateral in respect thereof to be demanded.
(f) Insolvency; Voluntary Proceedings. The Company or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they
become due, subject to applicable grace periods, if any, whether at
stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself, or (iv) takes any action to
effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the Company or any Subsidiary,
or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against a substantial part of the Company's
or any
71
78
Subsidiary's properties, and such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded, within
60 days after commencement, filing or levy; (ii) the Company or any
Subsidiary admits the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any Insolvency Proceeding with
respect to the Company or such Subsidiary; or (iii) the Company or any
Subsidiary acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion
of its property or business.
(h) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could
reasonably be expected to result in liability of the Company under
Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of $5,000,000; (ii) a contribution
failure shall occur with respect to a Pension Plan sufficient to give
rise to a Lien under Section 302(f) of ERISA; (iii) the aggregate
amount of Unfunded Pension Liability among all Pension Plans at any
time exceeds $5,000,000; or (iv) the Company or any ERISA Affiliate
shall fail to pay when due, after the expiration of any applicable
grace period (or any period during which (x) the Company is permitted
to contest its obligation to make such payment without incurring any
liability (other than interest) or penalty and (y) the Company is
contesting such obligation in good faith and by appropriate
proceedings), any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA or any contribution obligation
under Section 4243 of ERISA, in each case under a Multiemployer Plan in
an aggregate amount in excess of $5,000,000.
(i) Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered
against the Company or any Subsidiary involving in the aggregate a
liability (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) as to any
single or related series of transactions, incidents or conditions of
$10,000,000 or more, and the same shall remain unvacated
72
79
and unstayed pending appeal for a period of 30 days after the entry
thereof.
(j) Change of Control. Any Change of Control occurs.
9.2 Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans and
any obligation of each Issuing Lender to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing
under all outstanding Letters of Credit (whether or not any beneficiary
shall have presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letters of
Credit) to be immediately due and payable, and declare the unpaid
principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Company; and
(c) exercise on behalf of itself and the Lenders all other
rights and remedies available to it and the Lenders under the Loan
Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 9.1 (in the case of clause (i) of subsection (g), upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Loans and any obligation of each Issuing Lender to Issue Letters
of Credit shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Administrative
Agent, the Issuing Lender or any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or
73
80
remedies provided by law or in equity, or under any other instrument, document
or agreement now existing or hereafter arising.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment and Authorization; "Administrative Agent". Each Lender
hereby irrevocably (subject to Section 10.9) appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
Each Issuing Lender shall act on behalf of the Lenders with respect to
any Letters of Credit Issued by it and the documents associated therewith until
such time and except for so long as the Administrative Agent may agree at the
request of the Required Lenders to act for such Issuing Lender with respect
thereto; provided, however, that each Issuing Lender shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Article
X with respect to any acts taken or omissions suffered by such Issuing Lender in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent", as used in
this Article X, included such
74
81
Issuing Lender with respect to such acts or omissions, and (ii) as additionally
provided in this Agreement with respect to such Issuing Lender.
10.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees 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 agent or
attorney-in-fact that it selects with reasonable care.
10.3 Liability of Administrative Agent. None of the Administrative
Agent-Related Persons shall (i) be liable to any Lender for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by the Company or any Subsidiary or Affiliate of the Company, or
any officer thereof, contained in this Agreement or in any other Loan Document,
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 any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document, or for any failure of the Company or any other party to any Loan
Document to perform its obligations hereunder or thereunder. No Administrative
Agent-Related Person shall 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 any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
10.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement 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 counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under
75
82
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking 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 or any other Loan Document in accordance with a request or
consent of the Required Lenders and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of the Lenders.
For purposes of determining compliance with the conditions specified in
Section 5.1, each Lender that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
10.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Administrative Agent for the
account of the Lenders, unless the Administrative Agent shall have received
written notice from a Lender or the Company referring to this Agreement,
describing such Event of Default or Unmatured Event of Default and stating that
such notice is a "notice of default". If the Administrative Agent receives such
a notice, the Administrative Agent will notify the Lenders of its receipt of
such notice. The Administrative Agent shall take such action with respect to
such Event of Default or Unmatured Event of Default as may be requested by the
Required Lenders in accordance with this Article X, provided, however, that
unless and until the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest of
the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none of the
Administrative Agent-Related Persons has made any representation or warranty to
it, and that no act by the
76
83
Administrative Agent hereinafter taken, including any review of the affairs of
the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Administrative Agent-Related Person to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Administrative Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and
its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Company hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such 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 investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Administrative Agent, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Company which may come
into the possession of any Administrative Agent-Related Person.
10.7 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Administrative Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Company and without limiting the obligation of
the Company to do so), pro rata, from and against any and all Indemnified
Liabilities; provided, however, that no Lender shall be liable for the payment
to any Administrative Agent-Related Person of any portion of the Indemnified
Liabilities to the extent resulting from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
77
84
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the termination of this
Agreement, the payment of all Obligations and the resignation or replacement of
the Administrative Agent.
