1
EXHIBIT (b)(1)
EXECUTION COUNTERPART
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CREDIT AGREEMENT
DATED AS OF NOVEMBER 30, 1992
AMONG
XXXXXX XXXXXX, INC.,
THE LENDERS LISTED HEREIN,
AND
THIRD NATIONAL BANK IN NASHVILLE
AS AGENT
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS; CONSTRUCTION . . . . . . . . . . . 1
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. . . . . . . 18
SECTION 1.03. OTHER DEFINITIONAL TERMS. . . . . . . . . . . . 18
SECTION 1.04. EXHIBITS AND SCHEDULES. . . . . . . . . . . . . 18
ARTICLE II. REVOLVING LOANS . . . . . . . . . . . . . . . . 18
SECTION 2.01. INTENTIONALLY OMITTED . . . . . . . . . . . . . 18
SECTION 2.02. REVOLVING LOAN COMMITMENT . . . . . . . . . . . 18
SECTION 2.03. USE OF PROCEEDS . . . . . . . . . . . . . . . . 19
SECTION 2.04. INTENTIONALLY OMITTED . . . . . . . . . . . . . 19
SECTION 2.05. REVOLVING CREDIT NOTES: REPAYMENT
OF PRINCIPAL. . . . . . . . . . . . . . . . . . 19
SECTION 2.06. INTENTIONALLY OMITTED . . . . . . . . . . . . . 19
SECTION 2.07. VOLUNTARY REDUCTION OF REVOLVING
LOAN COMMITMENTS. . . . . . . . . . . . . . . . 19
SECTION 2.08. MANDATORY REDUCTION OF REVOLVING
LOAN COMMITMENTS. . . . . . . . . . . . . . . . 20
SECTION 2.09. EXTENSION OF CONVERSION DATE AND FINAL
MATURITY DATE . . . . . . . . . . . . . . . . . 20
ARTICLE III. CONVERSION OF REVOLVING CREDIT LOANS
TO TERM LOANS . . . . . . . . . . . . . . . . . 21
SECTION 3.01. TERM LOANS. . . . . . . . . . . . . . . . . . . 21
SECTION 3.02. REPAYMENT OF PRINCIPAL. . . . . . . . . . . . . 21
SECTION 3.03. MANDATORY PREPAYMENTS . . . . . . . . . . . . . 22
ARTICLE IV. GENERAL LOAN TERMS. . . . . . . . . . . . . . . 22
SECTION 4.01. FUNDING NOTICES . . . . . . . . . . . . . . . . 22
SECTION 4.02. DISBURSEMENT OF FUNDS . . . . . . . . . . . . . 23
SECTION 4.03. INTEREST. . . . . . . . . . . . . . . . . . . . 24
SECTION 4.04. INTEREST PERIODS. . . . . . . . . . . . . . . . 25
SECTION 4.05. FEES. . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.06. VOLUNTARY PREPAYMENTS OF BORROWINGS . . . . . . 26
SECTION 4.07. PAYMENTS, ETC . . . . . . . . . . . . . . . . . 27
SECTION 4.08. INTEREST RATE NOT ASCERTAINABLE, ETC. . . . . . 29
SECTION 4.09. ILLEGALITY. . . . . . . . . . . . . . . . . . . 30
SECTION 4.10. INCREASED COSTS . . . . . . . . . . . . . . . . 30
SECTION 4.11. LENDING OFFICES . . . . . . . . . . . . . . . . 32
SECTION 4.12. FUNDING LOSSES. . . . . . . . . . . . . . . . . 32
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SECTION 4.13. ASSUMPTIONS CONCERNING FUNDING OF
LIBOR ADVANCES. . . . . . . . . . . . . . . . . 32
SECTION 4.14. APPORTIONMENT OF PAYMENTS . . . . . . . . . . . 32
SECTION 4.15. SHARING OF PAYMENTS, ETC. . . . . . . . . . . . 33
SECTION 4.16. CAPITAL ADEQUACY. . . . . . . . . . . . . . . . 33
SECTION 4.17. BENEFITS TO GUARANTORS. . . . . . . . . . . . . 34
SECTION 4.18. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS . . . 34
ARTICLE VA. CONDITIONS TO BORROWINGS. . . . . . . . . . . . 35
SECTION 5A.01. CONDITIONS PRECEDENT TO INITIAL LOANS . . . . . 35
SECTION 5A.02. CONDITIONS TO ALL LOANS . . . . . . . . . . . . 38
ARTICLE VB. NOTICE PERIOD REGARDING CONDITIONS. . . . . . . 39
ARTICLE VIA. REPRESENTATIONS AND WARRANTIES. . . . . . . . . 40
SECTION 6A.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. . . . 40
SECTION 6A.02. CORPORATE POWER; AUTHORIZATION. . . . . . . . . 41
SECTION 6A.03. ENFORCEABLE OBLIGATIONS . . . . . . . . . . . . 41
SECTION 6A.04. NO LEGAL BAR. . . . . . . . . . . . . . . . . . 41
SECTION 6A.05. NO MATERIAL LITIGATION. . . . . . . . . . . . . 41
SECTION 6A.06. INVESTMENT COMPANY ACT, ETC . . . . . . . . . . 41
SECTION 6A.07. MARGIN REGULATIONS. . . . . . . . . . . . . . . 42
SECTION 6A.08. COMPLIANCE WITH ENVIRONMENTAL LAWS. . . . . . . 42
SECTION 6A.09. INSURANCE . . . . . . . . . . . . . . . . . . . 42
SECTION 6A.10. NO DEFAULT. . . . . . . . . . . . . . . . . . . 43
SECTION 6A.11. NO BURDENSOME RESTRICTIONS. . . . . . . . . . . 43
SECTION 6A.12. TAXES . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6A.13. SUBSIDIARIES. . . . . . . . . . . . . . . . . . 43
SECTION 6A.14. FINANCIAL STATEMENTS. . . . . . . . . . . . . . 43
SECTION 6A.15. ERISA . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6A.16. PATENTS, TRADEMARKS, LICENSES, ETC. . . . . . . 45
SECTION 6A.17. OWNERSHIP OF PROPERTY . . . . . . . . . . . . . 45
SECTION 6A.18. INDEBTEDNESS. . . . . . . . . . . . . . . . . . 46
SECTION 6A.19. FINANCIAL CONDITION . . . . . . . . . . . . . . 46
SECTION 6A.20. INTENTIONALLY OMITTED . . . . . . . . . . . . . 46
SECTION 6A.21. LABOR MATTERS . . . . . . . . . . . . . . . . . 47
SECTION 6A.22. PAYMENT OR DIVIDEND RESTRICTIONS. . . . . . . . 47
SECTION 6A.23. DISCLOSURE. . . . . . . . . . . . . . . . . . . 47
ARTICLE VIB. REPRESENTATION AND WARRANTY NOTICE PERIOD . . . 48
ARTICLE VIC. REPRESENTATIONS AND WARRANTIES REGARDING
SCHEDULE 7A.01 SUBSIDIARIES . . . . . . . . . . 48
ARTICLE VIIA. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . 49
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SECTION 7A.01. CORPORATE EXISTENCE, ETC. . . . . . . . . . . . 49
SECTION 7A.02. COMPLIANCE WITH LAWS, ETC . . . . . . . . . . . 49
SECTION 7A.03. PAYMENT OF TAXES AND CLAIMS, ETC. . . . . . . . 49
SECTION 7A.04. KEEPING OF BOOKS. . . . . . . . . . . . . . . . 49
SECTION 7A.05. VISITATION, INSPECTION, ETC . . . . . . . . . . 49
SECTION 7A.06. INSURANCE; MAINTENANCE OF PROPERTIES. . . . . . 50
SECTION 7A.07. REPORTING COVENANTS . . . . . . . . . . . . . . 50
SECTION 7A.08. FINANCIAL COVENANTS . . . . . . . . . . . . . . 55
SECTION 7A.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS. . . . 56
SECTION 7A.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL. . . . 56
SECTION 7A.11. TERMINATION OF DESIGNATED SUBSIDIARIES . . . . 56
ARTICLE VIIB. SCHEDULE AMENDMENTS . . . . . . . . . . . . . . 56
ARTICLE VIII. NEGATIVE COVENANTS. . . . . . . . . . . . . . . 57
SECTION 8.01. INDEBTEDNESS. . . . . . . . . . . . . . . . . . 57
SECTION 8.02. LIENS . . . . . . . . . . . . . . . . . . . . . 57
SECTION 8.03. MERGERS, ACQUISITIONS, SALES, ETC . . . . . . . 58
SECTION 8.04. DIVIDENDS, ETC. . . . . . . . . . . . . . . . . 59
SECTION 8.05. INVESTMENTS, LOANS, ETC . . . . . . . . . . . . 59
SECTION 8.06. SALE AND LEASEBACK TRANSACTIONS . . . . . . . . 60
SECTION 8.07. TRANSACTIONS WITH AFFILIATES. . . . . . . . . . 60
SECTION 8.08. OPTIONAL PREPAYMENTS. . . . . . . . . . . . . . 60
SECTION 8.09. CHANGES IN BUSINESS . . . . . . . . . . . . . . 61
SECTION 8.10. ERISA . . . . . . . . . . . . . . . . . . . . . 61
SECTION 8.11. ADDITIONAL NEGATIVE PLEDGES . . . . . . . . . . 61
SECTION 8.12. LIMITATION ON PAYMENT RESTRICTIONS
AFFECTING CONSOLIDATED COMPANIES. . . . . . . . 61
SECTION 8.13. ACTIONS UNDER CERTAIN DOCUMENTS . . . . . . . . 62
ARTICLE IX. EVENTS OF DEFAULT . . . . . . . . . . . . . . . 62
SECTION 9.01. PAYMENTS. . . . . . . . . . . . . . . . . . . . 62
SECTION 9.02. COVENANTS WITHOUT NOTICE. . . . . . . . . . . . 62
SECTION 9.03. OTHER COVENANTS . . . . . . . . . . . . . . . . 63
SECTION 9.04. REPRESENTATIONS . . . . . . . . . . . . . . . . 63
SECTION 9.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. . . . . . . 63
SECTION 9.06. DEFAULTS UNDER OTHER AGREEMENTS . . . . . . . . 63
SECTION 9.07. BANKRUPTCY. . . . . . . . . . . . . . . . . . . 63
SECTION 9.08. ERISA . . . . . . . . . . . . . . . . . . . . . 64
SECTION 9.09. MONEY JUDGMENT. . . . . . . . . . . . . . . . . 64
SECTION 9.10. CHANGE IN CONTROL OF XXXXXX . . . . . . . . . . 64
SECTION 9.11. DEFAULT UNDER OTHER CREDIT DOCUMENTS. . . . . . 65
SECTION 9.12. ATTACHMENTS . . . . . . . . . . . . . . . . . . 65
SECTION 9.13. ADJUSTMENT TO PRO RATA SHARE. . . . . . . . . . 65
ARTICLE X. THE AGENT . . . . . . . . . . . . . . . . . . . 66
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SECTION 10.01. APPOINTMENT OF AGENT. . . . . . . . . . . . . . 66
SECTION 10.02. AUTHORIZATION OF AGENT WITH RESPECT
TO THE SECURITY DOCUMENTS . . . . . . . . . . . 67
SECTION 10.03. NATURE OF DUTIES OF AGENT . . . . . . . . . . . 67
SECTION 10.04. LACK OF RELIANCE ON THE AGENT . . . . . . . . . 67
SECTION 10.05. CERTAIN RIGHTS OF THE AGENT . . . . . . . . . . 68
SECTION 10.06. RELIANCE BY AGENT . . . . . . . . . . . . . . . 68
SECTION 10.07. INDEMNIFICATION OF AGENT. . . . . . . . . . . . 69
SECTION 10.08. THE AGENT IN ITS INDIVIDUAL CAPACITY. . . . . . 69
SECTION 10.09. HOLDERS OF NOTES. . . . . . . . . . . . . . . . 69
SECTION 10.10. SUCCESSOR AGENT . . . . . . . . . . . . . . . . 70
ARTICLE XI. MISCELLANEOUS . . . . . . . . . . . . . . . . . 70
SECTION 11.01. NOTICES . . . . . . . . . . . . . . . . . . . . 70
SECTION 11.02. AMENDMENTS, ETC . . . . . . . . . . . . . . . . 71
SECTION 11.03. NO WAIVER; REMEDIES CUMULATIVE. . . . . . . . . 71
SECTION 11.04. PAYMENT OF EXPENSES, ETC. . . . . . . . . . . . 72
SECTION 11.05. RIGHT OF SETOFF . . . . . . . . . . . . . . . . 73
SECTION 11.06. BENEFIT OF AGREEMENT. . . . . . . . . . . . . . 74
SECTION 11.07. GOVERNING LAW; SUBMISSION TO JURISDICTION . . . 76
SECTION 11.08. INDEPENDENT NATURE OF LENDERS, RIGHTS . . . . . 77
SECTION 11.09. COUNTERPARTS. . . . . . . . . . . . . . . . . . 77
SECTION 11.10. EFFECTIVENESS; SURVIVAL . . . . . . . . . . . . 77
SECTION 11.11. SEVERABILITY. . . . . . . . . . . . . . . . . . 77
SECTION 11.12. INDEPENDENCE OF COVENANTS . . . . . . . . . . . 78
SECTION 11.13. CHANGE IN ACCOUNTING PRINCIPLES,
FISCAL YEAR OR TAX LAWS . . . . . . . . . . . . 78
SECTION 11.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. . . . . 78
SECTION 11.15. INTEREST. . . . . . . . . . . . . . . . . . . . 78
SCHEDULES
SCHEDULE 5A.01(H) UCC SEARCH LOCATIONS
SCHEDULE 6A.01 ORGANIZATION AND OWNERSHIP OF
SUBSIDIARIES
SCHEDULE 6A.05 CERTAIN PENDING AND THREATENED
LITIGATION
SCHEDULE 6A.08(A) ENVIRONMENTAL COMPLIANCE
SCHEDULE 6A.08(B) ENVIRONMENTAL NOTICES
SCHEDULE 6A.08(C) ENVIRONMENTAL PERMITS
SCHEDULE 6A.11 BURDENSOME RESTRICTIONS
SCHEDULE 6A.12 TAX FILINGS AND PAYMENTS
SCHEDULE 6A.13 WORD, INCORPORATED AND ITS SUBSIDIARIES
SCHEDULE 6A.14 LEASES OF WORD, INCORPORATED
SCHEDULE 6A.15 EMPLOYEE BENEFIT MATTERS
SCHEDULE 6A.16 PATENT, TRADEMARK, LICENSE, AND
OTHER INTELLECTUAL PROPERTY
MATTERS
SCHEDULE 6A.17 OWNERSHIP OF PROPERTIES
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SCHEDULE 6A.18 REFINANCED INDEBTEDNESS
SCHEDULE 6A.21 LABOR AND EMPLOYMENT MATTERS
SCHEDULE 6A.22 DIVIDEND RESTRICTIONS
SCHEDULE 7A.01 SUBSIDIARIES OF XXXXXX XXXXXX, INC.
EXCLUDED FROM CERTAIN PROVISIONS OF
CREDIT AGREEMENT
SCHEDULE 7A.08 FINANCIAL COVENANT CALCULATIONS
SECOND QUARTER 1992
SCHEDULE 8.01(B) EXISTING INDEBTEDNESS
SCHEDULE 8.02 EXISTING LIENS
EXHIBITS
EXHIBIT A FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
EXHIBIT B INTENTIONALLY OMITTED
EXHIBIT C FORM OF CONTRIBUTION
AGREEMENT
EXHIBIT D FORM OF ESCROW LETTER
EXHIBIT E FORM OF GUARANTY AGREEMENT
EXHIBIT F INTENTIONALLY OMITTED
EXHIBIT G FORM OF REVOLVING CREDIT NOTE
EXHIBIT H FORM OF TERM NOTE
EXHIBIT I FORM OF CLOSING CERTIFICATE
EXHIBIT J FORM OF OPINION OF BASS, XXXXX & XXXX
EXHIBIT K FORM OF REVOLVING CREDIT PROMISSORY NOTE
EXHIBIT L FORM OF WORD, INCORPORATED PLEDGE
AGREEMENT
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is made and entered into
as of the 30th day of November, 1992, by and among XXXXXX XXXXXX, INC., a
Tennessee corporation ("Xxxxxx"), THIRD NATIONAL BANK IN NASHVILLE, a national
banking association ("TNB"), the other banks and lending institutions listed on
the signature pages hereof and any assignees of TNB or such other banks and
lending institutions that become "Lenders" as provided herein (TNB, and such
other banks, lending institutions and assignees are referred to collectively
herein as the "Lenders"), and THIRD NATIONAL BANK IN NASHVILLE, in its capacity
as agent for the Lenders and each successor agent for such Lenders as may be
appointed from time to time pursuant to Article X hereof (the "Agent");
W I T N E S S E T H:
WHEREAS, Xxxxxx has requested and the Lenders have agreed to
provide certain credit facilities to Xxxxxx on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Xxxxxx, the Lenders and the Agent agree upon the
terms and subject to the conditions set forth herein as follows:
ARTICLE I.
DEFINITIONS: CONSTRUCTION
SECTION 1.01. Definitions. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):
"Accepted Commitment" shall have the meaning ascribed to it in Section 4.05(a).
"Accounts" shall mean all of Xxxxxx'x accounts, now existing or
hereafter acquired, as that term is defined by the Uniform Commercial Code now
in effect in Tennessee.
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time under the Revolving Loans or the Term Loans, which
Advance shall be made or outstanding as a Base Rate Advance or a LIBOR Advance,
as the case may be.
8
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control," (including with
correlative meanings, the terms "controlling," "controlled by," and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person.
"Agent" shall mean Third National Bank in Nashville, a national
banking association, and any successor agent appointed pursuant to Section
10.10 hereto.
"Agreement" shall mean this Credit Agreement, as amended,
restated or supplemented from time to time.
"Applicable Base Rate Margin" shall mean, with respect to all
outstanding Borrowings consisting of Base Rate Advances through March 31, 1994,
one percent (1.00%) per annum, and with respect to all outstanding Borrowings
consisting of Base Rate Advances thereafter, the higher relevant percentage
indicated below based on the percentages indicated for Xxxxxx'x Interest
Coverage Ratio and Leverage Ratio as determined on the date that is ninety (90)
days after the end of each fiscal year of Xxxxxx based upon the audited
financial statements for the immediately preceding fiscal year, with such
Applicable Base Rate Margin to be immediately effective as of such date with
respect to all outstanding amounts under the Revolving Loans or Term Loans, as
the case may be:
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Interest
Revolving Term Coverage Leverage
Loans Loans Ratio Ratio
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0.75% 1.0% less than greater than
2.0:1.0 0.45:1.0
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0.0% 0.25% greater than less than or equal to
or equal to 0.45:1.0 and greater
2.0:1.0 than 0.35:1.0
and less than 3.2:1.0
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0.0% 0.0% greater than less than or equal to
or equal to 0.35:1.0
3.2:1.0
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Notwithstanding the foregoing, in the event Xxxxxx does not
deliver the audited financial statements for the immediately preceding fiscal
year in a manner that permits the determinations
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required in the definition of Applicable Base Rate Margin within ninety (90)
days of the end of Xxxxxx'x fiscal year, commencing at the end of such ninety
(90) day period and continuing until such audited financial statements are made
available, the Applicable Base Rate Margin shall be the highest rates
applicable to Revolving Loans and Terms Loans, as the case may be, as set forth
in the preceding chart.
"Applicable LIBOR Rate Margin" shall mean, with respect to all
outstanding Borrowings consisting of LIBOR Advances through March 31, 1994, two
and three quarters percent (2.75%) per annum, and with respect to all
outstanding Borrowings consisting of LIBOR Advances thereafter, the higher
relevant percentage indicated below based upon the percentages indicated for
Xxxxxx'x Interest Coverage Ratio and Leverage Ratio as determined on the date
that is ninety (90) days after the end of each fiscal year of Xxxxxx based upon
the audited financial statements for the immediately preceding fiscal year,
with such Applicable LIBOR Rate Margin to be immediately effective as of such
date with respect to all outstanding amounts under the Revolving Loans or Term
Loans, as the case may be:
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Interest
Revolving Loans Term Coverage Leverage
Loans Ratio Ratio
2.50% 2.75% less than greater than 0.45:1.0
2.0:1.0
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1.50% 1.75% greater than less than or equal to
or equal to 0.45:1.0 and greater
2.0:1.0 than 0.35:1.0
and less than 3.2:1.0
-------------------------------------------------------------------------------------------
1.0% 1.25% greater than less than or equal to
or equal to 0.35:1.0
3.2:1.0
===========================================================================================
Notwithstanding the foregoing, in the event Xxxxxx does not
deliver the audited financial statements for the immediately preceding fiscal
year in a manner that permits the determinations required in the definition of
Applicable LIBOR Rate Margin within ninety (90) days of the end of Xxxxxx'x
fiscal year, commencing at the end of such ninety (90) day period and
continuing until such audited financial statements are made available, the
Applicable LIBOR Rate Margin shall be the highest rates applicable to Revolving
Loans and Terms Loans, as the case may be, as set forth in the preceding chart.