10.8 Administrative Agent in Individual Capacity. NationsBank and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Company and its Subsidiaries and Affiliates as though NationsBank were not the
Administrative Agent or an Issuing Lender hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, NationsBank or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans, NationsBank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent or an Issuing
Lender.
10.9 Successor Administrative Agent. The Administrative Agent may, and
at the request of the Required Lenders shall, resign as Administrative Agent
upon 30 days' notice to the Lenders. If the Administrative Agent resigns under
this Agreement, the Required Lenders (with, so long as no Event of Default
exists, the consent of the Company, which shall not be unreasonably withheld or
delayed) shall appoint from among the Lenders or Affiliates of Lenders a
successor administrative agent for the Lenders. If no successor administrative
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company, a successor administrative agent from among
the Lenders or Affiliates of Lenders. Upon the acceptance of its appointment as
successor administrative agent hereunder, such successor administrative agent
shall succeed to all the rights, powers and duties of the
78
85
retiring Administrative Agent and the term "Administrative Agent" shall mean
such successor administrative agent and the retiring Administrative Agent's
appointment, powers and duties as Administrative Agent shall be terminated.
After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article X and Sections 11.4 and
11.5 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. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is 30 days following a retiring Administrative Agent's notice of
resignation, the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor administrative agent as provided for above.
Notwithstanding the foregoing, however, NationsBank may not be removed as the
Administrative Agent at the request of the Required Lenders unless NationsBank
and any applicable Affiliate thereof shall also simultaneously be replaced as an
"Issuing Lender" hereunder pursuant to documentation in form and substance
reasonably satisfactory to NationsBank.
10.10 Withholding Tax. If any Lender is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Lender claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Lender agrees with and in favor of the Administrative
Agent, to deliver to the Administrative Agent:
(a) if such Lender claims an exemption from, or a reduction
of, withholding tax under a United States tax treaty, properly
completed IRS Form 1001 and IRS Form W-8 (or any successor forms)
before the payment of any interest in the first calendar year and
before the payment of any interest in each third succeeding calendar
year during which interest may be paid under this Agreement;
(b) if such Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Lender, two properly completed and executed copies of IRS Form 4224 (or
any successor form) before the payment of any interest is due in the
first taxable year of such Lender and in each succeeding taxable year
of such Lender during which interest may be
79
86
paid under this Agreement, and IRS Form W-9 (or any successor form);
and
(c) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Each such Lender agrees to promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
If any Lender claims exemption from, or reduction of, withholding tax
under a United States tax treaty by providing IRS Form 1001 (or any successor
form) and such Lender sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such Lender, such
Lender agrees to notify the Administrative Agent of the percentage amount in
which it is no longer the beneficial owner of Obligations of the Company to such
Lender. To the extent of such percentage amount, the Administrative Agent will
treat such Lender's IRS Form 1001 (or any successor form) as no longer valid.
If any Lender claiming exemption from United States withholding tax by
filing IRS Form 4224 (or any successor form) with the Administrative Agent
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Company to such Lender, such Lender agrees to undertake
sole responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
If any Lender is entitled to a reduction in the applicable withholding
tax, the Administrative Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable withholding tax after taking into
account such reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Lender not providing such forms or other documentation an amount equivalent to
the applicable withholding tax.
If the IRS or any other Governmental Authority of the United States or
other jurisdiction asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of any Lender
(because the
80
87
appropriate form was not delivered or was not properly executed, or because such
Lender failed to notify the Administrative Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax ineffective,
or for any other reason) such Lender shall indemnify the Administrative Agent
fully for all amounts paid, directly or indirectly, by the Administrative Agent
as tax or otherwise, including penalties and interest, and including any taxes
imposed by any jurisdiction on the amounts payable to the Administrative Agent
under this Section, together with all costs and expenses (including Attorney
Costs). The obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of the
Administrative Agent.
ARTICLE XI
MISCELLANEOUS
11.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or by the Administrative Agent at the written request of the Required Lenders)
and the Company and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment or consent shall, unless in writing and signed by all Lenders and the
Company and acknowledged by the Administrative Agent, do any of the following:
(a) increase or extend the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 9.2);
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under
any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan, or reduce any fees (other than the fees referred
to in subsection 2.9(a) or subsections 3.8(c) and (d)) or other amounts
payable hereunder or under any other Loan Document;
81
88
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for
the Lenders or any of them to take any action hereunder; or
(e) amend this Section or any other provision herein expressly
providing for consent or other action by all Lenders;
and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable Issuing Lender in addition to the Required
Lenders or all Lenders, as the case may be, affect the rights or duties of such
Issuing Lender under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, and (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Required Lenders or all Lenders, as the case may be, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document.
11.2 Notices. All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 11.2, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 11.2; or to such other address as shall
be designated by such party in a written notice to the other parties.
All such notices, requests, consents, approvals, waivers and
communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, or if delivered, upon
delivery; except that notices pursuant to Article II, III or X to the
Administrative Agent shall not be effective until actually received by the
Administrative Agent and notices pursuant to Article III to the applicable
Issuing Lender shall not be effective until actually received by such Issuing
Lender at the address specified for such "Issuing Lender" on Schedule 11.2.
82
89
Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Company. The Administrative Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Company to give such notice and the Administrative
Agent and the Lenders shall not have any liability to the Company or any other
Person on account of any action taken or not taken by the Administrative Agent
or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans and L/C Obligations shall not be
affected in any way or to any extent by any failure by the Administrative Agent
and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Lenders of a
confirmation which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in the telephonic or
facsimile notice.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
11.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse NationsBank (including in its capacity as
Administrative Agent and an Issuing Lender) and the Arranger within ten
Business Days after demand (subject to subsection 5.1(e)) for all costs
and expenses incurred by NationsBank (including in its capacity as
Administrative Agent and an Issuing Lender) and the Arranger in
connection with the negotiation, development, preparation, delivery,
syndication, documentation, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether
or not consummated), this Agreement, any other Loan Document and any
other document prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
including Attorney Costs incurred by NationsBank (including in its
83
90
capacity as Administrative Agent and an Issuing Lender) and the
Arranger with respect thereto; and
(b) pay or reimburse the Administrative Agent, the Arranger
and each Lender within ten Business Days after demand for all costs and
expenses (including Attorney Costs) incurred by them in connection with
the enforcement, attempted enforcement, or preservation of any rights
or remedies under this Agreement or any other Loan Document (including
in connection with any "workout" or restructuring regarding the Loans,
and including in any Insolvency Proceeding or appellate proceeding).
11.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Administrative Agent-Related Persons and each Lender and each of their
respective officers, directors, employees, counsel, agents and attorneys-in-fact
(each an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of the Administrative Agent or
replacement of any Lender) be imposed on, incurred by or asserted against any
such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) related to or arising out of this Agreement or the Loans or Letters
of Credit or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that the Company shall have no obligation hereunder to
any Indemnified Person with respect to Indemnified Liabilities resulting solely
from the gross negligence or willful misconduct of such Indemnified Person. The
agreements in this Section shall survive the termination of this Agreement and
the payment of all other Obligations.
11.6 Payments Set Aside. To the extent that the Company makes a payment
to the Administrative Agent or the Lenders, or the Administrative Agent or any
Lender exercises its right of
84
91
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, a receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the obligation
or part thereof originally intended to be satisfied shall be revived and
continued in full force and effect as if such payment had not been made or such
set off had not occurred and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its pro rata share of any amount so recovered
from or repaid by the Administrative Agent.
11.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Administrative Agent and each Lender.
11.8 Assignments, Participations, Etc. Any Lender may, with the written
consent of the Company (which consent shall not be required during the existence
of an Event of Default), the Administrative Agent and each Issuing Lender, at
any time assign and delegate to one or more Eligible Assignees (provided that no
written consent of the Company, the Administrative Agent or any Issuing Lender
shall be required in connection with any assignment and delegation by a Lender
to an Eligible Assignee that is an Affiliate of such Lender) (each an
"Assignee") all, or any ratable part of all, of the Loans, the Commitments, the
L/C Obligations and the other rights and obligations of such Lender hereunder,
in a minimum amount of $5,000,000 (or, if less, the amount of such Lender's
Commitment); provided, however, that the Company and the Administrative Agent
may continue to deal solely and directly with such Lender in connection with the
interest so assigned to an Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to the Company and the
Administrative Agent by such Lender and the Assignee; (ii) such Lender and its
Assignee shall have delivered to the Company and the Administrative Agent an
Assignment and Acceptance in the form of Exhibit D ("Assignment and Acceptance")
together with any Note or Notes subject to such assignment and (iii) such Lender
or the Assignee has paid to the Administrative Agent a processing fee in the
amount of $3,500.
85
92
From and after the date that the Administrative Agent notifies the
assignor Lender that it has received and provided its consent (and, to the
extent required, received the consent of each Issuing Lender and the Company)
with respect to an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Lender under the Loan Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations hereunder and under the
other Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
Within five Business Days after the effectiveness of any Assignment and
Acceptance pursuant to subsection 11.8(a)), the Company shall, upon request,
execute and deliver to the Administrative Agent a new Note evidencing the
applicable Assignee's assigned Loans and Commitment and, if the assignor Lender
has retained a portion of its Loans and its Commitment, a replacement Note in
the principal amount of the Commitment retained by the assignor Lender (such
Notes to be in exchange for, but not in payment of, the Notes held by the
assignor Lender). Immediately upon the effectiveness of any Assignment and
Acceptance, this Agreement shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and/or the
resulting adjustment of the Commitments arising therefrom.