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"Asset Sale" shall mean any sale or other disposition (or a
series of related sales or other dispositions), including without limitation,
loss, damage, destruction or taking, by any Consolidated Company to any Person
other than a Consolidated Company, of any property or asset (including capital
stock but excluding the issuance and sale by Xxxxxx of its own capital stock)
having an aggregate Asset Value in excess of $100,000, other than sales or
other dispositions made in the ordinary course of business of any Consolidated
Company.
"Asset Value" shall mean, with respect to any property or asset
of any Consolidated Company as of any particular date, an amount equal to the
greater of (a) the then book value of such property or asset as established in
accordance with GAAP, or (b) the then fair market value of such property or
asset as determined in good faith by the board of directors of such
Consolidated Company.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance Agreement entered into by a Lender and an Eligible Assignee in
accordance with the terms of this Agreement and substantially in the form of
Exhibit A attached hereto.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C. Section 101 et seq.).
"Base Rate" shall mean the higher of (a) the rate that the Agent
publicly announces from time to time to be its prime lending rate, as in effect
from time to time, or (b) the Federal Funds Rate, as in effect from time to
time, plus one-half of one percent (0.50%) per annum (with any changes in such
rates to be effective as of the date of change any change in such rates). The
Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate charged to any customers. The Agent may make
commercial loans or other loans at rates of interest at, above or below the
Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or outstanding as
a Revolving Loan or a Term Loan, as the case may be, bearing interest based on
the Base Rate.
"Borrowing" shall mean the incurrence by Xxxxxx under any
Facility of Advances of one Type concurrently having the same Interest Period
or the continuation or conversion of an existing Borrowing or Borrowings in
whole or in part.
"Business Day" shall mean any day excluding Saturday, Sunday and
any other day on which banks are required or authorized to close in Nashville,
Tennessee or New York, New York.
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"Change in Control Provision" shall mean any term or provision
contained in any indenture, debenture, note or other agreement or document
evidencing or governing Indebtedness of Xxxxxx evidencing debt or a commitment
to extend loans in excess of $1,000,000.00 which requires or permits the
holder(s) of such Indebtedness of Xxxxxx to require that such Indebtedness of
Xxxxxx be redeemed, repurchased, defeased, prepaid or repaid, either in whole
or in part, or the maturity of such Indebtedness of Xxxxxx to be accelerated in
any respect, as a result of a change in ownership of the capital stock of
Xxxxxx or voting rights with respect thereto.
"Closing Date" shall mean the date on or before November 30,
1992, on which the initial Loans are made and the conditions set forth in
Article VA are satisfied.
"Consolidated Companies" shall mean, collectively, Xxxxxx and all
of its Subsidiaries, including Word, Incorporated and its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of Xxxxxx,
an amount equal to (a) the sum for such fiscal period of its Consolidated Net
Income (Loss) plus, to the extent subtracted in determining such Consolidated
Net Income (Loss), provisions for (i) taxes based on income, (ii) Consolidated
Interest Expense, and (iii) charges taken in conformity with FASB-106, minus
(b) any items of gain (or plus any items of loss) that were (A) not realized in
the ordinary course of business, and (B) the result of any sale of assets.
"Consolidated Interest Expense" shall mean, for any fiscal period
of Xxxxxx, total interest expense of the Consolidated Companies (including
without limitation, interest expense attributable to capitalized leases)
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal
period of Xxxxxx, the net income (or loss) of the Consolidated Companies on a
consolidated basis for such period (taken as a single accounting period)
determined in conformity with GAAP, but excluding therefrom (to the extent
otherwise included therein) any income (or loss) of any Person accrued prior to
the date such Person becomes a Subsidiary of Xxxxxx or is merged into or
consolidated with any Consolidated Company or all or substantially all of such
Person's assets are acquired by any Consolidated Company.
"Consolidated Net Worth" shall mean, as of any date of
determination, Shareholders' Equity of Xxxxxx.
"Contractual Obligation" of any Person shall mean any provision
of any security issued by such Person or of any
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agreement, instrument or undertaking under which such Person is obligated or by
which it or any of the property owned by it is bound.
"Contribution Agreement" shall mean the Contribution Agreement
executed by each of the Guarantors, substantially in the form of Exhibit C
attached hereto, as the same may be amended, restated or supplemented from time
to time.
"Conversion Date" shall mean the date on which the Revolving Loan
Commitments shall terminate, April 30, 1996, unless further extended in
accordance with Section 2.09, with all amounts outstanding thereunder to be
paid in full or converted to a Term Loan in accordance with Section 3.01
hereof.
"Creditanstalt - Bankverein Adjusted Pro Rata Share" shall equal
the quotient of the following formula:
(Creditanstalt - Bankverein's Pro Rata Share of
the outstanding principal amount
under the Facilities
-----------------------------------------------
(Total Outstanding Principal)
"Credit Documents" shall mean, collectively, this Agreement, the
Notes, the Guaranty Agreement, the Word, Incorporated Pledge Agreement and all
other Security Documents, if any.
"Credit Parties" shall mean, collectively, each of Xxxxxx, the
Guarantors and every other Person who from time to time executes a Security
Document with respect to all or any portion of the Obligations.
"Default" shall mean any condition or event that, with notice or
lapse of time or both, would constitute an Event of Default.
"DOL" shall have the meaning ascribed to it in Section
7A.07(j)(iv).
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful
money of the United States of America.
"Eligible Assignee" shall mean (a) a commercial bank organized
under the laws of the United States, or any state thereof, having total assets
in excess of $1,000,000,000 or any commercial finance or asset based lending
Affiliate of any such commercial bank and (b) any Lender or any Affiliate of
any Lender.
"Environmental Laws" shall mean all federal, state and local
statutes, laws, codes, regulations, rules and ordinances, and all orders or
decrees issued, promulgated or approved thereunder,
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13
now or hereafter in effect (including, without limitation, those with respect
to asbestos or asbestos containing material or exposure to asbestos or asbestos
containing material), relating to, regulating or imposing liability or
standards of conduct concerning (a) pollution or protection of the environment,
(b) emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous Substance,
petroleum including crude oil or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any Environmental Law into
the environment (including without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), (c) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of any Hazardous Substance, petroleum including crude oil
or any fraction thereof, any petroleum product or other waste, chemicals or
substances regulated by any Environmental Law, or (d) underground storage tanks
and related piping, and emissions, discharges and releases or threatened
releases therefrom, such Environmental Laws to include, without limitation (i)
the Clean Air Act (42 U.S.C. Section 7401 et seq.), (ii) the Clean Water Act
(33 U.S.C. Section 1251 et sea.), (iii) the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.), (iv) the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.), (v) the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act (42 U.S.C. Section 9601 et seq.), (vi) any
"Superfund" or "Superlien" law, including without limitation the Tennessee
Hazardous Waste Management Acts of 1977 and of 1983, as amended Tennessee Code
Annotated Section 00-000-000 et seq. and Section 00-000-000 et seq., and
(vii) all applicable national and local laws or regulations with respect to
environmental control.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person, each
trade or business (whether or not incorporated) that is a member of a group of
which that Person is a member and that is under common control within the
meaning of the regulations promulgated under Section 414 of the Tax Code.
"Escrow Letter" shall mean a letter agreement between Xxxxxx and
the Agent substantially in the form of Exhibit D attached hereto.
"Event of Default" shall have the meaning ascribed to it in
Article IX.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
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"Executive Officer" shall mean with respect to any Person, the
president, vice presidents, chief financial officer, treasurer, secretary and
any Person holding comparable offices or duties.
"Facility" or "Facilities" shall mean the Revolving Loan
Commitments or the Term Loans, as the context may indicate.
"Facility Fee" has the meaning ascribed to it in Section 4.05(a).
"FASB-106" shall mean Financial Accounting Standards Board
Statement No. 106, as in effect on the date of this Agreement, specifying
applicable accounting principles with respect to accrual of the expected cost
of providing post retirement benefits to employees or their dependents.
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate is not
so published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three (3) Federal
funds brokers of recognized standing selected by the Agent.
"Final Maturity Date" shall mean the earlier of (a) November 30,
1999, unless further extended in accordance with Section 2.09, and (b) the date
on which all amounts outstanding under this Agreement have been declared or
have automatically become due and payable pursuant to the provisions of Article
IX.
"First American National Bank Adjusted Pro Rata Share" shall
equal the quotient of the following formula:
(First American National Bank's Pro Rata Share of
the outstanding principal amount under the
Facilities + the outstanding principal amount
under the First American National Bank
Letter of Credit Facility
-------------------------------------------------
(Total Outstanding Principal)
"First American National Bank Letter of Credit Facility" shall
mean that certain letter of credit facility evidenced by the Amended and
Restated Revolving Credit Note executed July 15, 1992 by Xxxxxx to the order of
First American National Bank.
"First National Bank of Louisville Adjusted Pro Rata Share" shall
equal the quotient of the following formula:
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(First National Bank of Louisville's Pro Rata
Share of the outstanding principal amount under
the Facilities + the outstanding principal amount
under the First National Bank of Louisville
Letter of Credit Facility
-------------------------------------------------
(Total Outstanding Principal)
"First National Bank of Louisville Letter of Credit Facility"
shall mean that certain $6,000,000 commercial letter of credit facility
pursuant to which First National Bank of Louisville issues commercial trade
letters of credit for the account of Xxxxxx, which facility shall mature
September 30, 1993.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of
any fiscal period of Xxxxxx, the ratio of (a) the sum of Consolidated Net
Income plus, to the extent subtracted in determining such Consolidated Net
Income, depreciation and amortization expense to (b) the sum of (i) cash
dividends paid, (ii) capital expenditures, and (iii) principal payments due in
the following twelve (12) months, in each case determined on a consolidated
basis in accordance with GAAP. In computing the amount of capital expenditures
for purposes of this definition, the amount of capital expenditures relating to
the indebtedness evidenced and/or secured by (A) that certain Promissory Note
in the original principal amount of $5,000,000 executed March 31, 1992 by
Xxxxxx to the order of TNB, (B) that certain Construction Loan Agreement
executed March 31, 1992 by and between Xxxxxx and TNB, and (C) that certain
Tennessee Deed of Trust, Assignment of Rents and Fixture Filing executed by
Xxxxxx for the benefit of TNB, of record in Book 8589, page 428, Register's
Office for Davidson County, Tennessee, shall be excluded.
"Funded Debt" shall mean all Indebtedness for money borrowed,
Indebtedness evidenced or secured by purchase money Liens, capitalized leases,
conditional sales contracts and similar title retention debt instruments,
including any current maturities of such Indebtedness that by its terms matures
more than one year from the date of any calculation thereof and/or that is
renewable or extendable at the option of the obligor to a date beyond one (1)
year from such date of calculation. The calculation of Funded Debt shall
include all Funded Debt of the Consolidated Companies, plus all Funded Debt of
other Persons to the extent guaranteed by a Consolidated Company, to the extent
supported by a letter of credit issued for the account of a Consolidated
Company, or as to which and to the extent which a Consolidated Company or its
assets otherwise have become liable for payment thereof.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such
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other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination.
"Guarantors" shall mean, collectively, all of Xxxxxx'x
Subsidiaries, including without limitation, Word, Incorporated (upon its
acquisition by Xxxxxx), and their respective successors and permitted assigns,
but excluding those Subsidiaries of Xxxxxx set forth on Schedule 0X.00.
"Xxxxxxxx" shall mean any contractual obligation, contingent or
otherwise, of a Person with respect to any Indebtedness or other obligation or
liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including Contractual Obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income or other financial condition or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation in respect of which guaranty is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Guaranty Agreement" shall mean, collectively, the joint and
several Guaranty Agreement executed by each of the Guarantors in favor of the
Lenders and the Agent, substantially in the form of Exhibit E attached hereto,
as the same may be amended, restated or supplemented from time to time.
"Hazardous Substance" shall have the meaning assigned to that
term in the Comprehensive Environmental Response Compensation and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Acts of
1986.
"Indebtedness" of any Person shall mean, without duplication (a)
all obligations of such Person that in accordance with GAAP would be shown on
the balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (b) all rental obligations under leases required to be
capitalized under GAAP; (c) all Guaranties of such Person (including contingent
reimbursement obligations under
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undrawn letters of credit); (d) Indebtedness of others secured by any Lien upon
property owned by such Person, whether or not assumed; and (e) obligations or
other liabilities under currency contracts, interest rate hedging contracts or
similar agreements or combinations thereof.
"Indemnitee" shall have the meaning ascribed to it in Section
11.04(c).
"Interest Coverage Ratio" shall mean, as of the end of any fiscal
period of Xxxxxx, the ratio of (a) Consolidated EBIT to (b) the sum of
Consolidated Interest Expense.
"Interest Period" shall have the meaning set forth in Section
4.04.
"Inventory" shall mean all of Xxxxxx'x inventory, raw materials,
work in process, finished goods, parts, goods of Xxxxxx held on consignment,
returned goods or inventory, goods held for sale or lease or furnished or to be
furnished under contracts of service in which Xxxxxx now has or hereafter
acquires any right and all additions, substitutions and replacements thereof
wherever located together with all goods and materials used or usable in
manufacturing, processing, packaging or shipping the Inventory.
"Investment" shall mean, when used with respect to any Person,
any direct or indirect advance (excluding advances made to authors or artists
in the ordinary course of business), loan or other extension of credit (other
than the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person.
"IRS" shall have the meaning ascribed in Section 7A.07(j)(iv).
"Lender" or "Lenders" shall mean TNB, the other banks and lending
institutions listed on the signature pages hereof and each assignee thereof, if
any, pursuant to Section 11.06(c).
"Lending Office" shall mean for each Lender the office such
Lender may designate in writing from time to time to Xxxxxx and the Agent with
respect to each Type of Loan.
"Leverage Ratio" shall mean the ratio, expressed as a percentage,
of Senior Funded Debt to Total Capital for the Consolidated Companies.
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"LIBOR" shall mean, for any Interest Period, the offered rates
for deposits in U.S. Dollars for a period comparable to the Interest Period and
in an amount comparable to the Agent's portion of such Advances determined by
the Agent from Telerate Page 3750 as of 11:00 A.M. (London, England time) on
the day that is two Business Days prior to the first day of the Interest
Period. If two or more of such rates appear on the Telerate Page, the rate for
that Interest Period shall be the arithmetic mean of such rates, rounded, if
necessary, to the next higher 1/16 of 1.0%, if the rate is not such a multiple,
and in either case as such rates may be adjusted for any applicable reserve
requirements. If such rate is unavailable on such service, then such rate shall
be determined by and based on any other interest rate reporting service of
recognized standing designated in writing by the Agent to Xxxxxx and the other
Lenders.
"LIBOR Advance" shall mean any Advance made or outstanding as a
Revolving Loan or a Term Loan, as the case may be, bearing interest at LIBOR.
"Lien" shall mean any mortgage, pledge, security interest, lien,
charge, hypothecation, assignment, deposit arrangement, title retention,
preferential property right, trust or other arrangement having the practical
effect of the foregoing and shall include the interest of a vendor or lessor
under any conditional sale agreement, capitalized lease or other title
retention agreement.
"Loans" shall mean, collectively, the Revolving Loans and the
Term Loans.
"Margin Regulations" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time.
"Materially Adverse Effect" shall mean any materially adverse
change in (a) the business, results of operations, financial condition, assets
or prospects of the Consolidated Companies, taken as a whole, (b) the ability
of Xxxxxx to perform its obligations under this Agreement, or (c) the ability
of the other Credit Parties (taken as a whole) to perform their respective
obligations under the Credit Documents.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NationsBank of Texas, N.A. Adjusted Pro Rata Share" shall equal
the quotient of the following formula:
(NationsBank of Texas, N.A.'s Pro Rata Share of
the outstanding principal amount under the Facilities
-----------------------------------------------------
(Total Outstanding Principal)
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"Xxxxxx" shall mean Xxxxxx Xxxxxx, Inc., a Tennessee corporation,
its successors and permitted assigns.
"Net Proceeds" shall mean, with respect to any Asset Sale, all
cash, including (a) cash receivables (when received) by way of deferred payment
pursuant to a promissory note, a receivable or otherwise (other than interest
payable thereon), and (b) with respect to Asset Sales resulting from the loss,
damage, destruction or taking of property, the proceeds of insurance
settlements and condemnation awards (other than the portion of the proceeds of
such settlements and such awards that are used to repair, replace, improve or
restore the item of property in respect of which such settlement or award was
paid provided that the recipient of such proceeds enters into a binding
contractual obligation to effect such repair, replacement, improvement or
restoration within six (6) months of such loss, damage or destruction and
completes such repair, replacement, improvement or restoration within twelve
(12) months of such loss, damage, destruction or taking) as and when received
in cash, in either case, received by any Consolidated Company as a result of or
in connection with such transaction, net of reasonable sale expenses, fees and
commissions incurred, and taxes paid or expected to be payable within the
succeeding 12-month period in connection therewith, and net of any payment
required to be made with respect to the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) secured by a Lien (to the extent permitted by Section 8.02) upon the
asset sold in such Asset Sale.
"Notes" shall mean, collectively, the Revolving Credit Notes and
the Term Notes.
"Notice of Borrowing" shall have the meaning ascribed to it in
Section 4.01(a).
"Notice of Change" shall have the meaning ascribed to it in
Article VIIB.
"Notice of Conversion/Continuation" shall have the meaning
ascribed to it in Section 4.01(b).
"Notice of Extension" shall have the meaning ascribed to it in
Section 2.09.
"Notice Period" shall have the meaning ascribed to it in Article
VB.
"Obligations" shall mean all amounts owing to the Agent or any
Lender pursuant to the terms of this Agreement or any other Credit Document,
including without limitation, all Loans (including all principal and interest
payments due thereunder), fees, expenses, indemnification and reimbursement
payments, indebtedness, liabilities, and obligations of the Credit Parties,
direct or
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indirect, absolute or contingent, liquidated or unliquidated, now existing or
hereafter arising, together with all renewals, extensions, modifications or
refinancings thereof.
"Payment Office" shall mean, at any time for any Lender, the
Payment Office set forth opposite such Lender's name on the signature pages
hereof, as the same may be amended pursuant to Section 11.02.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, trust or other entity, or any
government or political subdivision or agency, department or instrumentality
thereof.
"Plan" shall mean any "employee benefit plan" (as defined in
Section 3(3) of ERISA), including, but not limited to, any defined benefit
pension plan, profit sharing plan, money purchase pension plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan, Multiemployer
Plan, or any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits.
"Prescribed Forms" shall mean such duly executed forms or
statements, and in such number of copies, which may, from time to time, be
prescribed by law and which, pursuant to applicable provisions of (a) an income
tax treaty between the United States and the country of residence of the Lender
providing the form or statement, (b) the Tax Code, or (c) any applicable rule
or regulation under the Tax Code, permit Xxxxxx to make payments hereunder for
the account of such Lender free, or subject to a reduced rate, of deduction or
withholding of income or similar taxes.
"Pro Rata Share" shall mean, with respect to each of the
Revolving Loan Commitments of each Lender and each Loan to be made by and each
payment (including, without limitation, any payment of principal, interest or
fees) to be made to each Lender, the percentage designated as such Lender's Pro
Rata Share of such Revolving Loan Commitments, such Loans or such payments, as
applicable, set forth under the name of such Lender on the respective signature
page for such Lender, in each case as such Pro Rata Share may change from time
to time as a result of assignments or amendments made pursuant to this
Agreement.
"Refinanced Indebtedness" shall mean the Indebtedness of the
Consolidated Companies to be paid on the Closing Date with the proceeds of the
initial Borrowings under the Revolving Loan Commitments as more particularly
described on Schedule 6A.18.
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"Required Lenders" shall mean at any time prior to the Conversion
Date, Lenders holding at least sixty-six and two-thirds percent (66-2/3%) of
the then aggregate amount of the Revolving Loan Commitments or, following the
Conversion Date, Lenders holding at least sixty-six and two-thirds percent
(66-2/3%) of the aggregate outstanding Term Loans.
"Requirement of Law" for any person shall mean the articles or
certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other 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.
"Revolving Credit Notes" shall mean, collectively, the promissory
notes evidencing the Revolving Loans in the form attached hereto as Exhibit G.
"Revolving Loan Commitment" shall mean, at any time for any
Lender, the amount of the Revolving Loan Commitment set forth opposite such
Lender's name on the signature pages hereof, as the same may be increased or
decreased from time to time as a result of any reduction thereof pursuant to
Sections 2.07 or 2.08, any assignment thereof pursuant to Section 11.06, or any
amendment thereof pursuant to Section 11.02.
"Revolving Loans" shall mean, collectively, the revolving credit
loans made to Xxxxxx by the Lenders pursuant to Section 2.02.
"Security Documents" shall mean, collectively, the Guaranty
Agreement, the Word, Incorporated Pledge Agreement and each other guaranty
agreement, mortgage, deed of trust, security agreement, pledge agreement or
other security or collateral document guaranteeing or securing the Obligations,
as the same may be amended, restated or supplemented from time to time.
"Senior Funded Debt" shall mean all Funded Debt minus the
Subordinated Debt.
"Shareholders' Equity" shall mean, with respect to any Person as
at any date of determination, shareholders' equity of such Person determined in
accordance with GAAP.