Any Lender may at any time, with notice to the Company, sell to one or
more commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of such
Lender and the other interests of such Lender (the "originating Lender")
hereunder and under the other Loan Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Company, each Issuing Lender and the
Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which a
Participant has rights to approve any amendment to, or any consent or waiver
with
86
93
respect to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Lenders as
described in the first proviso to Section 11.1. In the case of any such
participation, the Participant shall be entitled to the benefit of Sections 4.1,
4.3, 4.4 and 11.5 as though it were also a Lender hereunder (provided that no
Participant shall be entitled to any greater amount pursuant to such Sections
than the originating Lender would have been entitled to receive if no such
participation had been sold), and if amounts outstanding under this Agreement
are due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement.
Notwithstanding any other provision in this Agreement, any Lender may
at any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement and any Note held by it in favor of
any Federal Reserve Bank, and such Federal Reserve Bank may enforce such pledge
or security interest in any manner permitted under applicable law.
11.9 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the Company or any Subsidiary, or
by the Administrative Agent on the Company's or such Subsidiary's behalf, under
this Agreement or any other Loan Document, and neither such Lender nor any of
its Affiliates shall use any such information other than in connection with or
in enforcement of this Agreement and the other Loan Documents or in connection
with other business now or hereafter existing or contemplated with the Company
or any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by such
Lender, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company or any Subsidiary known to such
Lender; provided, however, that any Lender may disclose such information (A) at
the request or pursuant to any requirement of any Governmental Authority to
which such Lender is subject or in connection with
87
94
an examination of such Lender by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the
Administrative Agent or any Lender or any of their respective Affiliates may be
party; (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to such Lender's
independent auditors and other professional advisors on a confidential basis;
(G) to any Participant or Assignee, actual or potential, provided that such
Person agrees in writing to keep such information confidential to the same
extent required of the Lenders hereunder; (H) as to any Lender or any of its
Affiliates, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Company or any Subsidiary is
party or is deemed party with such Lender or such Affiliate; and (I) to its
Affiliates on a confidential basis.
11.10 Set-off. In addition to any rights and remedies of the Lenders
provided by law, if an Unmatured Event of Default under subsection 9.1(a), (f)
or (g) or any Event of Default exists, each Lender is authorized at any time and
from time to time, without prior notice to the Company, any such notice being
expressly waived by the Company to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing by, such Lender to or for the credit or the account of the Company against
any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Company and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
11.11 Notification of Addresses, Lending Offices, Etc. Each Lender
shall notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
88
95
11.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute but one
and the same instrument.
11.13 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
11.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Administrative Agent and the Administrative Agent-Related Persons, and their
permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan Documents.
11.15 Governing Law and Jurisdiction. THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NORTH CAROLINA WITHOUT REGARD TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF; PROVIDED THAT THE PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE XXXXX XX XXXXX XXXXXXXX
XX XX XXX XXXXXX XXXXXX FOR THE WESTERN DISTRICT OF NORTH CAROLINA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY NORTH CAROLINA LAW.
89
96
11.16 Waiver of Jury Trial. TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY ADMINISTRATIVE AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. TO THE EXTENT PERMITTED
UNDER APPLICABLE LAW, THE COMPANY, THE LENDERS AND THE ADMINISTRATIVE AGENT EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
11.17 Pari Passu Obligations. The Company hereby acknowledges and
agrees that the obligations of the Company with respect to the Deferred Notes
(including, without limitation, under any guarantee thereof) shall be pari passu
in right of payment, liens (if any) or other security (if any) with the
Obligations.
11.18 Entire Agreement. This Agreement, together with the other Loan
Documents (and the Fee Letter referred in subsection 2.9(a)), embodies the
entire agreement and understanding among the Company, the Lenders and the
Administrative Agent, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
90
97
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
XXXXX, INC.
By: B. Xxxxx Xxxxxxx
--------------------------------
Title: VP Finance & CFO
-----------------------------
NATIONSBANK, N.A.,
as Administrative Agent
By: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
-----------------------------
NATIONSBANK, N.A., as an
Issuing Lender and a Lender
By: Xxxxxxx X. Xxxxxxx
--------------------------------
Title Vice President
-----------------------------
FIRST UNION NATIONAL BANK, as
Syndication Agent and a
Lender
By: Xxxxx X. Xxxxxx
--------------------------------
Title: Vice President
-----------------------------
WACHOVIA BANK, N.A., as
Documentation Agent and a
Lender
By: Xxxxxxxxxxx X. Xxxxxxx
--------------------------------
Title: Senior Vice President
-----------------------------
91
98
SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Lender Commitment Pro Rata Share
------ ---------- --------------
NationsBank, N.A. $20,000,000.00 33.333333333 %
First Union National Bank $20,000,000.00 33.333333333 %
Wachovia Bank, N.A. $20,000,000.00 33.333333333 %
TOTAL $60,000,000.00 100.000000000%
99
Schedule 6.7
ERISA
None
100
Schedule 6.16
SUBSIDIARIES OF XXXXX, INC.*
Name of Subsidiary State (Province) of Incorporation
------------------ ---------------------------------
Xxxxx Mfg. LLC (1) North Carolina
Caronuts, Inc. (1) North Carolina
Vista Bakery, Inc. (1) North Carolina
Lanhold Investments Inc. (1) Delaware
Tamming Foods Ltd. (2) Ontario
South MECKCA, LLC (1) Delaware
West MECKCA, LLC (1) Delaware
Norbehouse, LP (3) Delaware
HSW Mortgage Corp. (4) North Carolina
--------------------------
(1) Xxxxx, Inc. owns 100% of the outstanding voting equity securities.
(2) Subsidiary of Lanhold Investments Inc., which owns 100% of the
outstanding voting equity securities.
(3) Subsidiary of South MECKCA, LLC and West MECKCA, LLC. South MECKCA, LLC
is the sole general partner and owns 1% of the total capital and West
MECKLA, LLC is the sole limited partner and owns 99% of the total
capital.
(4) Subsidiary of Norbehouse, L.P., which owns 100% of the outstanding
voting equity securities and 0% of the outstanding 10% Series A
Cumulative Preferred stock.
--------------------------
* 1346260 Ontario, Inc. has been incorporated under the laws of Ontario;
however, the organization and capitalization have not occurred.
101
Schedule 8.2
PERMITTED LIENS
Deed of trust on all real property of Xxxxx , Inc. contiguous to and including
the corporate headquarters, located at 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxx, XX
00000, securing a $95 million note held by HSW Mortgage. A 1.33 acre portion of
the property subject to the deed of trust (part of a larger parcel containing a
total of 5.36 acres and having Charlotte-Mecklenburg property tax identification
number 205-161-14) is subject to a Purchase and Sale Agreement. The subject
property consists of a one story office building with 5,388 square feet of
office space located on the 1.33 acre parcel. Xxxxx has reserved an easement
across the 1.33 acre site for the benefit of the retained property which
consists of 4.03 acres.
102
SCHEDULE 11.2
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
XXXXX, INC.
-----------
Mr. B. Xxxxx Xxxxxxx
Chief Financial Officer
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, X.X. 00000
Telephone:
Facsimile:
NATIONSBANK, N.A.,
------------------
as Administrative Agent
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Administrative Agent's Payment Office:
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
For Credit To:
Reference: Xxxxx, Inc.
NATIONSBANK, N.A.,
------------------
as an Issuing Lender and as a Lender
Domestic and Offshore Lending Office:
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
103
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than borrowing notices and Notices of
Conversion/Continuation):
NationsBank, N.A.
c/o Bank of America
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
FIRST UNION NATIONAL BANK,
--------------------------
as Syndication Agent and a Lender
Domestic and Offshore Lending Office:
FIRST UNION NATIONAL BANK
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Credit and Draft Documentation Contact:
Attention: Xxxxx X. Xxxxxx
Vice President
NC0334
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Attention: Xxxxx Xxxx
Loan Operations
VA 7629
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Letter of Credit Contact:
Attention: Xxxxx Xxxxxx
2
104
Sales Assistant
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WACHOVIA BANK N.A.,
-------------------
as Documentation Agent and a Lender
Domestic and Offshore Lending Office:
WACHOVIA BANK, N.A.
000 Xxxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Operations and Letter of Credit Contact:
Attention: Xxxxxxxx Xxxxxx
Account Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit and Draft Documentation Contact:
Attention: Xxxxxxxxxxx X. Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3
105
EXHIBIT A
FORM OF
NOTICE OF BORROWING
Date:
-------------------
To: NationsBank, N.A., as Administrative Agent under the Credit
Agreement, dated as of April 12, 1999 (as amended from time to
time, the "Credit Agreement"), among Xxxxx, Inc., various
financial institutions and NationsBank, N.A., as
Administrative Agent.
Ladies and Gentlemen:
The undersigned, Xxxxx, Inc. (the "Company"), refers to the Credit
Agreement (terms defined therein being used herein as therein defined) and
hereby gives you notice irrevocably, pursuant to Section 2.3 of the Credit
Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is ______________, _____.
2. The Borrowing is to be comprised of [Base Rate] [Offshore Rate]
Loans.
3. The aggregate amount of the proposed Borrowing is $_____________.
4. [The duration of the Interest Period for the Offshore Rate Loans
included in the Borrowing shall be ______ months.]
The Company certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed Borrowing, before and
after giving effect thereto and to the application of the proceeds therefrom:
(a) the representations and warranties contained in Article VI
of the Credit Agreement are true and correct in all material respects
as though made on and as of such date (except to the extent such
representations and warranties expressly relate to an earlier date, in
which case they are true and correct as of such earlier date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed Borrowing;
and
(c) the proposed Borrowing will not cause the Total
Outstandings to exceed the combined Commitments of the Lenders.
XXXXX, INC.
By:
------------------------------
Title:
--------------------------
106
EXHIBIT B
FORM OF
NOTICE OF CONVERSION/CONTINUATION
Date:
---------------------
To: NationsBank, N.A., as Administrative Agent under the Credit
Agreement, dated as of April 12, 1999 (as amended from time to
time, the "Credit Agreement"), among Xxxxx, Inc., various
financial institutions and NationsBank, N.A., as
Administrative Agent.