"Subordinated Debt" shall mean other Indebtedness of Xxxxxx
subordinated to all obligations of Xxxxxx or any other Credit Party arising
under this Agreement, the Notes, the Guaranty Agreement and all other Credit
Documents on terms and conditions satisfactory in all respects to the Agent and
the Required Lenders, including without limitation, with respect to interest
rates, payment terms, maturities, amortization schedules, covenants, defaults,
remedies
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and subordination provisions, as evidenced by the written approval of the Agent
and Required Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all
classes of voting stock or other ownership interests of which shall, at the
time as of which any determination is being made, be owned by such Person,
either directly or indirectly through one or more other Subsidiaries.
"Take-Out" shall have the meaning ascribed to it in Section 2.06.
"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies, imposts,
duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security and
franchise taxes now or hereafter imposed or levied by the United States, or any
state, local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and all interest,
penalties, additions to tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Dow Xxxxx
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"Term Loans" shall mean, collectively, the term loans that may,
subject to the terms and conditions hereof, repay all amounts outstanding
pursuant to the Revolving Loan Commitments on the Conversion Date pursuant to
Section 3.01.
"Term Notes" shall mean, collectively, the promissory notes
evidencing the Term Loans in the form attached hereto as Exhibit H.
"TNB" shall mean Third National Bank in Nashville, a national
banking association.
"TNB Five Million Dollar Revolving Credit Facility" shall have
the meaning ascribed to it in Section 8.01(g).
"TNB Letter of Credit Facility" shall mean that certain
$4,000,000 commercial letter of credit facility pursuant to which
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TNB issues commercial trade letters of credit for the account of Xxxxxx, which
facility shall mature September 30, 1993.
"TNB Adjusted Pro Rata Share" shall equal the quotient of the
following formula:
(TNB's Pro Rata Share of the outstanding principal
amount under the Facilities + the outstanding
principal amount under the TNB Five Million Dollar
Revolving Credit Facility + the outstanding
principal amount under the TNB Letter of Credit Facility
--------------------------------------------------------
(Total Outstanding Principal)
"Total Capital" shall mean the sum of Funded Debt and
Consolidated Net Worth of the Consolidated Companies.
"Total Commitment" shall mean, for any Lender at any time prior
to the Conversion Date, such Lender's Revolving Loan Commitment and at any time
following the Conversion Date, the outstanding amount of such Lender's Term
Loan, and "Total Commitments" shall mean, for all Lenders at any time, the sum
of the Total Commitment of all Lenders.
"Total Outstanding Principal" shall mean the outstanding
principal amount under the Facilities, plus the outstanding principal amount
under the TNB Five Million Dollar Revolving Credit Facility, plus the
outstanding principal amount under the TNB Letter of Credit Facility, plus the
outstanding principal amount under the First American National Bank Letter of
Credit Facility, plus the outstanding principal amount under the First National
Bank of Louisville Letter of Credit Facility.
"Type" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances or LIBOR Advances.
"Word, Incorporated Corrections" shall have the meaning ascribed
to it in Article VIB.
"Word, Incorporated Information" shall have the meaning ascribed
to it in Article VB.
"Word, Incorporated Pledge Agreement" shall mean that certain
Pledge Agreement executed in favor of the Agent, substantially in the form of
Exhibit L attached hereto, providing for the grant of a first-priority Lien on
all outstanding common stock of Word, Incorporated, as the same may be amended,
restated or supplemented from time to time.
"Working Capital" shall mean, as of the date of any determination
for the Consolidated Companies, (a) current assets of the Consolidated
Companies, minus (b) current liabilities of the Consolidated Companies
(excluding the current portion of Funded
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Debt), in each case as determined on a consolidated basis in accordance with
GAAP.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms shall be construed
herein, all accounting determinations hereunder shall be made, all financial
statements required to be delivered hereunder shall be prepared, and all
financial records shall be maintained in accordance with GAAP; provided,
however, that compliance with the financial covenants and calculations set
forth in Section 7A.08, Article VIII and elsewhere herein, and in the
definitions used in such covenants and calculations, shall be calculated, made
and applied in accordance with GAAP as in effect on the date of this Agreement
applied on a basis consistent with the preparation of the financial statements
referred to in Section 6A.14 unless and until Xxxxxx and the Required Lenders
enter into an agreement with respect thereto in accordance with Section 11.13.
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and the words Article, Section, Schedule, Exhibit
and like references are to this Agreement unless otherwise specified.
SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and Schedules
attached hereto are by reference made a part hereof.
ARTICLE II.
REVOLVING LOANS
SECTION 2.01. Intentionally Omitted.
SECTION 2.02. REVOLVING LOAN COMMITMENT. (a) Subject to and upon
the terms and conditions herein set forth, each Lender severally agrees to make
to Xxxxxx from time to time on and after the Closing Date, but prior to the
Conversion Date, Revolving Loans in an aggregate amount outstanding at any time
not to exceed such Lender's Revolving Loan Commitment. Xxxxxx shall be entitled
to repay and reborrow Revolving Loans in accordance with the provisions hereof.
(b) Each Revolving Loan shall, at the option of Xxxxxx, be
made, continued as or converted into part of one or more Borrowings that shall
consist entirely of Base Rate Advances and LIBOR Advances. Each Borrowing of
Revolving Loans comprised of LIBOR Advances shall not be less than $5,000,000
or a greater integral multiple of $500,000, and each Borrowing of Revolving
Loans comprised of Base Rate Advances shall be not less than
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$250,000 or a greater integral multiple of $100,000. At no time shall the
number of Borrowings outstanding under this Article II of LIBOR Advances exceed
eight (8).
SECTION 2.03. USE OF PROCEEDS. The proceeds of the Revolving
Loans shall be used solely for the following purposes:
(a) Approximately $24,000,000 shall be used
initially to repay Refinanced Indebtedness of the Consolidated
Companies on the Closing Date; and
(b) Approximately $22,000,000 shall be used
initially to acquire all of the outstanding common stock of Word,
Incorporated, including the cost of such common stock and any and
all acquisition costs associated therewith, including attorneys'
fees and expenses.
(c) All other amounts shall be used as working
capital and for other general corporate purposes, including
acquisitions and capital expenditures of the Consolidated
Companies.
SECTION 2.04. Intentionally Omitted.
SECTION 2.05. REVOLVING CREDIT NOTES: REPAYMENT OF PRINCIPAL. (a)
Xxxxxx'x obligations to pay the principal of and interest on the Revolving
Loans to each Lender shall be evidenced by the records of the Agent and such
Lender and by the Revolving Credit Note payable to such Lender (or the assignor
of such Lender) completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Revolving
Loans shall be due and payable in full on the Conversion Date, subject to the
provisions of Section 3.01.
SECTION 2.06. Intentionally Omitted.
SECTION 2.07. VOLUNTARY REDUCTION OF REVOLVING LOAN COMMITMENTS.
Subject to Section 2.06 upon at least three (3) Business Days prior telephonic
notice (promptly confirmed in writing) to the Agent, Xxxxxx shall have the
right, without premium or penalty, to terminate the Revolving Loan Commitments,
in part or in whole, provided that (a) any such termination shall apply to
proportionately and permanently reduce the Revolving Loan Commitments of each
of the Lenders, (b) any prepayment of LIBOR Advances must be in minimum
principal amounts of $5,000,000 and in multiples of $500,000, and any
prepayment of Base Rate Advances must be in minimum principal amounts of
$250,000 and in multiples of $100,000, and (c) no such reduction shall be
permitted that would require a prepayment that is not permitted by Section
4.06. If the aggregate outstanding amount of the Revolving Loans exceeds the
amount of the Revolving Loan Commitments as so reduced, Xxxxxx
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shall immediately repay the Revolving Loans by an amount equal to such excess,
together with all accrued but unpaid interest on such excess amount and any
amounts due under Section 4.12 hereof.
SECTION 2.08. MANDATORY REDUCTION OF REVOLVING LOAN COMMITMENTS.
Subject to Section 2.06, no mandatory reduction shall be required pursuant to
this Section 2.08 until the aggregate amount of Asset Sales (based on the Asset
Values thereof but excluding Asset Sales resulting from loss, damage,
destruction or taking where the proceeds thereof are utilized so as to be
excluded from the definition of Net Proceeds) occurring after November 30,
1992, exceeds $2,500,000. Within ten (10) Business Days after each date on or
prior to the Conversion Date on which any Consolidated Company receives any Net
Proceeds as a result of or in connection with an Asset Sale by any Consolidated
Company, the Revolving Loan Commitments shall be permanently and ratably
reduced by an amount equal to one hundred percent (100%) of such Net Proceeds
plus interest accrued and unpaid on the amount of such prepayment. Any such
reduction of the Revolving Loan Commitments shall apply as a proportional and
permanent reduction of the Revolving Loan Commitments of each of the Lenders.
If the aggregate outstanding amount of the Revolving Loans exceeds the amount
of the Revolving Loan Commitments as so reduced, Xxxxxx shall immediately repay
the Revolving Loans by an amount equal to such excess. Nothing in this Section
2.08 shall be deemed to authorize any Asset Sale not permitted by Section 8.03.
Each mandatory prepayment of Revolving Loans pursuant to this Section 2.08
shall be applied first to Base Rate Advances to the full extent thereof before
application to LIBOR Advances; provided, however, that, so long as no Default
or Event of Default has occurred and is continuing, in lieu of application of
such prepayment to LIBOR Advances prior to the expiration of the respective
Interest Periods with respect thereto, Xxxxxx, at its option, may execute an
Escrow Letter with respect to such prepayment and deposit with the Agent funds
equal to the amount of such prepayment for application in accordance with the
terms of such Escrow Letter.
SECTION 2.09. EXTENSION OF CONVERSION DATE AND FINAL MATURITY
DATE. (a) As long as no Default or Event of Default has occurred and is
continuing, Xxxxxx shall have the right to notify Agent in writing at its
Payment Office at least sixty (60) Business Days prior to the Conversion Date
of Xxxxxx'x desire to extend the Conversion Date for a one (1) year period (a
"Notice of Extension"). Each Notice of Extension shall request an extension to
the Conversion Date of a one (1) year period, no more, no less, provided,
however, Xxxxxx may, but shall not be obligated to, submit an unlimited number
of Notices of Extensions to Agent prior to the Conversion Date provided such
Notices of Extension comply with this Section 2.09.
(b) The Agent shall promptly give each Lender notice in
writing of its receipt of any Notice of Extension. Within twenty
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(20) Business Days of Agent's receipt of the Notice of Extension, Agent shall
notify Xxxxxx in writing of the Lenders' acceptance or rejection of such Notice
of Extension. The Notice of Extension shall only be accepted upon Agent's
receipt from one hundred percent (100%) of the Lenders of their approval of the
Notice of Extension. The Lenders' determination shall be final, conclusive and
binding upon all parties hereto.
(c) Once Xxxxxx'x Notice of Extension has been agreed to and
accepted by one hundred percent (100%) of the Lenders and the Agent has advised
Xxxxxx of such determination in accordance with Section 2.09(b), such Notice of
Conversion shall be irrevocable.
(d) In the event there is a one (1) year extension in the
Conversion Date pursuant to the terms of this Section 2.09, there shall be a
corresponding one (1) year extension to the Final Maturity Date automatically
without further amendment to this Agreement, provided the Obligations are
unsecured.
(e) The Agent's and Lenders' review of any Notice of
Extension shall in no way obligate the Lenders to agree to extend the
Conversion Date in accordance with such Notice of Extension. The acceptance of
any one (1) Notice of Extension by the Lenders shall in no way obligate the
Lenders to agree to or accept any future Notices of Extensions received by
Agent from Xxxxxx.
ARTICLE III
CONVERSION OF REVOLVING CREDIT LOANS TO TERM LOANS
SECTION 3.01. TERM LOANS. (a) Subject to and upon the terms and
conditions herein set forth, on the Conversion Date, provided that there exists
no Default or Event of Default, Xxxxxx may satisfy its obligation to repay the
principal amount of the then outstanding Revolving Loans by executing and
delivering to each of the Lenders a Term Note in accordance with the provisions
of Section 3.01(b).
(b) Each Term Note shall be dated the Conversion Date and
shall be payable to the applicable Lender in a principal amount equal to such
Lender's Revolving Loans outstanding on the Conversion Date.
SECTION 3.02. REPAYMENT OF PRINCIPAL. Xxxxxx shall repay the Term
Loans in fifteen (15) consecutive equal quarterly installments beginning May
31, 1996. All Term Loans, if not sooner paid, shall be due and payable in full
on the Final Maturity Date.
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SECTION 3.03. MANDATORY PREPAYMENTS. Subject to Section 2.06, no
mandatory prepayment shall be required pursuant to this Section 3.03 until the
aggregate amount of Asset Sales (based on the Asset Values thereof but
excluding Asset Sales resulting from loss, damage, destruction or taking where
the proceeds thereof are utilized so as to be excluded from the definition of
Net Proceeds) occurring after November 30, 1992 exceeds $2,500,000. Within ten
(10) Business Days after each date after the Conversion Date on which any
Consolidated Company receives any Net Proceeds as a result of or in connection
with an Asset Sale by any Consolidated Company, the Term Loans outstanding
under Section 3.01 shall be proportionately prepaid by an amount equal to one
hundred percent (100%) of such Net Proceeds. All such prepayments under this
Section 3.03 shall be applied in each case against all remaining scheduled
amortization payments in inverse order of maturity. Nothing in this Section
3.03 shall be deemed to authorize any Asset Sale not permitted by Section 8.03
of this Agreement. Each mandatory prepayment of Term Loans pursuant to this
Section 3.03 shall be applied first to Base Rate Advances to the full extent
thereof before application to LIBOR Advances; provided, however, that, so long
as no Default or Event of Default has occurred and is continuing, in lieu of
application of such prepayment to LIBOR Advances prior to the expiration of the
respective Interest Periods with respect thereto, Xxxxxx, at its option, may
execute an Escrow Letter with respect to such prepayments and deposit with the
Agent funds equal to such prepayments for application in accordance with the
terms of such Escrow Letter.
ARTICLE IV.
GENERAL LOAN TERMS
SECTION 4.01. FUNDING NOTICES. (a) Whenever Xxxxxx desires to
make a Borrowing with respect to the Revolving Loan Commitments (other than one
resulting from a conversion or continuation pursuant to Section 4.01(b)), it
shall give the Agent prior written notice (or telephonic notice promptly
confirmed in writing) of such Borrowing (a "Notice of Borrowing"), such Notice
of Borrowing to be given prior to 11:00 A.M. (local time for the Agent) at its
Payment Office (i) one (1) Business Day prior to the requested date of such
Borrowing in the case of Base Rate Advances, and (ii) two (2) Business Days
prior to the requested date of such Borrowing in the case of LIBOR Advances.
Notices received after 11:00 A.M. shall be deemed received on the next Business
Day. Each Notice of Borrowing shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing, the date of Borrowing (which shall
be a Business Day), and whether the Borrowing is to consist of Base Rate
Advances or LIBOR Advances.
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(b) Whenever Xxxxxx desires to convert all or a portion of an
outstanding Borrowing under the Revolving Credit Commitments or a portion of
the Term Loans, which Borrowing consists of Base Rate Advances or LIBOR
Advances, into one or more Borrowings consisting of Advances of another Type,
or to continue outstanding a Borrowing consisting of LIBOR Advances for a new
Interest Period, it shall give the Agent at least one (1) Business Day's prior
written notice (or telephonic notice promptly confirmed in writing) of each
such Borrowing being converted into or continued as Base Rate Advances, and at
least two (2) Business Days prior written notice (or telephonic notice promptly
confirmed in writing) of each such Borrowing to be converted into or continued
as LIBOR Advances. Such notice (a "Notice of Conversion/Continuation") shall be
given prior to 11:00 A.M (local time for the Agent) on the date specified at
the Payment Office of the Agent. Each such Notice of Conversion/Continuation
shall be irrevocable and shall specify the aggregate principal amount of the
Advances to be converted or continued, the date of such conversion or
continuation, whether the Advances are being converted into or continued as
Base Rate Advances or LIBOR Advances and (in the case of LIBOR Advances) the
Interest Period applicable thereto. If, upon the expiration of any Interest
Period in respect of any Borrowing, Xxxxxx shall have failed to deliver the
Notice of Conversion/Continuation, Xxxxxx shall be deemed to have elected to
convert or continue such Borrowing to a Borrowing consisting of Base Rate
Advances. So long as any Executive Officer of Xxxxxx has knowledge that any
Default or Event of Default shall have occurred and be continuing, no Borrowing
may be converted into or continued as (upon expiration of the current Interest
Period) LIBOR Advances unless the Agent and each of the Lenders shall have
otherwise consented in writing. No conversion of any Borrowing of LIBOR
Advances shall be permitted except on the last day of the Interest Period in
respect thereof.
(c) Without in any way limiting Xxxxxx'x obligation to
confirm in writing any telephonic notice, the Agent may act without liability
upon the basis of telephonic notice believed by the Agent in good faith to be
from Xxxxxx prior to receipt of written confirmation. In each such case, Xxxxxx
hereby waives the right to dispute the Agent's record of the terms of such
telephonic notice.
(d) The Agent shall promptly give each Lender notice by
telephone (confirmed in writing) or by telex, telecopy or facsimile
transmission of the matters covered by the notices given to the Agent pursuant
to this Section 4.01 with respect to the Revolving Credit Commitments and the
Term Loans.
SECTION 4.02. DISBURSEMENT OF FUNDS. (a) No later than noon
(local time for the Agent) on the date of each Borrowing pursuant to the
Revolving Loan Commitments (other than one resulting from a conversion or
continuation pursuant to Section 4.01(b)), each Lender will make available its
Pro Rata Share of the amount of such Borrowing in immediately available funds
at the Payment Office of
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the Agent. The Agent will make available to Xxxxxx the aggregate of the amounts
(if any) so made available by the Lenders to the Agent in a timely manner by
crediting such amounts to Xxxxxx'x demand deposit account maintained with the
Agent or at Xxxxxx'x option, to effect a wire transfer of such amounts to
Xxxxxx'x account specified by an authorized representative of Xxxxxx by the
close of business on such Business Day.
(b) Unless the Agent shall have been notified by any Lender
prior to the date of a Borrowing that such Lender does not intend to make
available to the Agent such Lender's portion of the Borrowing to be made on
such date, the Agent may assume that such Lender will make such amount
available to the Agent on such date and the Agent may make available to Xxxxxx
a corresponding amount. If such corresponding amount is not in fact made
available to the Agent by such Lender on the date of Borrowing, the Agent shall
be entitled to recover such corresponding amount on demand from such Lender
together with interest at the Federal Funds Rate. If such Lender does not pay
such corresponding amount forthwith upon the Agent's demand therefor, the Agent
shall promptly notify Xxxxxx, and Xxxxxx shall immediately pay such
corresponding amount to the Agent together with interest at the rate specified
for the Borrowing which includes such amount paid and any amounts due under
Section 4.12 hereof. Nothing in this Section 4.02(b) shall be deemed to relieve
any Lender from its obligation to fund its Total Commitments hereunder or to
prejudice any rights that Xxxxxx may have against any Lender as a result of any
default by such Lender hereunder.
(c) All Borrowings under the Revolving Loan Commitments shall
be loaned by the Lenders on the basis of their Pro Rata Share of the Revolving
Loan Commitments. No Lender shall be responsible for any default by any other
Lender in its obligations hereunder, and each Lender shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the failure of any
other Lender to fund its Total Commitments hereunder.
SECTION 4.03. INTEREST. (a) Xxxxxx agrees to pay interest in
respect of all unpaid principal amounts of the Revolving Loans and Term Loans
from the respective dates such principal amounts were advanced to maturity
(whether by acceleration, notice of prepayment or otherwise) at rates per annum
equal to the applicable rates indicated below:
(i) For Base Rate Advances -- The Base Rate plus
the Applicable Base Rate Margin;
(ii) For LIBOR Advances -- LIBOR plus the Applicable
LIBOR Rate Margin.
(b) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Revolving
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Loans, Term Loans and all other overdue amounts owing hereunder shall bear
interest from each date that such amounts are overdue at a rate equal to the
higher of (i) the Base Rate plus an additional two percent (2.0%) per annum, or
(ii) the interest rate otherwise applicable to such amount plus two percent
(2.0%) per annum.
(c) Interest on each Loan shall accrue from and including
the date of such Loan to but excluding the date of any repayment thereof;
provided that, if a Loan is repaid on the same day made, one day's interest
shall be paid on such Loan. Interest on all outstanding Base Rate Advances
shall be payable monthly in arrears on the last calendar day of each calendar
month each year. Interest on all outstanding LIBOR Advances shall be payable on
the last day of each Interest Period applicable thereto, and, in the case of
LIBOR Advances having an Interest Period in excess of three (3) months, on each
day that occurs every three (3) months after the initial date of such Interest
Period. Interest on all Loans shall be payable on any conversion of any
Advances comprising such Loans into Advances of another Type, prepayment (on
the amount prepaid), at maturity (whether by acceleration, notice of prepayment
or otherwise) and, after maturity, on demand.
SECTION 4.04. INTEREST PERIODS. In connection with the making or
continuation of, or conversion into, each Borrowing of LIBOR Advances, Xxxxxx
shall select an interest period (each an "Interest Period") to be applicable to
such LIBOR Advances, which Interest Period shall be either a one (1), two (2),
three (3) or six (6) month period; provided that:
(a) The initial Interest Period for any Borrowing of
LIBOR Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting
of Advances of another Type) and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period expires;
(b) If any Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day, provided that if any
Interest Period in respect of LIBOR Advances would otherwise
expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business
Day;
(c) Any Interest Period in respect of LIBOR Advances
that begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period shall, subject to Section 4.04(d), expire on the
last Business Day of such calendar month;
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(d) No Interest Period shall extend beyond any date upon
which any principal payment is due with respect to the Term
Loans, unless the aggregate principal amount of Term Loans that
are Base Rate Advances, or that have Interest Periods that will
expire on or before the date of the respective payment or
prepayment, is equal to or in excess of the amount of any
principal payment to be made;
(e) No Interest Period with respect to the Loans shall
extend beyond the Conversion Date or the Final Maturity Date.
SECTION 4.05. FEES. (a) Xxxxxx shall pay to the Agent, for the
account of and distribution of the respective Pro Rata Share to each Lender, a
facility fee equal to (i) .25% of the commitment amount of the Facilities
accepted by Xxxxxx (the "Accepted Commitment"), which fee shall be deemed to
have been earned at the time of such acceptance, and (ii) .25% of the
commitment amount of the Facilities closed on the Closing Date in accordance
with the terms of this Agreement (collectively, the "Facility Fee"). The
Facility Fee shall be paid upon the earlier to occur of (A) the Closing Date,
or (B) cancellation of the Accepted Commitment.
(b) Intentionally Omitted.
(c) Xxxxxx shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share to each Lender, a commitment fee
for the period commencing on the Closing Date and continuing up to but
excluding the Conversion Date, computed at a rate equal to one-half of one
percent (0.50%) per annum on the average daily unused portion of the Revolving
Loan Commitments of such Lenders, computed quarterly, such fee being payable
quarterly in arrears on the last calendar day of each fiscal quarter of Xxxxxx
and on the Conversion Date.
(d) Xxxxxx shall pay to the Agent an annual administrative
fee in an amount equal to .05% per annum of the amount committed under the
Loans, payable quarterly in advance on the Closing Date and on the first day of
each quarter thereafter as long as any of the Obligations remain outstanding.
SECTION 4.06. VOLUNTARY PREPAYMENTS OF BORROWINGS. (a) Xxxxxx
may, at its option, prepay Borrowings consisting of Base Rate Advances at any
time in whole, or from time to time in part, in amounts aggregating $250,000 or
any greater integral multiple of $100,000, by paying the principal amount to be
prepaid together with interest accrued and unpaid thereon to the date of
prepayment. Those Borrowings consisting of LIBOR Advances may be prepaid, at
Xxxxxx'x option, in whole, or from time to time in part, in amounts aggregating
$2,500,000 or any greater integral multiple of $500,000, by paying the
principal amount to be prepaid, together with interest accrued and unpaid
thereon to the date of prepayment,
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and all compensation payments pursuant to Section 4.12 if such prepayment is
made on a date other than the last day of an Interest Period applicable
thereto. Each such optional prepayment shall be applied in accordance with
Section 4.06(c).
(b) Xxxxxx shall give written notice (or telephonic notice
confirmed in writing) to the Agent of any intended prepayment of the Revolving
Loans or Term Loans (i) not less than one (1) Business Day prior to any
prepayment of Base Rate Advances, and (ii) not less than two (2) Business Days
prior to any prepayment of LIBOR Advances. Such notice, once given, shall be
irrevocable. Upon receipt of such notice of prepayment pursuant to the first
sentence of this Section 4.06(b), the Agent shall promptly notify each Lender
of the contents of such notice and of such Lender's share of such prepayment.
(c) Xxxxxx, when providing notice of prepayment pursuant to
Section 4.06(b), may designate the Types of Advances and the specific Borrowing
or Borrowings that are to be prepaid, provided that (i) if any prepayment of
LIBOR Advances made pursuant to a single Borrowing of the Revolving Loans or
Term Loans shall reduce the outstanding Advances made pursuant to such
Borrowing to an amount less than $2,500,000, such Borrowing shall immediately
be converted into Base Rate Advances; and (ii) each prepayment made pursuant to
a single Borrowing shall be applied pro rata among the Loans comprising such
Borrowing. In the absence of a designation by Xxxxxx, the Agent shall, subject
to the foregoing, make such designation in its sole discretion. All voluntary
prepayments shall be applied to the payment of interest before application to
principal and shall be applied against scheduled amortization payments in the
inverse order of maturity.
SECTION 4.07. PAYMENTS, ETC. (a) Except as otherwise specifically
provided herein, all payments under this Agreement and the other Credit
Documents shall be made without defense, set-off or counterclaim to the Agent,
for the account of and distribution of the respective Pro Rata Share to each
Lender except in the case of payments made under Section 4.05(d), which shall
be made solely to Agent, not later than 11:00 A.M. (local time for the Agent)
on the date when due and shall be made in Dollars in immediately available
funds at its Payment Office.
(b)(i) All such payments shall be made free and clear of
and without deduction or withholding for any Taxes in respect of
this Agreement, the Notes or other Credit Documents, or any
payments of principal, interest, fees or other amounts payable
hereunder or thereunder (but excluding, except as provided in
Section 4.07(b)(iii) hereof, (A) any Taxes imposed on the overall
net or gross income of the Lenders pursuant to the laws of the
jurisdictions with taxing authority over such Lenders, (B) any
franchise or similar taxes imposed on the Lenders
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pursuant to the laws of the jurisdictions with taxing authority
over such Lenders (other than the state of Tennessee), but only
where such franchise or similar taxes are imposed in lieu of
Taxes on the overall net or gross income of the Lenders, and (C)
any franchise or similar taxes imposed on the Lenders pursuant to
the laws of the state of Tennessee). If any Taxes are so levied
or imposed, Xxxxxx agrees (I) to pay the full amount of such
Taxes, and such additional amounts as may be necessary so that
every net payment of all amounts due hereunder and under the
Notes and other Credit Documents, after withholding or deduction
for or on account of any such Taxes (including additional sums
payable under this Section 4.07), will not be less than the full
amount provided for herein had no such deduction or withholding
been required, (II) to make such withholding or deduction, and
(III) to pay the full amount deducted to the relevant authority
in accordance with applicable law. Xxxxxx will furnish to the
Agent and each Lender, within thirty (30) days after the date the
payment of any Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by Xxxxxx. Xxxxxx
will indemnify and hold harmless the Agent and each Lender and
reimburse the Agent and each Lender upon written request for the
amount of any Taxes so levied or imposed and paid by the Agent or
Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or
not such Taxes were correctly or illegally asserted. A
certificate as to the amount of such payment by such Lender or
the Agent, absent manifest error, shall be final, conclusive and
binding for all purposes.
(ii) Notwithstanding Section 4.07(b)(i), Xxxxxx
shall be entitled, to the extent it is required to do so by law,
to deduct or withhold income or other similar Taxes imposed by
the United States of America from interest, fees or other amounts
payable hereunder for the account of any Lender other than a
Lender who (A) is a domestic corporation (as such term is defined
in Section 7701 of the Tax Code) for federal income tax purposes,
or (B) has the Prescribed Forms on file with Xxxxxx for the
applicable year to the extent deduction or withholding of such
Taxes is not required as a result of the filing of such
Prescribed Forms, provided that if Xxxxxx shall so deduct or
withhold any such Taxes, it shall provide a statement to the
Agent and such Lender setting forth the amount of such Taxes so
deducted or withheld, the applicable rate and any other
information or documentation that such Lender may reasonably
request for assisting such Lender to obtain any allowable credits
or deductions for the Taxes so deducted or withheld in the
jurisdiction or jurisdictions in which such Lender is subject to
tax.
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(iii) Xxxxxx shall also reimburse the Agent and each
Lender, upon written request, for any Taxes imposed (including,
without limitation, Taxes imposed on the overall gross or net
income of the Agent or such Lender pursuant to the laws of the
jurisdictions with taxing authority over Agent or such Lender) as
the Agent or such Lender shall determine are payable by the Agent
or such Lender in respect of amounts paid by or on behalf of
Xxxxxx to or on behalf of the Agent or such Lender pursuant to
Section 4.07(b)(i).
(c) Subject to Section 4.04(b), whenever any payment to be
made hereunder or under any Note shall be stated to be due on a day that is not
a Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be made on
the basis of a year of three hundred and sixty (360) days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable (to the extent computed on
the basis of days elapsed). Interest on Base Rate Advances shall be calculated
based on the Base Rate from and including the date of such Loan to but
excluding the date of the repayment or conversion thereof. Interest on LIBOR
Advances shall be calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof. Each determination by
the Agent of an interest rate or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding for all
purposes.
(e) Payment by Xxxxxx to the Agent in accordance with the
terms of this Agreement shall, as to Xxxxxx, constitute payment to the Lenders
under this Agreement.
SECTION 4.08. INTEREST RATE NOT ASCERTAINABLE, ETC. In the event
that the Agent, in the case of LIBOR, shall have determined (which
determination shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all parties) that on any date for
determining LIBOR for any Interest Period, by reason of any changes arising
after the date of this Agreement affecting the London interbank market or the
Agent's position in such market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of LIBOR, then, and in any such event, the Agent shall forthwith
give notice (by telephone confirmed in writing) to Xxxxxx and to the Lenders of
such determination and a summary of the basis for such determination. Until the
Agent notifies Xxxxxx that the circumstances giving rise to the notice
described herein no longer exist, the obligations of the Lenders to make or
permit portions of the Revolving Loans or Term Loans to remain outstanding
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past the last day of then current Interest Periods as LIBOR Advances shall be
suspended, and such affected Advances shall bear the same interest as Base Rate
Advances.
SECTION 4.09. ILLEGALITY. (a) In the event that any Lender shall
have determined (which determination shall be made in good faith and, absent
manifest error, shall be final, conclusive and binding upon all parties) at any
time that the making or continuance of any LIBOR Advance has become unlawful by
compliance by such Lender in good faith with any applicable law, governmental
rule, regulation, guideline or order (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful), then, in any
such event, the Lender shall give prompt notice (by telephone confirmed in
writing) to Xxxxxx and to the Agent of such determination and a summary of the
basis for such determination (which notice the Agent shall promptly transmit to
the other Lenders).
(b) Upon the giving of the notice to Xxxxxx referred to in
Section 4.09(a), (i) Xxxxxx'x right to request and such Lender's obligation to
make LIBOR Advances shall be immediately suspended, and such Lender shall make
an Advance as part of the requested Borrowing of LIBOR Advances as a Base Rate
Advance, which Base Rate Advance shall, for all other purposes, be considered
part of such Borrowing, and (ii) if the affected LIBOR Advance or Advances are
then outstanding, Xxxxxx shall immediately, or if permitted by applicable law,
no later than the date permitted thereby, upon at least one Business Days
written notice to the Agent and the affected Lender, convert each such Advance
into a Base Rate Advance or Advances, provided that if more than one Lender is
affected at any time, then all affected Lenders must be treated the same
pursuant to this Section 4.09(b).
SECTION 4.10. INCREASED COSTS. (a) If by reason of (i) after the
date hereof, the introduction of or any change (including, without limitation,
any change by way of imposition or increase of reserve requirements) in or in
the interpretation of any law or regulation, or (ii) the compliance with any
guideline or request from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(A) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with respect to
its LIBOR Advances or its obligation to make LIBOR Advances, or
the basis of taxation of payments to any Lender of the principal
of or interest on its LIBOR Advances or its obligation to make
LIBOR Advances shall have changed (except for changes in the tax
on the overall gross or net income of such Lender imposed by the
jurisdictions with taxing authority over such Lender); or
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(B) any reserve (including, without limitation, any
reserve imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by,
any Lender's applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its LIBOR Advances or
its obligation to make LIBOR Advances shall be imposed on any
Lender or its applicable Lending Office or the London interbank
market;
and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining LIBOR Advances (except to
the extent already included in the determination of LIBOR for LIBOR Advances),
or there shall be a reduction in the amount received or receivable by such
Lender or its applicable Lending office, then Xxxxxx shall from time to time
(subject, in the case of certain Taxes, to the applicable provisions of Section
4.07(b)), upon written notice from and demand by such Lender on Xxxxxx (with a
copy of such notice and demand to the Agent), pay to the Agent for the account
of such Lender within ten (10) days after the date of such notice and demand,
additional amounts sufficient to indemnify such Lender against such increased
cost. A certificate as to the amount of such increased cost, submitted to
Xxxxxx and the Agent by such Lender in good faith and accompanied by a
statement prepared by such Lender describing in reasonable detail the basis for
and calculation of such increased cost, shall, except for manifest error, be
final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time,
because of the circumstances described in Section 4.10(a)(i) or (ii) or any
other circumstances beyond such Lender's reasonable control arising after the
date of this Agreement affecting such Lender or the London interbank market or
such Lender's position in such market, LIBOR as determined by the Agent will
not adequately and fairly reflect the cost to such Lender of funding its LIBOR
Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by
telephone confirmed in writing) to Xxxxxx and to the other
Lenders of such advice;
(ii) Xxxxxx'x right to request and such Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest
Periods as LIBOR Advances shall be immediately suspended; and
(iii) such Lender shall make a Loan as part of the
requested Borrowing of LIBOR Advances as a Base Rate Advance,
which such Base Rate Advance shall, for all other purposes, be
considered part of such Borrowing.
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SECTION 4.11. LENDING OFFICES. Each Lender agrees that, if
requested by Xxxxxx, it will use reasonable efforts (subject to overall policy
considerations of such Lender) to designate an alternate Lending Office with
respect to any of its LIBOR Advances affected by the matters or circumstances
described in Sections 4.07(b), 4.08, 4.09 or 4.10 to reduce the liability of
Xxxxxx or avoid the results provided thereunder, so long as such designation is
not disadvantageous to such Lender as determined by such Lender, which
determination if made in good faith, shall be conclusive and binding on all
parties hereto. Nothing in this Section 4.11 shall affect or postpone any of
the obligations of Xxxxxx or any right of any Lender provided hereunder.
SECTION 4.12. FUNDING LOSSES. Xxxxxx shall compensate each
Lender, upon its written request to Xxxxxx (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive
and binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its LIBOR Advances, in either
case to the extent not recovered by such Lender in connection with the
reemployment of such funds), which the Lender may sustain: (a) if for any
reason (other than a default by such Lender) a borrowing of, or conversion to
or continuation of, LIBOR Advances to Xxxxxx does not occur on the date
specified therefor in a Notice of Borrowing, Notice of Conversion/Continuation
(whether or not withdrawn), (b) if any repayment (including mandatory
prepayments and any conversions pursuant to Section 4.09(b)) of any LIBOR
Advances to Xxxxxx occurs on a date that is not the last day of an Interest
Period applicable thereto, or (c), if, for any reason, Xxxxxx defaults in its
obligation to repay its LIBOR Advances when required by the terms of this
Agreement.
SECTION 4.13. ASSUMPTIONS CONCERNING FUNDING OF LIBOR ADVANCES.
Calculation of all amounts payable to a Lender under this Article IV shall be
made as though that Lender had actually funded its relevant LIBOR Advances
through the purchase of deposits in the relevant market bearing interest at the
rate applicable to such LIBOR Advances in an amount equal to the amount of the
LIBOR Advances and having a maturity comparable to the relevant Interest
Period; provided, however, that each Lender may fund each of its LIBOR Advances
in any manner it sees fit and the foregoing assumption shall be used only for
calculation of amounts payable under this Article IV.
SECTION 4.14. APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans and payments in respect of facility fees
and commitment fees shall be apportioned among all outstanding Total
Commitments and Loans to which such payments relate proportionately to the
Lenders' respective Pro Rata
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Share of such Total Commitments and outstanding Loans. The Agent shall use its
reasonable efforts to distribute promptly to each Lender at its Payment Office
its share of all such payments received by the Agent on the same Business Day
such payments are received by Agent, but not later than the next succeeding
Business Day following receipt by Agent of such payments if such payments are
received by Agent later than 11:00 A.M. (local time for the Agent).
SECTION 4.15. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code) of the Obligations (whether voluntary, involuntary,
through the exercise of any right of set-off or otherwise) in excess of its Pro
Rata Share of payments or reductions of such Obligations obtained by all the
Lenders, such Lender shall forthwith (a) notify each of the other Lenders and
Agent of such receipt, and (b) purchase from the other Lenders such
participations in the affected Obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them, provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase
shall be rescinded and the purchase price restored to the extent of such
recovery or such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on such funds.
Xxxxxx agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 4.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Xxxxxx in the amount of such participation.
SECTION 4.16. CAPITAL ADEQUACY. Without limiting any other
provision of this Agreement, in the event that any Lender shall have determined
that any law, treaty, governmental (or quasi-governmental) rule, regulation,
guideline or order regarding capital adequacy not currently in effect or fully
applicable as of the Closing Date, or any change therein or in the
interpretation or application thereof after the Closing Date, or compliance by
such Lender with any request or directive regarding capital adequacy not
currently in effect or fully applicable as of the Closing Date (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from a central bank or governmental authority or body having
jurisdiction, does or shall have the effect of reducing the rate of return on
such Lender's capital as a consequence of its obligations hereunder to a level
below that which such Lender could have achieved but for such law, treaty,
rule, regulation, guideline or order, or such change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by an
amount deemed by such Lender to
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be material, then within ten (10) Business Days after written notice and demand
by such Lender (with copies thereof to the Agent), Xxxxxx shall from time to
time pay to such Lender additional amounts sufficient to compensate such Lender
for such reduction (but, in the case of outstanding Base Rate Advances, without
duplication of any amounts already recovered by such Lender by reason of an
adjustment in the applicable Base Rate). Each certificate as to the amount
payable under this Section 4.16 (which certificate shall set forth the basis
for requesting such amounts in reasonable detail), submitted to Xxxxxx by any
Lender in good faith, shall, absent manifest error, be final, conclusive and
binding for all purposes.
SECTION 4.17. BENEFITS TO GUARANTORS. In consideration for the
execution and delivery by the Guarantors of their Guaranty Agreement, Xxxxxx
agrees to make the benefit of extensions of credit hereunder available to the
Guarantors.
SECTION 4.18. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS. (a) Each
Lender or Agent shall make written demand on Xxxxxx for indemnification or
compensation pursuant to Section 4.07 no later than ninety (90) days after the
earlier of (i) the date on which such Lender or Agent makes payment of such
Taxes, or (ii) the date on which the relevant taxing authority or other
governmental authority makes written demand upon such Lender or Agent for
payment of such Taxes.
(b) Each Lender or Agent shall make written demand on Xxxxxx
for indemnification or compensation pursuant to Section 4.12 no later than
ninety (90) days after the event giving rise to the claim for indemnification
or compensation occurs.
(c) Each Lender or Agent shall make written demand on Xxxxxx
for indemnification or compensation pursuant to Sections 4.10 and 4.16 no later
than three hundred sixty-five (365) days after the occurrence giving rise to a
claim pursuant to such Sections.
(d) In the event that the Lenders or Agent fail to give
Xxxxxx notice within the time limitations prescribed in Section 4.18 (a) or
(b), Xxxxxx shall not have any obligation to pay such claim for compensation or
indemnification. In the event that the Lender or Agent fail to give Xxxxxx
notice within the time limitation prescribed in Section 4.18(c), Xxxxxx shall
not have any obligation to pay any amount with respect to claims accruing prior
to the ninetieth (90th) day preceding such written demand.