Ladies and Gentlemen:
The undersigned, Xxxxx, Inc. (the "Company"), refers to the Credit
Agreement (terms defined therein being used herein as therein defined) and
hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit
Agreement, with respect to the [conversion] [continuation] of the Loans
specified herein, that:
1. The Conversion/Continuation Date is
2. The aggregate amount of the Loans to be [converted] [continued] is
$_____________.
3. The Loans are to be [converted into] [continued as] [Offshore Rate]
[Base Rate] Loans.
[4. The duration of the Interest Period for the Offshore Rate Loans
included in the [conversion] [continuation] shall be ______ months.]
The Company certifies that on the date hereof, and on the proposed
Conversion/Continuation Date both before and after giving effect thereto, no
Event of Default or Unmatured Event of Default has occurred and is continuing,
or would result from such proposed [conversion] [continuation].
XXXXX, INC.
By:
------------------------------
Title:
--------------------------
107
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
To: NationsBank, N.A., as Administrative Agent, and the Lenders
which are party to the Credit Agreement referred to below
Reference is made to the Credit Agreement dated as of April 12, 1999
(as amended or otherwise modified from time to time, the "Credit Agreement")
among Xxxxx, Inc. (the "Company"), various financial institutions and
NationsBank, N.A., as Administrative Agent. Terms used but not otherwise defined
herein are used herein as defined in the Credit Agreement.
I. Reports. Enclosed herewith is (i) a copy of the [annual audited/quarterly]
report of the Company as at ______________, ____ (the "Computation Date"), which
report fairly presents the consolidated financial position of the Company and
its Subsidiaries, as of the Computation Date and (ii) a copy of the Company's
most recent [Form 10-Q/Form 10-K] filed with the SEC.
II. Financial Tests. The Company hereby certifies and warrants to you that the
following is a true and correct computation as at the Computation Date of the
following ratios and/or financial restrictions contained in the Credit
Agreement:
A. Subsection 8.1(a) Total Debt to EBITDA Ratio
(1) Total Indebtedness as of the last day
of the Computation Period ending on
the Computation Date: $________
(2) EBITDA for the Computation Period
ending on the Computation Date $________
(3) Ratio of Item (1) to Item (2): _____.___%
(4) Maximum ratio allowed: ____ to 1
B. Subsection 8.1(b) Interest Coverage Ratio
(1) EBIT for the Computation Period ending
on the Computation Date: $________
108
(2) Interest Expense for the Computation Period
ending on the Computation Date: $________
(3) Ratio of Item (1) to Item (2): _____.___%
(4) Minimum ratio allowed: ____ to 1
III. Defaults. The Company hereby further certifies and warrants to you as of
the date of the filing of the [Form 10-Q/Form 10-K] referred to in clause I that
no Event of Default or Unmatured Event of Default has occurred and is
continuing.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed and delivered by its duly authorized officer this _____ day of
__________________, _____.
XXXXX, INC.
By:
------------------------------
Title:
--------------------------
2
109
EXHIBIT D
FORM OF
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of _________________________, is made between
_____________ ______________________ (the "Assignor") and
___________________________________ (the "Assignee").
RECITALS
The Assignor is party to the Credit Agreement dated as of April 12,
1999 (as amended or otherwise modified from time to time, the "Credit
Agreement") among Xxxxx, Inc. (the "Company"), various financial institutions
and NationsBank, N.A., as Administrative Agent. Terms defined in the Credit
Agreement and not defined in this Assignment and Acceptance are used herein as
defined in the Credit Agreement.
The Assignor wishes to assign to the Assignee [part of the] [all]
rights and obligations of the Assignor under the Credit Agreement in respect of
the Commitment, the Loans, the L/C Obligations and the other rights and
obligations of the Assignor in connection therewith, and the Assignee wishes to
accept assignment of such rights and to assume such obligations from the
Assignor, in each case on the terms and subject to the conditions of this
Assignment and Acceptance.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
I. Assignment and Acceptance.
A. Subject to the terms and conditions of this Assignment and Acceptance, (i)
the Assignor hereby sells, transfers and assigns to the Assignee, and (ii) the
Assignee hereby purchases, assumes and undertakes from the Assignor, without
recourse and without representation or warranty (except as provided in this
Assignment and Acceptance), ____% of the Assignor's Commitment, together with a
corresponding portion of the Assignor's outstanding Loans, L/C Obligations and
all related rights, benefits, obligations, liabilities and indemnities of the
Assignor under and in connection with the Credit Agreement (all
110
of the foregoing being herein called the "Assigned Rights and Obligations").