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ARTICLE VA.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Xxxxxx
hereunder and to accept a Term Note on the Conversion Date is subject to the
satisfaction of the following conditions:
SECTION 5A.01. CONDITIONS PRECEDENT TO INITIAL LOANS. At the time
of the funding of the initial Loans hereunder, all obligations of Xxxxxx
hereunder incurred prior to the initial Loans (including, without limitation,
Xxxxxx'x obligations to reimburse the reasonable fees and expenses of counsel
to the Agent and any fees and expenses payable to the Agent and the Lenders as
previously agreed with Xxxxxx), shall have been paid in full, and the Agent
shall have received the following, in form and substance reasonably
satisfactory in all respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Notes evidencing the
Revolving Loan Commitments and, on the Conversion Date,
the duly executed Term Notes;
(c) the Guaranty Agreement, the Contribution Agreement, the
Word, Incorporated Pledge Agreement (all of which as to
Word, Incorporated and its Subsidiaries shall be deemed
delivered immediately following the consummation of the
acquisition referenced in Section 5A.01(t)) and any and
all other Credit Documents required by Agent;
(d) certificate of Xxxxxx in substantially the form of
Exhibit I attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of
each of the Credit Parties (all of which as to Word,
Incorporated and its Subsidiaries shall be deemed
delivered immediately following the consummation of the
acquisition referenced in Section 5A.01(t)) attaching and
certifying copies of the resolutions of the boards of
directors of the Credit Parties, authorizing as
applicable (i) the execution, delivery and performance of
the Credit Documents and (ii) the granting of the pledges
and security interests granted pursuant to the Word,
Incorporated Pledge Agreement;
(f) certificates of the Secretary or an Assistant Secretary
of each of the Credit Parties (all of which
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as to Word, Incorporated and its Subsidiaries shall be
deemed delivered immediately following the consummation of
the acquisition referenced in Section 5A.01(t)) certifying
(i) the name, title and true signature of each officer of
such entities executing the Credit Documents, and (ii) the
bylaws or comparable governing documents of such entities;
(g) certified copies of the certificate or articles of
incorporation of each Credit Party certified by the
Secretary of State, together with certificates of good
standing or existence, as may be available from the
Secretary of State of the jurisdiction of incorporation
or organization of such Credit Party;
(h) examination reports from the Uniform Commercial Code
records of those locations set forth on Schedule 5A.01(h)
attached hereto, showing no outstanding liens or security
interests granted by any Credit Party other than (i)
Liens permitted by Section 8.02, and (ii) Liens securing
the Refinanced Indebtedness which are being released on
the Closing Date;
(i) copies of all documents and instruments, including all
consents, approvals, authorizations, registrations and
filings required or advisable under any Requirement of
Law or by any material Contractual Obligation of the
Credit Parties, in connection with the execution,
delivery, performance, validity and enforceability of the
Credit Documents and the other documents to be executed
and delivered hereunder, and such consents, approvals,
authorizations, registrations and filings shall be in
full force and effect and all applicable waiting periods
shall have expired;
(j) Intentionally Omitted;
(k) Intentionally Omitted;
(l) agreement by the lenders of the Refinanced Indebtedness
to accept payment in full of all obligations outstanding
under the Refinanced Indebtedness and termination of all
credit facilities relating thereto and to release all
Liens securing Refinanced Indebtedness, and the
establishment of escrow or other arrangements for such
repayment and release of Liens acceptable to the Agent
and the Lenders;
(m) certified copies of indentures, credit agreements,
instruments and other documents evidencing or securing
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Indebtedness of any Consolidated Company described on
Schedule 8.01(b), in any single case in an amount not
less than $500,000;
(n) certificates, reports and other information as the Agent
may reasonably request from any Consolidated Company in
order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from matters
relating to employees of the Consolidated Companies,
including employee relations, collective bargaining
agreements, Plans, and other compensation and employee
benefit plans;
(o) certificates, reports, environmental audits and
investigations, and other information as the Agent may
reasonably request from any Consolidated Company in order
to satisfy the Lenders as to the absence of any material
liabilities or obligations arising from Environmental
Laws, including without limitation, OSHA laws and
regulations to which the Consolidated Companies may be
subject, and the plans of the Consolidated Companies with
respect thereto;
(p) certificates, reports and other information as the Agent
may reasonably request from any Consolidated Company in
order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from
litigation (including without limitation, products
liability and patent infringement claims) pending or
threatened against the Consolidated Companies;
(q) a summary set forth in format and detail reasonably
acceptable to the Agent of the types and amounts of
insurance (property and liability) maintained by the
Consolidated Companies;
(r) the favorable opinion of Bass, Xxxxx & Xxxx, counsel to
the Credit Parties, substantially in the form of Exhibit
J attached hereto and addressed to the Agent and each of
the Lenders; and
(s) financial statements of the Consolidated Companies for
their most recently completed fiscal quarter on a
consolidated basis.
(t) evidence that Xxxxxx'x acquisition of all of the
outstanding common stock of Word, Incorporated pursuant
to the terms of the Stock Purchase Agreement between
Xxxxxx and ABC Holding Company, Inc. dated September 28,
1992 will be closed contemporaneously with the funding of
the Loans.
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In addition to the foregoing, the following conditions shall have been
satisfied or shall exist, all to the satisfaction of the Agent, as of the time
the initial Loans are made hereunder:
(x) the Loans to be made on the Closing Date and the use of
proceeds thereof shall not contravene, violate or
conflict with, or involve the Agent or any Lender in a
violation of, any law, rule, injunction or regulation, or
determination of any court of law or other governmental
authority; and
(y) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and
enforceability of the Credit Documents shall be
reasonably satisfactory in form and substance to the
Required Lenders.
SECTION 5A.02. CONDITIONS TO ALL LOANS. At the time of the making
of all Loans (including the Term Loans) (before as well as after giving effect
to such Loans and to the proposed use of the proceeds thereof), the following
conditions shall have been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Xxxxxx
contained herein shall be true and correct in all
material respects with the same effect as though such
representations and warranties had been made on and as of
the date of such Loans (except that the representation
and warranty set forth in Section 6A.19 shall not be
deemed to relate to any time subsequent to the date of
the initial Loans hereunder);
(c) since the date of the most recent financial statements of
the Consolidated Companies described in Section 6A.14,
there shall have been no change that has had or could
reasonably be expected to have a Materially Adverse
Effect in any Consolidated Company's financial condition,
properties, business, operations or prospects (whether or
not any notice with respect to such change has been
furnished to the Lenders pursuant to Section 7A.07);
(d) there shall be no action or proceeding instituted or
pending before any court or other governmental authority
or, to the knowledge of Xxxxxx, threatened that
reasonably could be expected to have a Materially Adverse
Effect in any Consolidated Company's financial condition,
properties, business, operations or prospects, including
without limitation any action or proceeding seeking to
prohibit or restrict one or more
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Credit Party's ownership or operation of any portion of
its business or assets, or to compel one or more Credit
Party to dispose of or hold separate all or any portion of
its businesses or assets, where such portion or portions
of such business(es) or assets, as the case may be,
constitute a material portion of the total businesses or
assets of the Consolidated Companies;
(e) the Loans to be made and the use of proceeds thereof
shall not contravene, violate or conflict with, or
involve the Agent or any Lender in a violation of, any
law, rule, injunction or regulation, or determination of
any court of law or other governmental authority
applicable to Xxxxxx; and
(f) the Agent shall have received such other documents or
legal opinions as the Agent or any Lender may reasonably
request, all in form and substance reasonably
satisfactory to the Agent.
Each request for a Borrowing and the acceptance by Xxxxxx of the
proceeds thereof and the execution of the Term Notes shall constitute a
representation and warranty by Xxxxxx, as of the date of the Loans comprising
such Borrowing, that the applicable conditions specified in Sections 5A.01 and
5A.02 have been satisfied.
ARTICLE VB.
NOTICE PERIOD REGARDING CONDITIONS
Xxxxxx, Agent and the Lenders hereby acknowledge that
contemporaneously with the funding of the Loans, Xxxxxx is acquiring all of the
outstanding common stock of Word, Incorporated. Pursuant to Xxxxxxxx 0X.00(x),
(x)(xx), (x), (x), (x), (x), (x), (x), (x), (x) and (s) and Sections 5A.02(b),
(c) and (d), Xxxxxx is required to provide and confirm to Agent certain
information with respect to the Consolidated Companies, including Word,
Incorporated and its Subsidiaries. Although Xxxxxx has performed certain due
diligence in connection with its acquisition of Word, Incorporated, Xxxxxx has
not owned or been in control of Word, Incorporated and its Subsidiaries prior
to the funding of the Loans. Consequently, in order to provide Xxxxxx with an
opportunity to further review the records and affairs of Word, Incorporated and
its Subsidiaries in connection with the information to be provided and
confirmed pursuant to Xxxxxxxx 0X.00(x), (x)(xx), (x), (x), (x), (x), (x), (x),
(x), (x) and (s) and Sections 5A.02(b), (c) and (d), Xxxxxx, Agent and the
Lenders agree that beginning on the
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Closing Date and continuing for the three (3) month period thereafter (the
"Notice Period"), Xxxxxx shall have the right to provide and confirm the
information required by Xxxxxxxx 0X.00(x), (x)(xx), (x), (x), (x), (x), (x),
(x), (x), (x) and (s) and Sections 5A.02(b), (c) and (d) with respect to Word,
Incorporated and any of its Subsidiaries (the "Word, Incorporated
Information"). During the Notice Period, any information provided or confirmed
pursuant to Xxxxxxxx 0X.00(x), (x)(xx), (x), (x), (x), (x), (x), (x), (x), (x)
and (s) and Sections 5A.02(b), (c) and (d) with respect to Word, Incorporated
and its Subsidiaries shall not be subject to the provisions of Section 9.03.
All Word, Incorporated Information must be in writing and received by Agent
during the Notice Period. Agent's receipt of Word, Incorporated Information
prior to the end of the Notice Period shall not constitute an Event of Default
hereunder. In no event shall any Word, Incorporated Information be permitted
with respect to Xxxxxx or any of its Subsidiaries other than Word, Incorporated
and its Subsidiaries. Upon termination of the Notice Period, all information
provided and confirmed pursuant to Xxxxxxxx 0X.00(x), (x)(xx), (x), (x), (x),
(x), (x), (x), (x), (x) and (s) and Sections 5A.02(b), (c) and (d), as amended
by any Word, Incorporated Information, if any, shall be subject to the
provisions of Section 9.03.
ARTICLE VIA.
REPRESENTATIONS AND WARRANTIES
Xxxxxx (as to itself and all other Consolidated Companies)
represents and warrants (subject to the provisions of Article VIB) as follows:
SECTION 6A.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of
the Consolidated Companies is a corporation duly organized, validly existing,
and in good standing under the laws of the jurisdiction of its incorporation.
Each of the Consolidated Companies (a) has the corporate power and authority
and the legal right to own and operate its property and to conduct its
business, (b) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership of property or the
conduct of its business requires such qualification, and (c) is in compliance
with all Requirements of Law, where (i) the failure to have such power,
authority and legal right as set forth in Section 6A.01(a), (ii) the failure to
be so qualified or in good standing as set forth in Section 6A.01(b), or (iii)
the failure to comply with Requirements of Law as set forth in Section
6A.01(c), would reasonably be expected, in the aggregate, to have a Materially
Adverse Effect. The jurisdiction of incorporation or organization, and the
ownership of all issued and outstanding
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capital stock, for each Subsidiary of Xxxxxx as of the date of this Agreement
is accurately described on Schedule 6A.01.
SECTION 6A.02. CORPORATE POWER; AUTHORIZATION. Each of the Credit
Parties has the corporate power and authority to make, deliver and perform the
Credit Documents to which it is a party and has taken all necessary corporate
action to authorize the execution, delivery and performance of such Credit
Documents. No consent or authorization of, or filing with, any Person
(including, without limitation, any governmental authority), is required in
connection with the execution, delivery or performance by any Credit Party, or
the validity or enforceability against any Credit Party, of the Credit
Documents, other than such consents, authorizations or filings that have been
made or obtained.
SECTION 6A.03. ENFORCEABLE OBLIGATIONS. This Agreement has been
duly executed and delivered, and each other Credit Document will be duly
executed and delivered, by the respective Credit Parties, and this Agreement
constitutes, and each other Credit Document when executed and delivered will
constitute, legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their
respective terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
SECTION 6A.04. NO LEGAL BAR. The execution, delivery and
performance by the Credit Parties of the Credit Documents will not violate any
Requirement of Law or cause a breach or default under any of their respective
Contractual Obligations which would have a Materially Adverse Effect.
SECTION 6A.05. NO MATERIAL LITIGATION. Except as set forth on
Schedule 6A.05, no litigation, investigations or proceedings of or before any
courts, tribunals, arbitrators or governmental authorities are pending or, to
the knowledge of Xxxxxx, threatened by or against any of the Consolidated
Companies, or against any of their respective properties or revenues, whether
such properties or revenues currently exist or may exist in the future, (a)
with respect to any Credit Document, or any of the transactions contemplated
hereby or thereby, or (b) which, if adversely determined, would reasonably be
expected to have a Materially Adverse Effect.
SECTION 6A.06. INVESTMENT COMPANY ACT, ETC. None of the Credit
Parties is an "investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the Investment
Company Act of 1940, as amended). None of the Credit Parties is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation limiting its
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ability to incur indebtedness for money borrowed, guarantee such indebtedness,
or pledge its assets to secure such indebtedness, as contemplated hereby or by
any other Credit Document.
SECTION 6A.07. MARGIN REGULATIONS. No part of the proceeds of any
of the Loans will be used for any purpose that violates, or that would be
inconsistent or not in compliance with, the provisions of the applicable Margin
Regulations.
SECTION 6A.08. COMPLIANCE WITH ENVIRONMENTAL LAWS. (a) The
Consolidated Companies have received no notices of claims or potential
liability under, and are in compliance with, all applicable Environmental Laws,
where such claims and liabilities under, and failures to comply with, such
statutes, regulations, rules, ordinances, laws or licenses, would reasonably be
expected to result in penalties, fines, claims or other liabilities to the
Consolidated Companies in amounts in excess of $1,000,000, either individually
or in the aggregate (including any such penalties, fines, claims, or
liabilities relating to the matters set forth on Schedule 6A.08(a)), except as
set forth on Schedule 6A.08(a).
(b) Except as set forth on Schedule 6A.08(b), none of the
Consolidated Companies has received any notice of violation, or notice of any
action, either judicial or administrative, from any governmental authority
(whether United States or foreign) relating to the actual or alleged violation
of any Environmental Law, including, without limitation, any notice of any
actual or alleged spill, leak or other release of any Hazardous Substance,
waste or hazardous waste by any Consolidated Company or its employees or
agents, or as to the existence of any contamination on any properties owned by
any Consolidated Company, where any such violation, spill, leak, release or
contamination would reasonably be expected to result in penalties, fines,
claims or other liabilities to the Consolidated Companies in amounts in excess
of $1,000,000, either individually or in the aggregate.
(c) Except as set forth on Schedule 6A.08(c), the
Consolidated Companies have obtained all necessary governmental permits,
licenses and approvals that are material to the operations conducted on their
respective properties, including without limitation, all required material
permits, licenses and approvals for (i) the emission of air pollutants or
contaminants, (ii) the treatment or pretreatment and discharge of waste water
or storm water, (iii) the treatment, storage, disposal or generation of
hazardous wastes, (iv) the withdrawal and usage of ground water or surface
water, and (v) the disposal of solid wastes.
SECTION 6A.09. INSURANCE. The Consolidated Companies currently
maintain insurance with respect to their respective properties and businesses,
with financially sound and reputable insurers, having coverages against losses
or damages of the kinds customarily insured against by reputable companies in
the same or
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similar businesses, such insurance being in amounts no less than those amounts
that are customary for such companies under similar circumstances. The
Consolidated Companies have paid all material amounts of insurance premiums now
due and owing with respect to such insurance policies and coverages, and such
policies and coverages are in full force and effect.
SECTION 6A.10. NO DEFAULT. None of the Consolidated Companies is
in default under or with respect to any Contractual Obligation in any respect
that has had or is reasonably expected to have a Materially Adverse Effect.
SECTION 6A.11. NO BURDENSOME RESTRICTIONS. Except as set forth on
Schedule 0X.00, xxxx of the Consolidated Companies is a party to or bound by
any Contractual Obligation or Requirement of Law that has had or would
reasonably be expected to have a Materially Adverse Effect.
SECTION 6A.12. TAXES. Except as set forth on Schedule 6A.12, each
of the Consolidated Companies has filed or caused to be filed all declarations,
reports and tax returns or tax extensions that are required to have been filed,
and has paid all taxes, custom duties, levies, charges and similar
contributions ("taxes" in this Section 6A.12) shown to be due and payable on
said returns or on any assessments made against them or their properties, and
all other taxes, fees or other charges imposed on them or any of their
properties by any governmental authority (other than those the amount or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided in its books); and no tax liens have been filed and, to the
knowledge of Xxxxxx, no claims are being asserted with respect to any such
taxes, fees or other charges.
SECTION 6A.13. SUBSIDIARIES. Except as disclosed on Schedule
6A.01, on the date of this Agreement, Xxxxxx has no Subsidiaries and neither
Xxxxxx nor any Subsidiary is a joint venture partner or general partner in any
partnership. After the date of this Agreement and funding of the Obligations,
except as disclosed on Schedule 6A.01 and Schedule 6A.13, Xxxxxx shall have no
Subsidiaries.
SECTION 6A.14. FINANCIAL STATEMENTS. Xxxxxx has furnished to the
Agent and the Lenders (a) the audited consolidated balance sheet as of March
31, 1992 of the Consolidated Companies and the related consolidated statements
of income, shareholders' equity and cash flows for the fiscal year then ended,
including in each case the related schedules and notes, and (b) the unaudited
balance sheet of the Consolidated Companies presented on a consolidated basis
as at the end of the second fiscal quarter of 1993, and the related unaudited
consolidated statements of income, shareholders' equity and cash flows
presented on a consolidated basis for the
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year-to-date period then ended, setting forth in each case in comparative form
the figures for the corresponding quarter of the Consolidated Companies'
previous fiscal year. The foregoing financial statements fairly present in all
material respects the consolidated financial condition of the Consolidated
Companies as at the dates thereof and results of operations for such periods in
conformity with GAAP consistently applied (subject, in the case of the
quarterly financial statements, to normal year-end audit adjustments and the
absence of certain footnotes). The Consolidated Companies taken as a whole do
not have any material contingent obligations, material contingent liabilities,
or material liabilities for known taxes, long-term leases (except leases of
Word, Incorporated as set forth on Schedule 6A.14 hereto) or unusual forward or
long-term commitments not reflected in the foregoing financial statements or
the notes thereto. Since March 31, 1992, there have been no changes with
respect to the Consolidated Companies that has had or would reasonably be
expected to have a Materially Adverse Effect.
SECTION 6A.15. ERISA. Except as disclosed on Schedule 6A.15:
(a) Identification of Plans. None of the Consolidated
Companies nor any of their respective ERISA Affiliates maintains or contributes
to, or has during the past two years maintained or contributed to, any Plan
that is subject to Title IV of ERISA;
(b) Compliance. Each Plan maintained by the Consolidated
Companies has at all times been maintained by its terms and in operation in
compliance with all applicable laws, and the Consolidated Companies are subject
to no tax or penalty with respect to any Plan of such Consolidated Company or
any ERISA Affiliate thereof, including without limitation, any tax or penalty
under Title I or Title IV of ERISA or under Chapter 43 of the Tax Code, or any
tax or penalty resulting from a loss of deduction under Sections 162, 404 or
419 of the Tax Code, where the failure to comply with such laws, and such taxes
and penalties, together with all other liabilities referred to in this Section
6A.15 (taken as a whole), would in the aggregate have a Materially Adverse
Effect;
(c) Liabilities. The Consolidated Companies are subject to no
liabilities (including withdrawal liabilities) with respect to any Plans of
such Consolidated Companies or any of their ERISA Affiliates, including without
limitation, any liabilities arising from Titles I or IV of ERISA, other than
obligations to fund benefits under an ongoing Plan and to pay current
contributions, expenses and premiums with respect to such Plans where such
liabilities, together with all other liabilities referred to in this Section
6A.15 (taken as a whole), would in the aggregate have a Materially Adverse
Effect;
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(d) Funding. The Consolidated Companies and, with respect to
any Plan that is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (i) required to be
contributed under the terms of each Plan and applicable law, and (ii) required
to be paid as expenses (including PBGC or other premiums) of each Plan, where
the failure to pay such amounts (when taken as a whole, including any penalties
attributable to such amounts) would have a Materially Adverse Effect. No Plan
subject to Title IV of ERISA has an "amount of unfunded benefit liabilities"
(as defined in Section 4001(a)(18) of ERISA), determined as if such Plan
terminated on any date on which this representation and warranty is deemed
made, in any amount that, together with all other liabilities referred to in
this Section 6A.15 (taken as a whole), would have a Materially Adverse Effect
if such amount were then due and payable. The Consolidated Companies are
subject to no liabilities with respect to post- retirement medical benefits in
any amounts that, together with all other liabilities referred to in this
Section 6A.15 (taken as a whole), would have a Materially Adverse Effect if
such amounts were then due and payable.
SECTION 6A.16. PATENTS, TRADEMARKS, LICENSES, ETC. Except as set
forth on Schedule 6A.16, (a) the Consolidated Companies have obtained and hold
in full force and effect all material patents, trademarks, service marks, trade
names, copyrights, licenses and other such rights, free from burdensome
restrictions, that are necessary for the operation of their respective
businesses as presently conducted, and (b) to the best of Xxxxxx'x knowledge,
no product, process, method, service or other item presently sold by or
employed by any Consolidated Company in connection with such business infringes
any patents, trademark, service xxxx, trade name, copyright, license or other
right owned by any other Person and there is not presently pending, or to the
knowledge of Xxxxxx, threatened, any claim or litigation against or affecting
any Consolidated Company contesting such Person's right to sell or use any such
product, process, method, substance or other item where the result of such
failure to obtain and hold such benefits or such infringement would have a
Materially Adverse Effect.
SECTION 6A.17. OWNERSHIP OF PROPERTY. Except as set forth on
Schedule 6A.17, each Consolidated Company has good and marketable fee simple
title to or a valid leasehold interest in all of its real property and good
title to, or a valid leasehold interest in, all of its other property, as such
properties are reflected in the consolidated balance sheet of the Consolidated
Companies as of March 31, 1992 referred to in Section 6A.14, other than
properties disposed of in the ordinary course of business since such date or as
otherwise permitted by the terms of this Agreement, subject to no Lien or title
defect of any kind, except Liens permitted hereby and title defects not
constituting material impairments in the intended use for such properties. The
Consolidated Companies enjoy peaceful and undisturbed possession
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under all of their respective leases. Those locations set forth on Schedule
5A.01(h) are all of the locations (a) at which property owned or leased by the
Consolidated Companies is located other than (i) property in transit in the
ordinary course of business, and (ii) sun tan oil constituting inventory owned
by Lars Desert Oasis Sun Care Products, Inc. that is located in Orange County,
California, and (b) representing each of the Consolidated Companies' place of
business if only one (1) exists or chief executive office if more than one (1)
place of business exists.
SECTION 6A.18. INDEBTEDNESS. (a) Except as set forth on Schedules
6A.18 and 8.01(b), none of the Consolidated Companies is an obligor in respect
of any Indebtedness for borrowed money, or any commitment to create or incur
any Indebtedness for borrowed money, in an amount not less than $500,000 in any
single case, and such Indebtedness and commitments for amounts less than
$500,000 do not exceed $1,000,000 in the aggregate for all such Indebtedness
and commitments of the Consolidated Companies.
(b) The Indebtedness listed on Schedule 6A.18 (the
"Refinanced Indebtedness") and accrued and unpaid interest thereon and fees in
respect thereof have been paid in full or provision for restructuring such
Indebtedness hereunder has been made such that, in accordance with the express
provisions of the instruments governing the same, upon funding of the initial
Loans hereunder, the Consolidated Companies will be released from all liability
and contractual obligations with respect thereto other than indemnifications
contained therein, and releases in recordable form of any and all Liens
previously securing the Refinanced Indebtedness will be obtained, including
terminations of all financing statements and other filings in respect thereof.
SECTION 6A.19. FINANCIAL CONDITION. On the Closing Date and after
giving effect to the transactions contemplated by this Agreement and the other
Credit Documents, including without limitation, the use of the proceeds as
provided in Section 2.03, (a) the assets of each Credit Party at fair valuation
and based on their present fair saleable value (including, without limitation,
the fair and realistic value of any contribution or subrogation rights in
respect of any Guaranty Agreement given by such Credit Party) will exceed such
Credit Party's debts, including contingent liabilities (as such liabilities may
be limited under the express terms of any Guaranty Agreement of such Credit
Party), (b) the remaining capital of such Credit Party will not be unreasonably
small to conduct the Credit Party's business, and (c) such Credit Party will
not have incurred debts, or have intended to incur debts, beyond the Credit
Party's ability to pay such debts as they mature. For purposes of this Section
6A.19, "debt" means any liability on a claim, and "claim" means (A) the right
to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (B) the
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right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
SECTION 6A.20. Intentionally Omitted.
SECTION 6A.21. LABOR MATTERS. Except as set forth in Schedule
6A.21, the Consolidated Companies have experienced no strikes, labor disputes,
slow downs or work stoppages due to labor disagreements that have had, or would
reasonably be expected to have, a Materially Adverse Effect, and, to the best
knowledge of Xxxxxx, there are no such strikes, disputes, slow downs or work
stoppages threatened against any Consolidated Company. The hours worked and
payment made to employees of the Consolidated Companies have not been in
violation in any material respect of the Fair Labor Standards Act or any other
applicable law dealing with such matters. All payments due from the
Consolidated Companies, or for which any claim may be made against the
Consolidated Company, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as liabilities on the
books of the Consolidated Companies where the failure to pay or accrue such
liabilities would reasonably be expected to have a Materially Adverse Effect.
SECTION 6A.22. PAYMENT OR DIVIDEND RESTRICTIONS. Except as set
forth in Section 8.04 or described on Schedule 0X.00, xxxx of the Consolidated
Companies is party to or subject to any agreement or understanding restricting
or limiting the payment of any dividends or other distributions by any such
Consolidated Company.
SECTION 6A.23. DISCLOSURE. No factual information, representation
or warranty contained in this Agreement (including the Schedules attached
hereto) or in any other document furnished from time to time pursuant to the
terms of this Agreement, when viewed in conjunction with all such other factual
information, representations or warranties in this Agreement or in any other
document furnished pursuant to the terms of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary to make the statements herein or therein not
misleading in any material respect as of the date made or deemed to be made.
Except as may be set forth herein (including the Schedules attached hereto) or
in any notice furnished to the Lenders pursuant to Section 7A.07 at or prior to
the respective times the representations and warranties set forth in this
Section 6A.23 are made or deemed to be made hereunder, there is no fact known
to Xxxxxx that has had, or is reasonably expected to have, a Materially Adverse
Effect.
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ARTICLE VIB.
REPRESENTATION AND WARRANTY NOTICE PERIOD
Xxxxxx, Agent and the Lenders hereby acknowledge that
contemporaneously with the funding of the Loans, Xxxxxx is acquiring all of the
outstanding common stock of Word, Incorporated. Pursuant to Article VIA, Xxxxxx
is making certain representations and warranties with respect to the
Consolidated Companies, including Word, Incorporated and its Subsidiaries.
Although Xxxxxx has performed certain due diligence in connection with its
acquisition of Word, Incorporated, Xxxxxx has not owned or been in control of
Word, Incorporated and its Subsidiaries prior to the funding of the Loans.
Consequently, in order to provide Xxxxxx with an opportunity to further review
the records and affairs of Word, Incorporated and its Subsidiaries in
connection with the representations and warranties made in Article VIA, Xxxxxx,
Agent and the Lenders agree that during the Notice Period, Xxxxxx shall have
the right to modify this Agreement by adding to Article VIA any schedules that
Xxxxxx xxxxx necessary to correct, clarify and/or modify any representation or
warranty made with respect to Word, Incorporated and any of its Subsidiaries
(the "Word, Incorporated Corrections"). During the Notice Period, any
representations and warranties contained in Article VIA with respect to Word,
Incorporated and its Subsidiaries shall not be subject to the provisions of
Section 9.04. All Word, Incorporated Corrections must be in writing and
received by Agent during the Notice Period. Agent's receipt of a Word,
Incorporated Correction prior to the end of the Notice Period shall not
constitute an Event of Default hereunder. In no event shall any Word,
Incorporated Correction be permitted with respect to Xxxxxx or any of its
Subsidiaries other than Word, Incorporated and its Subsidiaries. Upon
termination of the Notice Period, all representations and warranties contained
in Article VIA, as amended by any Word, Incorporated Corrections, if any, shall
be subject to the provisions of Section 9.04.
ARTICLE VIC.
REPRESENTATIONS AND WARRANTIES REGARDING
SCHEDULE 7A.01 SUBSIDIARIES
Xxxxxx represents and warrants that the net worths of those
Subsidiaries of Xxxxxx set forth on Schedule 7A.01 are within the ranges set
forth opposite the respective names of such Subsidiaries on Schedule 7A.01.
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ARTICLE VIIA.
AFFIRMATIVE COVENANTS
So long as any Revolving Loan Commitment or Term Loan remains in
effect hereunder or any Note shall remain unpaid, Xxxxxx will:
SECTION 7A.01. CORPORATE EXISTENCE, ETC. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, its material rights, franchises, and licenses, and its material
patents and copyrights (for the scheduled duration thereof), trademarks, trade
names, and service marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to be so qualified would reasonably
be expected to have a Materially Adverse Effect.
SECTION 7A.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause each
of its Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws subject to the exception set forth in
Section 6A.08 where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve
amounts in excess of $1,000,000 in the aggregate) and Contractual Obligations
applicable to or binding on any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would reasonably be expected to
have a Materially Adverse Effect.
SECTION 7A.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause
each of its Subsidiaries to pay, (a) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (b) all claims (including,
without limitation, claims for labor, materials, supplies or services) that
might, if unpaid, become a Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained with respect thereto.
SECTION 7A.04. KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries in all material respects of all their respective financial
and business transactions.
SECTION 7A.05. VISITATION, INSPECTION, ETC. Permit, and cause
each of its Subsidiaries to permit, any representative of the Agent or any
Lender to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts
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therefrom, and to discuss its affairs, finances and accounts with its officers,
all at such reasonable times and as often as the Agent or such Lender may
reasonably request after reasonable prior notice to Xxxxxx; provided, however,
that at any time following the occurrence and during the continuance of a
Default or an Event of Default, no prior notice to Xxxxxx shall be required.
SECTION 7A.06. INSURANCE; MAINTENANCE OF PROPERTIES. (a)Maintain
or cause to be maintained with financially sound and reputable insurers,
insurance with respect to its properties and business, and the properties and
business of its Subsidiaries, against loss or damage of the kinds customarily
insured against by reputable companies in the same or similar businesses, such
insurance to be of such types and in such amounts as is customary for such
companies under similar circumstances; provided, however, that in any event
Xxxxxx shall use its best efforts to maintain, or cause to be maintained,
insurance in amounts and with coverages not materially less favorable to any
Consolidated Company as in effect on the date of this Agreement, except where
the costs of maintaining such insurance would, in the judgment of both Xxxxxx
and the Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Xxxxxx may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 7A.06(b) shall prevent Xxxxxx
from discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the judgment of Xxxxxx, desirable in the conduct of its
business or the business of any Consolidated Company.
SECTION 7A.07. REPORTING COVENANTS. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in
any event within ninety (90) days after the end of each fiscal year of Xxxxxx,
balance sheets of the Consolidated Companies as at the end of such year,
presented on a consolidated and consolidating basis, and the related statements
of income, shareholders' equity, and cash flows of the Consolidated Companies
for such fiscal year, presented on a consolidated and consolidating basis
(which consolidating report need not be audited), setting forth in each case in
comparative form the figures for the previous fiscal year as then reported, all
in reasonable detail and accompanied by a report thereon of Xxxxxx Xxxxxxxx &
Co. or other independent public accountants of comparable recognized national
standing, which such report shall be unqualified as to going concern and scope
of audit and shall state that such financial statements present fairly in
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all material respects the financial condition as at the end of such fiscal year
on a consolidated basis, and the results of operations and statements of cash
flows of the Consolidated Companies for such fiscal year in accordance with
GAAP and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards;
(b) Quarterly Financial Statements. As soon as available and
in any event within sixty (60) days after the end of each fiscal quarter of
Xxxxxx (other than the fourth fiscal quarter), balance sheets of the
Consolidated Companies as of the end of such quarter presented on a
consolidated basis and the related statements of income, shareholders' equity,
and cash flows of the Consolidated Companies for such fiscal quarter and for
the portion of Xxxxxx'x fiscal year ended at the end of such quarter, presented
on a consolidated basis setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of Xxxxxx'x
previous fiscal year, all in reasonable detail and certified by the chief
financial officer or principal accounting officer of Xxxxxx that such financial
statements fairly present in all material respects the financial condition of
the Consolidated Companies as of the end of such fiscal quarter on a
consolidated basis, and the results of operations and statements of cash flows
of the Consolidated Companies for such fiscal quarter and such portion of
Xxxxxx'x fiscal year, in accordance with GAAP consistently applied (subject to
normal year-end audit adjustments and the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to Section 7A.07(a) and (b), a
certificate of the president, chief financial officer or principal accounting
officer of Xxxxxx (i) to the effect that, based upon a review of the activities
of the Consolidated Companies and such financial statements during the period
covered thereby, there exists no Event of Default and no Default under this
Agreement, or if there exists an Event of Default or a Default hereunder,
specifying the nature thereof and the proposed response thereto, and (ii)
demonstrating in reasonable detail compliance as of the end of such fiscal year
or such fiscal quarter with Section 7A.08 and Sections 8.01 through 8.05;
(d) Auditor's No Default Certificate. Together with the
financial statements required pursuant to Section 7A.07(a), a certificate of
the accountants who prepared the report referred to therein, to the effect
that, based upon their audit, there exists no Default or Event of Default under
this Agreement, or if there exists a Default or Event of Default hereunder,
specifying the nature thereof;
(e) Intentionally Omitted;
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(f) Notice of Default. Promptly after any Executive Officer
of Xxxxxx has notice or knowledge of the occurrence of an Event of Default or a
Default, a certificate of the chief financial officer or principal accounting
officer of Xxxxxx specifying the nature thereof and the proposed response
thereto;
(g) Asset Sales. Together with the financial statements
required pursuant to Section 7A.07(a), a certificate of the chief financial
officer or principal accounting officer of Xxxxxx reporting all Asset Sales
effected by the Consolidated Companies during the fiscal year covered by such
financial statements which involved Asset Values in excess of $100,000 in any
single transaction or related series of transactions, including the Asset Value
of such assets and the amounts received by the Consolidated Companies with
respect to such sales, and such other information regarding such transactions
as the Agent or any Lender may reasonably request;
(h) Litigation. Promptly after (i) the occurrence thereof,
notice of the institution of or any material adverse development in any
material action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated Company, or
any material property of any thereof, or (ii) actual knowledge thereof, notice
of the threat of any such action, suit, proceeding, investigation or
arbitration;
(i) Environmental Notices. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action, claim or
request for information, either judicial or administrative, from any
governmental authority relating to any actual or alleged claim, notice of
potential liability under or violation of any Environmental Law, or any actual
or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated Company
that could result in penalties, fines, claims or other liabilities to any
Consolidated Company in amounts in excess of $250,000;
(j) ERISA. (i) Promptly after Xxxxxx has knowledge
or should have had knowledge of the occurrence thereof with
respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof, or any trust established thereunder, notice of
(A) a "reportable event" described in Section 4043 of ERISA and
the regulations issued from time to time thereunder (other than a
"reportable event" not subject to the provisions for 30-day
notice to the PBGC under such regulations), or (B) any other
event which could reasonably be expected to subject any
Consolidated Company to any tax, penalty or liability under Title
I or Title IV of ERISA or Chapter 43 of the Tax Code, or any tax
or penalty resulting from a loss of deduction under Sections 162,
404 or 419 of the Tax Code, or any tax, penalty or
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liability under any Requirement of Law applicable, where any such
taxes, penalties or liabilities exceed or could reasonably be
expected to exceed $250,000 in the aggregate;
(ii) Promptly after such notice must be provided to the
PBGC, or to a Plan participant, beneficiary or alternative payee,
any notice referred to or required under Section 101(d),
302(f)(4), 303, 307 or 4041(c)(1)(A) of ERISA or under Section
412 of the Tax Code with respect to any Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, (A) any notice received by
any Consolidated Company or any ERISA Affiliate thereof
concerning the intent of the PBGC or any other governmental
authority to terminate a Plan of such Consolidated Company or
ERISA Affiliate thereof that is subject to Title IV of ERISA, (B)
any notice received by any Consolidated Company or any ERISA
Affiliate thereof concerning the intent of the PBGC or any other
governmental authority to impose any liability on such
Consolidated Company or ERISA Affiliate thereof under Title IV of
ERISA, or (C) any notice received by any Consolidated Company or
any ERISA Affiliate thereof concerning the intent of the Internal
Revenue Service or any other governmental authority to impose any
liability on such Consolidated Company or ERISA Affiliate thereof
under Chapter 43 of the Tax Code, which action under Section
7A.07(j)(iii)(C) could reasonably be expected to have a
Materially Adverse Effect;
(iv) Upon the request of the Agent, promptly upon
the filing thereof with the Internal Revenue Service ("IRS") or
the Department of Labor ("DOL"), a copy of IRS Form 5500 or
annual report for each Plan of any Consolidated Company or ERISA
Affiliate thereof that is subject to Title IV of ERISA;
(v) Upon the request of the Agent, (A) true and
complete copies of any and all documents, government reports and
IRS determination or opinion letters or rulings for any Plan of
any Consolidated Company from the IRS, PBGC or DOL, (B) any
reports filed with the IRS, PBGC or DOL with respect to a Plan of
the Consolidated Companies or any ERISA Affiliate thereof, or (C)
a current statement of withdrawal liability for each
Multiemployer Plan of any Consolidated Company or any ERISA
Affiliate thereof;
(k) Liens. Promptly upon any Consolidated Company becoming
aware thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by Section 8.02;
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(l) Public Filings, Etc. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Xxxxxx to its public security holders, of all regular
and periodic reports and all registration statements and prospectuses, if any,
filed by any of them with any securities exchange, and of all financial press
releases and other statements made available generally to the public containing
material developments in the business or financial condition of Xxxxxx and the
other Consolidated Companies;
(m) Accountants' Reports. Promptly upon receipt thereof,
copies of all financial statements of, and all reports submitted by,
independent public accountants to any of the Consolidated Companies in
connection with each annual, interim or special audit of the Consolidated
Companies' financial statements, including without limitation, the comment
letter submitted by such accountants to management in connection with their
annual audit;
(n) Burdensome Restrictions, Etc. Promptly upon the existence
or occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in Section 6A.11, (ii)
failure of any Consolidated Company to hold in full force and effect those
material trademarks, service marks, patents, trade names, copyrights, licenses
and similar rights necessary in the normal conduct of its business, and (iii)
any strike, labor dispute, slow down or work stoppage as described in Section
6A.21;
(o) New Subsidiaries. Within thirty (30) days after the
formation or acquisition of any Subsidiary, or any other event resulting in the
creation of a new Subsidiary, notice of the formation or acquisition of such
Subsidiary or such occurrence, including a description of the assets of such
entity, the activities in which it will be engaged, and such other information
as the Agent may request;
(p) Intercompany Asset Transfers. Promptly upon the
occurrence thereof, notice of the transfer of any assets from any Consolidated
Company to any other Consolidated Company (in any transaction or series of
related transactions), excluding sales or other transfers of assets in the
ordinary course of business, where the Asset Value of such assets is greater
than $1,000,000;
(q) Asset sales. At any time that the aggregate amount of
Asset Sales made by the Consolidated Companies after November 30, 1992 exceeds
$2,500,000 (based on the Asset Values), prompt notice of any additional Asset
Sale or related series of Asset Sales involving Asset Values of $100,000 or
more; and
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(r) Other Information. With reasonable promptness, such other
information about the Consolidated Companies as the Agent or any Lender may
reasonably request from time to time.
SECTION 7A.08. FINANCIAL COVENANTS. (a) Working Capital. Maintain
as of the last day of each fiscal quarter, Working Capital of at least
$60,000,000.
(b) Fixed Charge Coverage. Maintain as of the last day of
each fiscal quarter, a minimum Fixed Charge Coverage Ratio, calculated for the
immediately preceding four fiscal quarters of 1.1 to 1.0.
(c) Funded Debt to Total Capital. Maintain as of the last
day of each fiscal quarter, a maximum ratio of Funded Debt to Total Capital,
calculated quarterly, as shown below for each fiscal quarter ending during the
fiscal quarters indicated:
Fiscal Quarter Maximum Ratio
-------------- -------------
Through September 30, 1993 .75:1.0
December 31, 1993 through March 31, 1994 .70:1.0
June 30, 1994 through March 31, 1995 .65:1.0
Thereafter .60:1.0
(d) Leverage Ratio. Maintain as of the last day of each
fiscal quarter, a maximum Leverage Ratio of less than or equal to 0.50:1.0.
(e) Interest Coverage Ratio. Maintain as of the last day of
each fiscal quarter, a minimum Interest Coverage Ratio, calculated for the
immediately preceding four fiscal quarters, as shown below for each fiscal
quarter indicated:
Fiscal Quarter Maximum Ratio
-------------- -------------
Through March 31, 1994 1.50:1.00
June 30, 1994 through March 31, 1995 2.00:1.00
June 30, 1995 through March 31, 1996 2.50:1.00
Thereafter 3.00:1.00
(f) Second Fiscal Quarter 1992 Calculations. Acknowledge that
Schedule 7A.08 sets forth the calculation of the financial covenant amounts,
ratios, and percentages required by Section 7A.08(a) through (e) calculated as
of September 30, 1992.
SECTION 7A.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Immediately upon Xxxxxx'x receipt thereof, furnish the Agent a copy of any
notice received by it or any other Consolidated Company from the holder(s) of
Indebtedness referred to in Section 8.01(b), (f) or (g) (or from any trustee,
agent, attorney, or other party acting
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on behalf of such holder(s)) in an amount that exceeds $500,000, where such
notice states or claims (a) the existence or occurrence of any actual or
alleged default or event of default with respect to such Indebtedness under the
terms of any indenture, loan or credit agreement, debenture, note or other
document evidencing or governing such Indebtedness, or (b) the existence or
occurrence of any event or condition that requires or permits holder(s) of any
Indebtedness to exercise rights under any Change in Control Provision. Xxxxxx
agrees to take such actions as may be necessary to require the holder(s) of any
Indebtedness (or any trustee or agent acting on their behalf) incurred pursuant
to documents executed or amended and restated after the Closing Date, to
furnish copies of all such notices directly to the Agent simultaneously with
the furnishing thereof to Xxxxxx, and that such requirement may not be altered
or rescinded without the prior written consent of the Agent.
SECTION 7A.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL. Promptly
after the formation, creation or acquisition (provided that nothing in this
Section 7A.10 shall be deemed to authorize the acquisition of any entity) of
any Subsidiary not listed on Schedule 6A.01 and Schedule 6A.13, Xxxxxx shall
execute and deliver, and cause to be executed and delivered a Guaranty
Agreement from each such Subsidiary, together with related documents of the
kind described in Article VA as Agent shall require, all in form and substance
satisfactory to the Agent and the Required Lenders.
SECTION 7A.11. TERMINATION OF DESIGNATED SUBSIDIARIES. Within the
ninety (90) day period following the Closing Date, Xxxxxx shall provide the
Agent with Articles of Termination evidencing the dissolution and/or
termination of Xxxxxx Xxxxxx Export, Inc., a Tennessee corporation, and Xxxxxx
Xxxxxx Service Corporation, a Minnesota corporation, both Subsidiaries of
Xxxxxx.
ARTICLE VIIB.
SCHEDULE AMENDMENTS
In the event notice is provided by Xxxxxx pursuant to the terms
of Article VIIA ("Notice of Change"), any information contained in a Notice of
Change shall become a part of the Schedule relating to such information only
upon the written approval of the Required Lenders as evidenced by an amendment
to this Agreement.
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ARTICLE VIII.