With effect on and after the Effective Date (as defined in Section5
hereof), the Assignee shall be a party to the Credit Agreement and succeed to
all of the rights and be obligated to perform all of the obligations of a Lender
under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification. The Assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender. It
is the intent of the parties hereto that the Assignor shall relinquish its
rights and be released from its obligations under the Credit Agreement to the
extent such obligations have been assumed by the Assignee; provided, however,
that the Assignor shall not relinquish its rights under Article IV or Sections
11.4 or 11.5 of the Credit Agreement in respect of the Assigned Rights and
Obligations to the extent such rights relate to the time prior to the Effective
Date.
B. After giving effect to the assignment and assumption set forth herein, on the
Effective Date the Assignee's Commitment will be $__________ and the Assignor's
Commitment will be $__________.
II. Payments.
A. As consideration for the sale, assignment and transfer contemplated in
Section1 hereof, the Assignee shall pay to the Assignor on the Effective Date in
immediately available funds an amount equal to the principal amount of all
outstanding and funded Loans and participations included within the Assigned
Rights and Obligations.
B. The [Assignor] [Assignee] further agrees to pay to the Administrative Agent a
processing fee in the amount specified in Section11.8(a) of the Credit
Agreement.
III. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date
with respect to the Assigned Rights and Obligations shall be for the account of
the Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Rights and Obligations shall be for
the account of the Assignee. Each of
2
111
the Assignor and the Assignee agrees that it will hold in trust for the other
party any interest, fees and other amounts which it may receive to which the
other party is entitled pursuant to the preceding two sentences and pay to the
other party any such amounts which it may receive promptly upon receipt.
IV. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section 7.1 of the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent, any Issuing Lender
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and legal decisions in
taking or not taking action under the Credit Agreement.
V. Effective Date; Notices.
A. As between the Assignor and the Assignee, the effective date for this
Assignment and Acceptance shall be __________, ___ (the "Effective Date");
provided that the following conditions precedent shall have been satisfied on or
before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company, the Administrative Agent and
each Issuing Lender, if required for an effective assignment of the
Assigned Rights and Obligations by the Assignor to the Assignee under
Section 11.8(a) of the Credit Agreement, shall have been duly obtained
and shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due
to the Assignor under this Assignment and Acceptance; and
(iv) the processing fee referred to in Section2(b) hereof
shall have been paid to the Administrative Agent.
3
112
(b) Promptly following the execution of this Assignment and Acceptance,
the Assignor shall deliver to the Company and the Administrative Agent, for
acknowledgment by the Administrative Agent, a Notice of Assignment substantially
in the form attached hereto as Schedule 1.
VI. [Administrative Agent. INCLUDE ONLY IF ASSIGNOR IS ADMINISTRATIVE AGENT
A. The Assignee hereby appoints and authorizes the Assignor to take such action
as Administrative Agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Administrative Agent by the Lenders
pursuant to the terms of the Credit Agreement.
B. The Assignee shall assume no duties or obligations held by the Assignor in
its capacity as Administrative Agent under the Credit Agreement.]
VII. Representations and Warranties.
A. The Assignor represents and warrants that (i) it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any Lien or other adverse claim; (ii) it is duly organized and
existing and it has the full power and authority to take, and has taken, all
action necessary to execute and deliver this Assignment and Acceptance and any
other documents required or permitted to be executed or delivered by it in
connection with this Assignment and Acceptance and to fulfill its obligations
hereunder; (iii) no notices to, or consents, authorizations or approvals of, any
Person are required (other than any already given or obtained) for its due
execution, delivery and performance of this Assignment and Acceptance, and apart
from any agreements or undertakings or filings required by the Credit Agreement,
no further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; and (iv) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignor, enforceable against the Assignor
in accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles.
B. The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements,
4
113
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation or warranty in connection
with, and assumes no responsibility with respect to, the solvency, financial
condition or statements of the Company, or the performance or observance by the
Company of any of its obligations under the Credit Agreement or any other
instrument or document furnished in connection therewith.
C. The Assignee represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken, all action
necessary to execute and deliver this Assignment and Acceptance and any other
documents required or permitted to be executed or delivered by it in connection
with this Assignment and Acceptance, and to fulfill its obligations hereunder;
(ii) no notices to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due execution,
delivery and performance of this Assignment and Acceptance; and apart from any
agreements or undertakings or filings required by the Credit Agreement, no
further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (iii) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignee, enforceable against the Assignee
in accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles;
and (iv) it is an Eligible Assignee.
VIII. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Company or the Administrative Agent which may be
required in connection with the assignment and assumption contemplated hereby.
5
114
IX. Miscellaneous.
A. Any amendment or waiver of any provision of this Assignment and Acceptance
shall be in writing and signed by the parties hereto. No failure or delay by
either party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof and any waiver of any breach of the provisions of
this Assignment and Acceptance shall be without prejudice to any rights with
respect to any other or further breach thereof.
B. All payments made hereunder shall be made without any set-off or
counterclaim.
C. The Assignor and the Assignee shall each pay its own costs and expenses
incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
D. This Assignment and Acceptance may be executed in any number of counterparts
and all of such counterparts taken together shall be deemed to constitute one
and the same instrument.
E. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NORTH CAROLINA. The Assignor and the
Assignee each irrevocably submits to the non-exclusive jurisdiction of any State
or Federal court sitting in Charlotte, North Carolina over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such North Carolina State or Federal court. Each
party to this Assignment and Acceptance hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding.
F. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ASSIGNOR AND THE ASSIGNEE EACH
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT
AGREEMENT, ANY RELATED DOCUMENT OR AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF
DEALING OR STATEMENT (WHETHER ORAL OR WRITTEN).
6
115
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:
---------------------------------
Title:
------------------------------
Address:
----------------------------
[ASSIGNEE]
By:
---------------------------------
Title:
------------------------------
Address:
----------------------------
7
116
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
_______________, ____
NationsBank, N.A.,
as Administrative Agent
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Ladies and Gentlemen:
We refer to the Credit Agreement, dated as of April 12, 1999 (as
amended or otherwise modified from time to time, the "Credit Agreement"), among
Xxxxx, Inc. (the "Company"), various financial institutions and NationsBank,
N.A., as Administrative Agent. Terms defined in the Credit Agreement are used
herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") of [all][part of] the right, title and interest of the Assignor in
and to the Credit Agreement (including, without limitation, [all][part of] the
right, title and interest of the Assignor in and to the Assignor's Commitment,
all outstanding Loans of the Assignor, and the Assignor's participation in the
L/C Obligations) pursuant to the Assignment and Acceptance Agreement attached
hereto (the "Assignment and Acceptance").
Before giving effect to such assignment, the Assignor's Pro Rata Share
is _________. After giving effect to such assignment (assuming no repayments,
new fundings or new issuances after ________), the Assignor's Pro Rata Share is
_________% and the Assignee's Pro Rata Share is _________%.
2. The Assignee agrees that, upon receiving the consent, if applicable,
of the Administrative Agent, each Issuing Lender and the Company to such
assignment, the Assignee will be bound by the terms of the Credit Agreement as
fully and to the same extent as if the Assignee were the Lender originally
holding such interest in the Credit Agreement.
117
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name:
----------------------------
Address:
----------------------------------
Attention:
--------------------------------
Telephone: ( )
--- -------------------------
Telecopier: ( )
--- ------------------------
Telex (Answerback):
-----------------------
(B) Payment Instructions:
Account No.:
------------------------------
At:
-------------------------------
-------------------------------
Reference:
-------------------------------
Attention:
-------------------------------
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and the Assignee contained in the Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
------------------------
Title:
---------------------
By:
------------------------
Title:
---------------------
2
118
[NAME OF ASSIGNEE]
By:
------------------------
Title:
---------------------
By:
------------------------
Title:
---------------------
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
XXXXX, INC.
By:
-----------------------------
Its:
----------------------------
NATIONSBANK, N.A., as
Administrative Agent
By:
-----------------------------
Its:
----------------------------
NATIONSBANK, N.A., as an
Issuing Lender
By:
-----------------------------
Its:
----------------------------
3
119
EXHIBIT E
FORM OF NOTE
$______________ ______________, ____
FOR VALUE RECEIVED, the undersigned, XXXXX, INC. (the "Company"),
hereby promises to pay to the order of _____________________ (the "Lender") the
principal sum of ________________ Dollars ($____________) or, if less, the
aggregate unpaid principal amount of all Loans made by the Lender to the Company
pursuant to the Credit Agreement, dated as of April 12, 1999 (as amended or
otherwise modified from time to time, the "Credit Agreement"), among the
Company, various financial institutions and NationsBank, N.A., as Administrative
Agent, on the dates and in the amounts provided in the Credit Agreement. The
Company further promises to pay interest on the unpaid principal amount of the
Loans evidenced hereby from time to time at the rates, on the dates, and
otherwise as provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on which
each Loan is made and each payment of principal with respect thereto on the
schedules annexed hereto and made a part hereof, or on continuations thereof
which shall be attached hereto and made a part hereof; provided that any failure
to endorse such information on such schedule or continuation thereof shall not
in any manner affect any obligation of the Company under the Credit Agreement
and this Promissory Note (this "Note").
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events.
Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of North Carolina applicable to contracts made and to be performed
entirely within such State.
120
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered as of the day and year first above written.
XXXXX, INC.
By:
--------------------------------------
Title:
-----------------------------------
2
121
Schedule A to Note
BASE RATE LOANS AND REPAYMENTS OF
BASE RATE LOANS
(2) (3)
Amount of Amount of (4)
(1) Base Rate Base Rate Notation
Date Loan Loan Repaid Made By
---- --------- ----------- --------
__________
__________
3
122
Schedule B to Note
OFFSHORE RATE LOANS AND REPAYMENTS
OF OFFSHORE RATE LOANS
(3)
(2) Interest (4)
Amount of Period for Amount of
Offshore Offshore Offshore (5)
(1) Rate Rate Rate Notation
Date Loan Loan Loan Repaid Made By
---- --------- ---------- ----------- --------
4