NEGATIVE COVENANTS
So long as any Revolving Loan Commitment or Term Loan remains in
effect hereunder or any Note shall remain unpaid, Xxxxxx will not and will not
permit any Subsidiary to:
SECTION 8.01. INDEBTEDNESS. Create, incur, assume or suffer to
exist any Indebtedness, other than:
(a) Indebtedness evidenced by the Notes;
(b) Indebtedness outstanding on the date hereof or pursuant
to lines of credit in effect on the date hereof, all as described on Schedule
8.01(b) (excluding Refinanced Indebtedness);
(c) purchase money Indebtedness acceptable to Agent and
Lenders not to exceed an aggregate amount of $1,000,000 outstanding at any one
time;
(d) unsecured current liabilities (other than liabilities
for borrowed money or liabilities evidenced by promissory notes, bonds or
similar instruments) incurred in the ordinary course of business and either (i)
not more than sixty (60) days past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed liability maintained in
conformity with GAAP;
(e) Intentionally Omitted;
(f) Subordinated Debt not to exceed $55,000,000 (unless the
Revolving Loan Commitment is permanently reduced by an amount equal to the
excess over $55,000,000 of Subordinated Debt issued) on terms and conditions
acceptable to Agent and Lenders;
(g) Indebtedness owed to Agent by Xxxxxx, which Indebtedness
is evidenced by a Revolving Credit Promissory Note in the original principal
amount of $5,000,000 substantially in the form attached hereto as Exhibit K the
("TNB Five Million Dollar Revolving Credit Facility");
(h) Other Indebtedness not to exceed $1,000,000 at any one
time outstanding.
SECTION 8.02. LIENS. Create, incur, assume or suffer to exist any
Lien on any of its property now owned or hereafter acquired to secure any
Indebtedness other than:
(a) any Lien required under this Agreement;
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(b) Liens existing on the date hereof disclosed on Schedule
8.02 (excluding Liens securing Refinanced Indebtedness);
(c) any Liens securing purchase money Indebtedness described
in Section 8.01(c);
(d) Liens for taxes not yet due (and in the case of Liens on
real property in Tennessee, not then delinquent), and Liens for taxes that are
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained;
(e) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created in
the ordinary course of business for amounts not yet due or that are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained;
(f) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money); and
(g) Liens (other than those permitted by Sections (a) through
(f) of this Section 8.02) encumbering assets having an Asset Value not greater
than $1,000,000 in the aggregate at any one time.
SECTION 8.03. MERGERS, ACQUISITIONS, SALES, ETC. Merge or
consolidate with any other Person, or sell, lease or otherwise dispose of its
accounts, property or other assets (including capital stock of Subsidiaries),
or purchase, lease or otherwise acquire all or any substantial portion of the
property or assets (including capital stock) of any Person; provided, however,
that the foregoing restrictions on asset sales shall not be applicable to (a)
sales of equipment or other personal property being replaced by other equipment
or other personal property purchased as a capital expenditure item, (b) other
sales of assets (including stock of Subsidiaries) in an aggregate amount not to
exceed ten percent (10%) of Consolidated Net Worth computed as of March 31,
1993 subject to Sections 2.08 and 3.03, and (c) sales of inventory in the
ordinary course of business; provided further, that the foregoing restrictions
on mergers shall not apply to mergers between Subsidiaries or Xxxxxx provided
that upon consummation of such merger, Xxxxxx is in compliance with Section
7A.08 hereof and is the surviving corporation of such merger; provided,
however, that no transaction pursuant to Section 8.03(a) or (b) or the second
proviso in this Section 8.03 shall be permitted if any
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Default or Event of Default otherwise exists at the time of such transaction or
would otherwise exist as a result of such transaction.
SECTION 8.04. DIVIDENDS, ETC. Declare or pay any dividend on its
capital stock, or make any payment to purchase, redeem, retire or acquire any
of its Subordinated Debt or capital stock or any option, warrant, or other
right to acquire such Subordinated Debt or capital stock, other than:
(a) dividends payable solely in shares of capital stock;
(b) cash dividends declared and paid, and all other such
payments made, after March 31, 1992 in an aggregate
amount at any time not to exceed (i) $1,600,000, plus
(ii) thirty percent (30%) of Consolidated Net Income (or
minus one hundred percent (100%) of Consolidated Net
Loss) earned during Xxxxxx'x 1993 fiscal year and
thereafter (such period to be treated as one accounting
period); and
(c) redemption of Subordinated Debt upon the exercise of
conversion rights contained in that certain Indenture
dated as of November 30, 1992, between Xxxxxx and
Boatmen's Trust Company, as Trustee, evidencing the
Subordinated Debt;
provided, however, no such dividend or other payment may be declared or paid
pursuant to Section 8.04(b) unless (A) the full amount of the mandatory
prepayment required by Section 2.08 or Section 3.03, as the case may be, has
been made, and (B) no Default or Event of Default exists at the time of such
declaration or payment, or would exist as a result of such declaration or
payment.
SECTION 8.05. INVESTMENTS, LOANS, ETC. Make, permit or hold any
Investments in any Person, or otherwise acquire or hold any Subsidiaries, other
than:
(a) Investments in Subsidiaries that are Guarantors under
this Agreement, whether such Subsidiaries are Guarantors on the Closing Date or
become Guarantors in accordance with Section 7A.10 after the Closing Date;
provided, however, nothing in this Section 8.05 shall be deemed to authorize an
investment pursuant to this Section 8.05(a) in any entity that is not a
Subsidiary and a Guarantor prior to such investment;
(b) Intentionally Omitted;
(c) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency thereof,
in each case supported by the full faith and credit
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of the United States and maturing within one year from the date of creation
thereof;
(d) commercial paper maturing within one year from the date
of creation thereof rated in the highest grade by a nationally recognized
credit rating agency;
(e) time deposits maturing within one (1) year from the date
of creation thereof with, including certificates of deposit issued by, any
office located in the United States of any bank or trust company that is
organized under the laws of the United States or any state thereof and has
capital, surplus and undivided profits aggregating at least $500,000,000,
including without limitation, any such deposits in eurodollars issued by a
foreign branch of any such bank or trust company;
(f) those loans or extensions of credit made by any
Consolidated Company to another Consolidated Company; and
(g) Investments (other than those permitted by Section
8.05(a) through (f)) in an aggregate amount not to exceed $10,000,000.
SECTION 8.06. SALE AND LEASEBACK TRANSACTIONS. Sell or transfer
any property, real or personal, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property that any Consolidated
Company intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SECTION 8.07. TRANSACTIONS WITH AFFILIATES. Enter into any
material transaction or series of related transactions with any Affiliate of
any Consolidated Company (but excluding any Affiliate that is also a
Consolidated Company), other than on terms and conditions substantially as
favorable to such Consolidated Company as would be obtained by such
Consolidated Company at the time in a comparable arm's-length transaction with
a Person other than an Affiliate.
SECTION 8.08. OPTIONAL PREPAYMENTS. Directly or indirectly,
prepay, purchase, redeem, retire, defease or otherwise acquire or make any
optional payment on account of any principal of, interest on, or premium
payable in connection with the optional prepayment, redemption or retirement
of, any of its Indebtedness, or give a notice of redemption with respect to any
such Indebtedness, or make any payment in violation of the subordination
provisions of any Subordinated Debt, except with respect to (a) the Obligations
under this Agreement and the Notes, (b) those loans or extensions of credit
made by any Consolidated Company to another Consolidated Company, (c) the
Indebtedness more particularly described in Section 8.01(g), and (d) redemption
of Subordinated Debt upon the exercise of conversion rights contained in that
certain Indenture
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dated as of November 30, 1992, between Xxxxxx and Boatmen's Trust Company, as
Trustee, evidencing the Subordinated Debt; provided, however, that no
prepayment pursuant to this Section 8.08 shall be permitted if any Default or
Event of Default otherwise exists at the time of such prepayment or would
otherwise exist as a result of such prepayment.
SECTION 8.09. CHANGES IN BUSINESS. Enter into any business that
is substantially different from that presently conducted by the Consolidated
Companies taken as a whole (which includes the publishing, distribution and
sale of bibles, music and books and the sale and distribution of gift
products), except where the aggregate Investment made and other funds expended
or committed with respect to such business does not exceed $2,500,000;
provided, however, that any Investment permitted by this Section 8.09 shall be
included in the calculation of Investments as set forth in Section 8.05(g).
SECTION 8.10. ERISA. Take or fail to take any action with respect
to any Plan or any Consolidated Company or, with respect to its ERISA
Affiliates, any Plans which are subject to Title IV of ERISA or to continuation
health care requirements for group health plans under the Tax Code, including
without limitation (a) establishing any such Plan, (b) amending any such Plan
(except where required to comply with applicable law), (c) terminating or
withdrawing from any such Plan, or (d) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any withdrawal
liability under Title IV of ERISA with respect to any such Plan, without first
obtaining the written approval of the Required Lenders, where such actions or
failures could reasonably be expected to have a Materially Adverse Effect.
SECTION 8.11. ADDITIONAL NEGATIVE PLEDGES. Create or otherwise
cause or suffer to exist or become effective, directly or indirectly, any
prohibition or restriction on the creation or existence of any Lien upon any
asset of any Consolidated Company, other than pursuant to (a) Section 8.02, (b)
the terms of any agreement, instrument or other document pursuant to which any
Indebtedness, permitted by Section 8.01(c) is incurred by any Consolidated
Company, so long as such prohibition or restriction applies only to the
property or asset being financed by such Indebtedness and (c) any requirement
of applicable law or any regulatory authority having jurisdiction over any of
the Consolidated Companies.
SECTION 8.12. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any
Consolidated Company to (a) pay dividends or make any other distributions on
such Consolidated Company's stock, (b) pay any indebtedness owed to Xxxxxx or
any other Consolidated Company, or (c) transfer any of its property or assets
to Xxxxxx or
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any other Consolidated Company, except any consensual encumbrance or
restriction existing under the Credit Documents.
SECTION 8.13. ACTIONS UNDER CERTAIN DOCUMENTS. Without the prior
written consent of the Agent (which consent shall not be unreasonably
withheld), modify, amend, cancel or rescind any agreements or documents
evidencing or governing Subordinated Debt, except that current interest accrued
thereon as of the date of this Agreement and all interest subsequently accruing
thereon (whether or not paid currently) may be paid unless a Default or Event
of Default has occurred and is continuing.
Notwithstanding any other provision set forth in this Agreement,
as long as any Revolving Loan Commitment or Term Loan remains in effect
hereunder or any Note shall remain unpaid, Xxxxxx will not permit any
Subsidiary listed on Schedule 7A.01 to receive (a) any proceeds of the Loans,
(b) any proceeds of any loans made by any Consolidated Company, (c) any assets
from any Consolidated Company other than in the ordinary course of business, or
(d) any assets from any Consolidated Company in the ordinary course of
business; provided such assets received by all the Subsidiaries listed on
Schedule 7A.01 in the ordinary course of business shall not in the aggregate
exceed $50,000 during any one calendar year.
ARTICLE IX.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 9.01. PAYMENTS. Xxxxxx shall fail to make promptly when
due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Loans, or Xxxxxx shall fail to make within three
(3) days after the due date thereof any payment of interest, fee or other
amount payable hereunder;
SECTION 9.02. COVENANTS WITHOUT NOTICE. Xxxxxx shall fail to
observe or perform any covenant or agreement contained in Sections 7A.07(f),
7A.08, 8.01 through 8.06, 8.08, 8.09 and 8.11 through 8.13;
SECTION 9.03. OTHER COVENANTS. Xxxxxx shall fail to observe or
perform any covenant or agreement contained in this Agreement, other than those
referred to in Sections 9.01 and 9.02, and, if capable of being remedied, such
failure shall remain unremedied for thirty (30) days after the earlier of (a)
Xxxxxx'x obtaining
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knowledge thereof, or (b) written notice thereof shall have been given to
Xxxxxx by Agent or any Lender;
SECTION 9.04. REPRESENTATIONS. Any representation or warranty
made or deemed to be made by Xxxxxx or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted to
the Agent or the Lenders by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any material
respect when made or deemed to be made or submitted;
SECTION 9.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any
Consolidated Company shall fail to make when due (whether at stated maturity,
by acceleration, on demand or otherwise, and after giving effect to any
applicable grace period) any payment of principal, interest or any other amount
owed on any Indebtedness (other than the Obligations) exceeding $1,000,000 in
the aggregate;
SECTION 9.06. DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated
Company shall fail to observe or perform within any applicable grace period any
covenants or agreements contained in any agreements or instruments relating to
any of its Indebtedness (other than the Obligations) exceeding $1,000,000 in
the aggregate, or any other event shall occur if the effect of such failure or
other event is to accelerate, or to permit the holder of such Indebtedness or
any other Person to accelerate, the maturity of such Indebtedness, or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated
maturity;
SECTION 9.07. BANKRUPTCY. Xxxxxx or any other Consolidated
Company shall commence a voluntary case concerning itself under the Bankruptcy
Code; or an involuntary case for bankruptcy is commenced against any
Consolidated Company and the petition is not controverted within ten (10) days,
or is not dismissed within sixty (60) days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or any substantial part of the property of any Consolidated
Company; or any Consolidated Company commences proceedings of its own
bankruptcy or to be granted a suspension of payments or any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction,
whether now or hereafter in effect, relating to any Consolidated Company or
there is commenced against any Consolidated Company any such proceeding that
remains undismissed for a period of sixty (60) days; or any Consolidated
Company is adjudicated insolvent or bankrupt; or any order of relief or other
order approving any such case or proceeding is entered; or any Consolidated
Company suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of sixty
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(60) days; or any Consolidated Company makes a general assignment for the
benefit of creditors; or any Consolidated Company shall fail to pay, or shall
state that it is unable to pay, or shall be unable to pay, its debts generally
as they become due; or any Consolidated Company shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts; or
any Consolidated Company shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
SECTION 9.08. ERISA. A Plan of a Consolidated Company or a Plan
subject to Title IV of ERISA of any of its ERISA Affiliates
(a) shall fail to be funded in accordance with the
minimum funding standard required by applicable law, the terms of such
Plan, Section 412 of the Tax Code or Section 302 of ERISA for any plan
year or a waiver of such standard is sought or granted with respect to
such Plan under applicable law, the terms of such Plan or Section 412
of the Tax Code or Section 303 of ERISA; or
(b) is terminated, or is the subject of termination
proceedings under applicable law or the terms of such Plan; or
(c) shall require a Consolidated Company to provide
security under applicable law, the terms of such Plan, Section 412 of
the Tax Code or Section 306 or 307 of ERISA;
and any such failure, waiver, termination or other event shall result in a
liability of a Consolidated Company to the PBGC or a Plan that would have a
Materially Adverse Effect.
SECTION 9.09. MONEY JUDGMENT. A judgment or order for the
payment of money in excess of $1,000,000 (for which the Consolidated Company is
not insured) or otherwise having a Materially Adverse Effect shall be rendered
against any Consolidated Company and such judgment or order shall continue
unsatisfied (in the case of a money judgment) and in effect for a period of
thirty (30) days during which execution shall not be effectively stayed or
deferred (whether by action of a court, by agreement or otherwise);
SECTION 9.10. CHANGE IN CONTROL OF XXXXXX. (a) Any "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act),
other than Xxx Xxxxx or his estate, heirs or beneficiaries, shall become the
"beneficial owner(s)" (as defined in said Rule 13d-3) of more than twenty five
percent (25%) of the shares of the outstanding common stock of Xxxxxx entitled
to vote for members of Xxxxxx'x board of directors, or (b) any event or
condition shall occur or exist that, pursuant to the terms of any Change in
Control Provision, requires or permits the holder(s) of
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Indebtedness of any Consolidated Company to require that such Indebtedness be
redeemed, repurchased, defeased, prepaid or repaid, in whole or in part, or the
maturity of such Indebtedness to be accelerated in any respect;
SECTION 9.11. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall
exist or occur any "Event of Default" as provided under the terms of any other
Credit Document, or any Credit Document ceases to be in full force and effect or
the validity or enforceability thereof is disaffirmed by or on behalf of Xxxxxx
or any other Credit Party, or at any time it is or becomes unlawful for Xxxxxx
or any other Credit Party to perform or comply with its obligations under any
Credit Document, or the obligations of Xxxxxx or any other Credit Party under
any Credit Document are not or cease to be legal, valid and binding on Xxxxxx or
any such Credit Party;
SECTION 9.12. ATTACHMENTS. An attachment or similar action shall
be made on or taken against any of the assets of any Consolidated Company with
an Asset Value exceeding $1,000,000 in aggregate and is not removed, suspended
or enjoined within thirty (30) days of the same being made or any suspension or
injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Agent may, and upon the written or telex request
of the Required Lenders, shall, by written notice to Xxxxxx, take any or all of
the following actions, without prejudice to the rights of the Agent, any Lender
or the holder of any Note to enforce its claims against Xxxxxx or any other
Credit Party: (a) declare the Total Commitments terminated, whereupon the pro
rata Total Commitments of each Lender shall terminate immediately and any
commitment fee shall forthwith become due and payable without any other notice
of any kind; and (b) declare the principal of and any accrued interest on the
Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become, forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by Xxxxxx; provided,
that, if an Event of Default specified in Section 9.07 shall occur, the result
which would occur upon the giving of written notice by the Agent to any Credit
Party, as specified in clauses (a) and (b) of this Section, shall occur
automatically without the giving of any such notice.
SECTION 9.13. ADJUSTMENT TO PRO RATA SHARE. Upon the occurrence
of any Event of Default, the Pro Rata Share of each Lender shall be amended to
the amount designated opposite such Lender's name below in the following chart
in order to recognize the outstanding indebtedness evidenced by (a) the TNB Five
Million Dollar Revolving Credit Facility, (b) the TNB Letter of Credit Facility,
(c) the First National Bank of Louisville Letter of Credit Facility, and (d) the
First American National Bank Letter of Credit Facility:
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Third National Bank
in Nashville: TNB Adjusted Pro Rata Share as of
the occurrence of such Event of
Default.
First National Bank
of Louisville: First National Bank of Louisville
Adjusted Pro Rata Share as of the
occurrence of such Event of Default.
First American National Bank: First American National Bank
Adjusted Pro Rata Share as of the
occurrence of such Event of Default.
NationsBank of Texas, N.A.: NationsBank of Texas, N.A. Adjusted
Pro Rata Share as of the occurrence
of such Event of Default.
Creditanstalt - Bankverein: Creditanstalt - Bankverein Adjusted
Pro Rata Share as of the occurrence
of such Event of Default.
ARTICLE X.
THE AGENT
SECTION 10.01. APPOINTMENT OF AGENT. Each Lender hereby
designates TNB as Agent to administer all matters concerning the Loans and to
act as herein specified. Each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of a Note shall be deemed irrevocably to
authorize, the Agent to take such actions on its behalf under the provisions of
this Agreement, the other Credit Documents and all other instruments and
agreements referred to herein or therein, and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to
or required of the Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Agent may perform any of its duties
hereunder by or through its agents or employees.
SECTION 10.02. AUTHORIZATION OF AGENT WITH RESPECT TO THE
SECURITY DOCUMENTS. (a) Each Lender hereby authorizes the Agent to enter into
each of the Security Documents substantially in the form attached hereto, and
to take all action contemplated thereby. All rights and remedies under the
Security Documents may be exercised
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by the Agent for the benefit of the Agent and the Lenders and the other
beneficiaries thereof upon the terms thereof. The Lenders further agree that
the Agent may assign its rights and obligations under any of the Security
Documents to any Affiliate of the Agent or to any trustee, if necessary or
appropriate under applicable law, which assignee in each such case shall
(subject to compliance with any requirements of applicable law governing the
assignment of such Security Documents) be entitled to all the rights of the
Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any
Security Document, the Agent shall have the right to grant or withhold any
consent, exercise any remedy, make any determination or direct any action by
the Agent under such Security Document, the Agent shall act in respect of such
consent, exercise of remedies, determination or action, as the case may be,
with the consent of and at the direction of the Required Lenders; provided,
however, that no such consent of the Required Lenders shall be required with
respect to any consent, determination or other matter that is, in the Agent's
reasonable judgment, ministerial or administrative in nature. In each
circumstance where any consent of or direction from the Required Lenders is
required, the Agent shall send to the Lenders a notice setting forth a
description in reasonable detail of the matter as to which consent or direction
is requested and the Agent's proposed course of action with respect thereto. In
the event the Agent shall not have received a response from any Lender within
five (5) Business Days after such Lender's receipt of such notice, such Lender
shall be deemed to have agreed to the course of action proposed by the Agent.
SECTION 10.03. NATURE OF DUTIES OF AGENT. The Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the other Credit Documents. None of the Agent nor any of its respective
officers, directors, employees or agents shall be liable for any action taken
or omitted by it as such hereunder or in connection herewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the Agent
shall be ministerial and administrative in nature; the Agent shall not have by
reason of this Agreement a fiduciary relationship in respect of any Lender; and
nothing in this Agreement, express or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein.
SECTION 10.04. LACK OF RELIANCE ON THE AGENT. (a) Independently
and without reliance upon the Agent, each Lender, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Credit Parties in
connection with the taking or not taking of any action in connection herewith,
and (ii) its own appraisal of the creditworthiness of the Credit Parties, and,
except as expressly provided in this Agreement, the Agent
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shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or
at any time or times thereafter.
(b) The Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreement, the Word, Incorporated Pledge Agreement, or any other
documents contemplated hereby or thereby, or the financial condition of the
Credit Parties, or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement, the Notes, the Guaranty Agreement, the Word, Incorporated Pledge
Agreement, or the other documents contemplated hereby or thereby, or the
financial condition of the Credit Parties or the existence or possible
existence of any Default or Event of Default; provided, however, to the extent
that the Agent has been advised that a Lender has not received any information
formally delivered to the Agent pursuant to Section 7A.07, the Agent shall
deliver or cause to be delivered such information to such Lender.
SECTION 10.05. CERTAIN RIGHTS OF THE AGENT. If the Agent shall
request instructions from the Required Lenders with respect to any action or
actions (including the failure to act) in connection with this Agreement, the
Agent shall be entitled to refrain from such act or taking such act, unless and
until the Agent shall have received instructions from the Required Lenders; and
the Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
SECTION 10.06. RELIANCE BY AGENT. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cable gram, radiogram, order or other documentary, teletransmission or
telephone message believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. The Agent may consult with legal
counsel (including counsel for any Credit Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
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SECTION 10.07. INDEMNIFICATION OF AGENT. To the extent the Agent
is not reimbursed and indemnified by the Credit Parties, each Lender will
reimburse and indemnify the Agent, ratably according to the respective amounts
of the Loans outstanding under all Facilities (or if no amounts are
outstanding, ratably in accordance with the Total Commitments), in either case,
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including counsel fees
and disbursements) or disbursements of any kind or nature whatsoever that may
be imposed on, incurred by or asserted against the Agent in performing its
duties hereunder, in any way relating to or arising out of this Agreement or
the other Credit Documents; provided that no Lender shall be liable to the
Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct; provided
further, that a Lender shall not be liable to the Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's negligence,
if such Lender shall have given the Agent timely written notice of the Lender's
objections to the act or omission constituting negligence on the Agent's part.
SECTION 10.08. THE AGENT IN ITS INDIVIDUAL CAPACITY. With respect
to its obligation to lend under this Agreement, the Loans made by it and the
Notes issued to it, the Agent shall have the same rights and powers hereunder
as any other Lender or holder of a Note and may exercise the same as though it
were not performing the duties of Agent specified herein; and the terms
"Lenders," "Required Lenders," "holders of Notes," or any similar terms shall,
unless the context clearly otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any Affiliate of the Consolidated
Companies as if it were not performing the duties specified herein as Agent,
and may accept fees and other consideration from the Consolidated Companies for
services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
SECTION 10.09. HOLDERS OF NOTES. The Agent may deem and treat the
payee of any Note as the owner thereof for all purposes hereof unless and until
a written notice of the assignment or transfer thereof shall have been filed
with the Agent. Any request, authority or consent of any Person who, at the
time of making such request or giving such authority or consent, is the holder
of any Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
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SECTION 10.10. SUCCESSOR AGENT. (a) The Agent may resign at any
time by giving written notice thereof to the Lenders and Xxxxxx and may be
removed at any time with or without cause by the Required Lenders; provided,
however, the Agent may not resign or be removed until a successor Agent has
been appointed and shall have accepted such appointment. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent subject to Xxxxxx'x prior written approval. If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within thirty (30) days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the
retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint
a successor Agent subject to Xxxxxx'x prior written approval, which shall be a
bank that maintains an office in the United States, or a commercial bank
organized under the laws of the United States of America or any State thereof,
or any Affiliate of such bank, having a combined capital and surplus of at
least $100,000,000. If at any time TNB is removed as a Lender pursuant to
Section 11.06(g), TNB shall simultaneously resign as Agent.
(b) Upon the acceptance of any appointment as the Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article X shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth
opposite such party's name on the signature pages hereof, or such other address
or applicable teletransmission number as such party may hereafter specify by
notice to the Agent and Xxxxxx. Each such notice, request or other
communication shall be effective (a) if given by telex, when such telex is
transmitted to the telex number specified in this Section 11.01 and the
appropriate answerback is received, (b) if given by mail, seventy-two (72)
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (c) if given by telecopy, when
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such telecopy is transmitted to the telecopy number specified in this Section
11.01 and the appropriate confirmation is received, or (d) if given by any
other means (including, without limitation, by air courier), when delivered or
received at the address specified in this Section 11.01; provided that notices
to the Agent shall not be effective until received.
SECTION 11.02. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the other Credit Documents, nor consent to any
departure by any Credit Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders do any of the following:
(a) waive any of the conditions specified in Section 5A.01 or 5A.02 or amend
either such Section or, for the purposes of such Sections, the definition of
any term contained in, or otherwise material to, either Section, (b) increase
any of the Total Commitments or other contractual obligations to Xxxxxx under
this Agreement or amend Section 2.09 or the definition of the Conversion Date,
(c) reduce the principal of, or interest on, the Notes or any fees hereunder,
(d) postpone any date fixed for the payment in respect of principal of, or
interest on, the Notes or any fees hereunder, (e) change the percentage of any
of the Total Commitments or of the aggregate unpaid principal amount of the
Notes, or the number or identity of Lenders that shall be required for the
Lenders or any of them to take any action hereunder, (f) agree to release any
of the outstanding common stock of Word, Incorporated (except pursuant to the
terms of the Word, Incorporated Pledge Agreement) from the Lien of the Security
Documents to the extent securing the Obligations or to release any Guarantor
from its obligations under any Guaranty Agreement, (g) modify the definition of
"Required Lenders," or (h) modify this Section 11.02. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required hereinabove to take such
action, affect the rights or duties of the Agent under this Agreement or under
any other Credit Document.
SECTION 11.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of the Agent, any Lender or any holder of a Note in
exercising any right or remedy hereunder or under any other Credit Document,
and no course of dealing between any Credit Party and the Agent, any Lender or
the holder of any Note shall operate as a waiver thereof, nor shall any single
or partial exercise of any right or remedy hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right or remedy hereunder or thereunder. The rights and remedies herein
expressly provided are cumulative and not exclusive of any rights or remedies
that the Agent, any Lender or the holder of any Note would otherwise have. No
notice to or demand on any
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Credit Party not required hereunder or under any other Credit Document in any
case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Agent, the Lenders or the holder of any Note to any other or further action in
any circumstances without notice or demand.
SECTION 11.04. PAYMENT OF EXPENSES, ETC. Xxxxxx shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the Agent
in the administration (both before and after the execution hereof and including
reasonable expenses actually incurred relating to advice of counsel as to the
rights and duties of the Agent and the Lenders with respect thereto) of, and in
connection with the preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the other
Credit Documents and the documents and instruments referred to therein, and any
amendment, waiver or consent relating thereto (including, without limitation,
the reasonable fees actually incurred and disbursements of counsel for the
Agent), and in the case of enforcement of this Agreement or any Credit Document
after an Event of Default, all such reasonable, out-of-pocket costs and
expenses (including, without limitation, the reasonable fees actually incurred
and disbursements of counsel), for any of the Lenders; provided, however, that
in no event shall Xxxxxx be obligated to pay any attorneys' fees and related
expenses incurred by any Lender other than Agent prior to the occurrence of an
Event of Default;
(b) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.07(b), pay and hold each of the Lenders harmless from
and against any and all present and future stamp, documentary, and other
similar Taxes with respect to this Agreement, the Notes and any other Credit
Documents, any collateral described therein, or any payments due thereunder,
and save each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay or omission to pay such Taxes; and
(c) indemnify the Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold each
of them harmless against, any and all costs, losses, liabilities, claims,
damages or expenses incurred by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee") arising out of or by reason of
any investigation, litigation or other proceeding related to any actual or
proposed use of the proceeds of any of the Loans or any Credit Party's entering
into and performing of the Agreement, the Notes or the other Credit Documents,
including, without limitation, the reasonable fees actually incurred and
disbursements of counsel
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incurred in connection with any such investigation, litigation or other
proceeding; provided, however, Xxxxxx shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct;
(d) without limiting the indemnities set forth in Section
11.04(c), indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement, cleanup,
investigative, closure and monitoring costs), losses, claims (including claims
for contribution or indemnity and including the cost of investigating or
defending any claim and whether or not such claim is ultimately defeated, and
whether such claim arose before, during or after any Credit Party's ownership,
operation, possession or control of its business, property or facilities or
before, on or after the date hereof, and including also any amounts paid
incidental to any compromise or settlement by the Indemnitee or Indemnitees to
the holders of any such claim), lawsuits, liabilities, obligations, actions,
judgments, suits, disbursements, encumbrances, liens, damages (including
without limitation damages for contamination or destruction of natural
resources), penalties and fines of any kind or nature whatsoever (including
without limitation in all cases the reasonable fees actually incurred, other
charges and disbursements of counsel in connection therewith) incurred,
suffered or sustained by that Indemnitee based upon, arising under or relating
to Environmental Laws based on, arising out of or relating to in whole or in
part, the existence or exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Credit Document or any related documents.
If and to the extent that the obligations of Xxxxxx under this Section 11.04
are unenforceable for any reason, Xxxxxx hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations that is
permissible under applicable law.
SECTION 11.05. RIGHT OF SETOFF. In addition to and not in limitation
of all rights of offset that any Lender or other holder of a Note may have
under applicable law, each Lender or other holder of a Note shall, upon the
occurrence of any Event of Default and whether or not such Lender or such
holder has made any demand or any Credit Party's obligations are matured, have
the right to appropriate and apply to the payment of any Credit Party's
obligations hereunder and under the other Credit Documents owed to such Lender
or other holder of a Note, all deposits of any Credit Party (general or
special, time or demand, provisional or final) then or thereafter held by and
other Indebtedness or property then or thereafter owing by such Lender or other
holder to any Credit Party, whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly notify Xxxxxx of any offset
hereunder.
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SECTION 11.06. BENEFIT OF AGREEMENT. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided that Xxxxxx may not
assign or transfer any of its interest hereunder without the prior written
consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may assign all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of any
of its Total Commitments and the Loans at the time owing to it and the Notes
held by it) to any Eligible Assignee; provided, however, that (i) the Agent and
Xxxxxx must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld) unless such assignment is to an Affiliate
of the assigning Lender, (ii) the amount of any of the Total Commitments, in
the case of the Revolving Loan Commitments, or Loans, in the case of assignment
of Term Loans, of the assigning Lender subject to each assignment (determined
as of the date the assignment and acceptance with respect to such assignment is
delivered to the Agent) shall not be less than $5,000,000, and (iii) the
parties to each such assignment shall execute and deliver to the Agent an
Assignment and Acceptance, together with a Note or Notes subject to such
assignment and, unless such assignment is to an Affiliate of such Lender, a
processing and recordation fee of $2500 payable to Agent by such Eligible
Assignee. Xxxxxx shall not be responsible for such processing and recordation
fee or any costs or expenses incurred by any Lender or the Agent in connection
with such assignment. From and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, the assignee thereunder shall be a
party hereto and to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement.
Notwithstanding the foregoing, the assigning Lender must retain after the
consummation of such Assignment and Acceptance, a minimum aggregate amount of
Total Commitments or Term Loans, as the case may be, of $10,000,000; provided,
however, no such minimum amount shall be required with respect to any such
assignment made at any time there exists an Event of Default hereunder. Within
five (5) Business Days after receipt of the notice and the Assignment and
Acceptance, Xxxxxx, at its own expense, shall execute and deliver to the Agent,
in exchange for the surrendered Note or Notes, a new Note or Notes to the order
of such assignee in a principal amount equal to the applicable Total
Commitments or Term Loans assumed by it pursuant to such Assignment and
Acceptance and new Note or Notes to the assigning Lender in the amount of its
retained Total Commitments or amount of its retained Term Loans. Such new Note
or Notes shall be dated the date of the surrendered Note or Notes that
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they replace, and shall otherwise be in substantially the forms of the
appropriate Notes attached hereto.
(d) Each Lender may, without the consent of Xxxxxx or the Agent,
sell participations to one or more banks or other entities in all or a portion
of its post-assignment rights and obligations under this Agreement (including
all or a portion of its Total Commitments in the Loans owing to it and the
Notes held by it), provided, however, that (i) no Lender may sell a
participation in its aggregate Total Commitments or Term Loans (after giving
effect to any permitted assignment hereof) in an amount in excess of fifty
percent (50%) of such aggregate Total Commitments or Term Loans and any such
Lender must retain after consummation of the sale of such participation a
minimum aggregate amount of Total Commitments or Term Loans, as the case may
be, of $10,000,000, provided, however, sales of participations to an Affiliate
of such Lender shall not be included in such calculations; provided, however,
no such limitation shall be applicable to any such participation sold at any
time there exists an Event of Default hereunder, (ii) such Lender's obligations
under this Agreement shall remain unchanged, (iii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iv) the participating bank or other entity shall not be entitled
to the benefit (except through its selling Lender) of the cost protection
provisions contained in Article IV of this Agreement, and (v) Xxxxxx and the
Agent and other Lenders shall continue to deal solely and directly with each
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Credit Documents, and such Lender shall retain the sole
right to enforce the obligations of Xxxxxx relating to the Loans and to approve
any amendment, modification or waiver of any provisions of this Agreement. Any
Lender selling a participation hereunder shall provide prompt written notice to
Xxxxxx of the name of such participant.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation, pursuant
to this Section 11.06(e), disclose to the assignee or participant or proposed
assignee or participant any information relating to Xxxxxx or the other
Consolidated Companies furnished to such Lender by or on behalf of Xxxxxx or
any other Consolidated Company. With respect to any disclosure of confidential,
non-public, proprietary information, such proposed assignee or participant
shall agree to use the information only for the purpose of making any necessary
credit judgments with respect to the Facilities and not to use the information
in any manner prohibited by any law, including without limitation, the
securities laws of the United States. The proposed participant or assignee
shall agree not to disclose any of such information except (i) to directors,
employees, auditors or counsel to whom it is necessary to show such
information, each of whom shall be informed of the confidential nature of the
information, (ii) in any statement or
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testimony pursuant to a subpoena or order by any court, governmental body or
other agency asserting jurisdiction over such entity, or as otherwise required
by law (provided prior notice is given to Xxxxxx and the Agent unless otherwise
prohibited by the subpoena, order or law), and (iii) upon the request or demand
of any regulatory agency or authority with proper jurisdiction. The proposed
participant or assignee shall further agree to return all documents or other
written material and copies thereof received from any Lender, the Agent or
Xxxxxx relating to such confidential information unless otherwise properly
disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its
rights in this Agreement and the Notes issued to it to a Federal Reserve Bank;
provided that no such assignment shall release the Lender from any of its
obligations hereunder.
(g) If (i) any Taxes referred to in Section 4.07(b) have been
levied or imposed so as to require withholdings or deductions by Xxxxxx and
payment by Xxxxxx of additional amounts to any Lender as a result thereof, (ii)
any Lender shall make demand for payment of any material additional amounts as
compensation for increased costs pursuant to Section 4.10 or for its reduced
rate of return pursuant to Section 4.16, or (iii) any Lender shall decline to
consent to a modification or waiver of the terms of this Agreement or the other
Credit Documents requested by Xxxxxx, then and in such event, upon request from
Xxxxxx delivered to such Lender and the Agent, such Lender shall assign, in
accordance with the provisions of Section 11.06(c), all of its rights and
obligations under this Agreement and the other Credit Documents to another
Lender or an Eligible Assignee selected by Xxxxxx, in consideration for the
payment by such assignee to the Lender of the principal of, and interest on,
the outstanding Loans accrued to the date of such assignment, and the
assumption of such Lender's Total Commitment hereunder, together with any and
all other amounts owing to such Lender under any provisions of this Agreement
or the other Credit Documents accrued to the date of such assignment.
SECTION 11.07. GOVERNING LAW; SUBMISSION TO JURISDICTION. (A) THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND UNDER THE
NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF
TENNESSEE.
(B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE CHANCERY COURTS
FOR DAVIDSON COUNTY, TENNESSEE OR IN THE FEDERAL COURTS FOR THE MIDDLE DISTRICT
OF TENNESSEE, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, XXXXXX HEREBY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND XXXXXX HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT
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LIMITATION, 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
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(C) XXXXXX IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO XXXXXX AT
ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH
MAILING.
(d) Nothing herein shall affect the right of the Agent, any
Lender, any holder of a Note or any Credit Party to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Xxxxxx in any other jurisdiction.
SECTION 11.08. INDEPENDENT NATURE OF LENDERS, RIGHTS. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 11.09. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
SECTION 11.10. EFFECTIVENESS; SURVIVAL. (a) This Agreement shall
become effective on the date on which all of the parties hereto shall have
executed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Agent pursuant to Section 11.01 or, in the case of
the Lenders, shall have given to the Agent written or telex notice (actually
received) that the same has been executed and mailed to them.
(b) The obligations of Xxxxxx under Sections 4.07(b), 4.10, 4.12,
4.16 and 11.04 hereof shall survive the payment in full of the Notes after the
Final Maturity Date. All representations and warranties made herein, in the
certificates, reports, notices and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement, the other
Credit Documents, and such other agreements and documents, the making of the
Loans hereunder, and the execution and delivery of the Notes.
SECTION 11.11. SEVERABILITY. In case any provision in or obligation
under this Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or
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obligation in any other jurisdiction, shall not in any way be affected or
impaired thereby.
SECTION 11.12. INDEPENDENCE OF COVENANTS. All covenants hereunder
shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitation of, another covenant,
shall not avoid the occurrence of a Default or an Event of Default if such
action is taken or condition exists.
SECTION 11.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX
LAWS. If (a) any preparation of the financial statements referred to in Section
7A.07 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) (other than changes
mandated by FASB-106) result in a material change in the method of calculation
of financial covenants, standards or terms found in this Agreement, (b) there
is any change in Xxxxxx'x fiscal quarter or fiscal year, or (c) there is a
material change in federal tax laws that materially affects any of the
Consolidated Companies' ability to comply with the financial covenants,
standards or terms found in this Agreement, Xxxxxx and the Required Lenders
agree to enter into negotiations in order to amend such provisions so as to
equitably reflect such changes with the desired result that the criteria for
evaluating any of the Consolidated Companies' financial condition shall be the
same after such changes as if such changes had not been made. Unless and until
such provisions have been so amended, the provisions of this Agreement shall
govern.
SECTION 11.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The headings of
the several Sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all
prior agreements, representations and understandings related to such subject
matters.
SECTION 11.15. INTEREST. The parties to this Agreement intend to
conform strictly to applicable usury laws as presently in effect. Accordingly,
if the transactions contemplated hereby would be usurious under applicable law
(including the laws of the United States of America and the State of
Tennessee), then, in that event, notwithstanding anything to the contrary in
any Credit Document or agreement executed in connection with or as security for
any of the Notes, Xxxxxx and Lenders agree as follows: (a) the aggregate of all
consideration that constitutes interest under applicable law
-78-
85
which is contracted for, charged or received under any of the Notes, this
Agreement or any of the other Credit Documents or agreements, or otherwise in
connection with the Notes, shall under no circumstances exceed the maximum
lawful rate of interest permitted by applicable law, and any excess shall be
credited on the applicable Notes by the holder thereof (or, if the Notes shall
have been paid in full, refunded to Xxxxxx); and (b) in the event that the
maturity of any of the Notes is accelerated by reason of an election of the
holder resulting from any Event of Default under this Agreement or otherwise,
or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum
amount of interest permitted by applicable law, and excess interest, if any,
for which this Agreement provides, or otherwise, shall be cancelled
automatically as of the date of such acceleration or prepayment and, if
previously paid, shall be credited on the applicable Notes (or, if the Notes
shall have been paid in full, refunded to Xxxxxx).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Nashville, Tennessee, by their duly
authorized officers as of the day and year first above written.
Address for Notices: XXXXXX XXXXXX, INC.
X.X. Xxx 000000
Xxxxxxxxx, Xxxxxxxxx 00000 By:
Attention: Vice President -------------------------------
and Chief Financial Title:
Officer ----------------------------
-79-
86
Address for Notices: THIRD NATIONAL BANK IN NASHVILLE,
AS AGENT
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000 By:
Attention: Xxxx Xxxxxx -------------------------------
Title:
----------------------------
Telex No.:
----------------
Answerback:
-------------
Telecopy No.: 000-000-0000
Payment Office:
--------------
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
-80-
87
Address for Notices: THIRD NATIONAL BANK IN NASHVILLE
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000 By:
Attention: Xxxx Xxxxxx --------------------------------
Title:
----------------------------
Telex No.:
----------------
Answerback:
-------------
Telecopy No.: 000-000-0000
Payment Office:
--------------
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
REVOLVING LOAN COMMITMENT: $19,500,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 26%
-81-
88
Address for Notices: FIRST NATIONAL BANK OF LOUISVILLE
000 Xxxxx Xxxxx Xx.
0xx Xxxxx By:
Xxxxxxxxxx, XX 00000 --------------------------------
Attention: Xxxxxx X. Xxxxx
Title:
----------------------------
Telex No.:
----------------
Answerback:
-------------
Telecopy No.: 000-000-0000
Payment Office:
--------------
000 Xxxxx Xxxxx Xx.
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
REVOLVING LOAN COMMITMENT: $16,500,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 22%
-82-
89
Address for Notices: FIRST AMERICAN NATIONAL BANK
National Division
Xxxxxxxxx, XX 00000-0000 By:
Attention: Xxxxx X. Xxxx -------------------------------
Vice President Title:
----------------------------
Telex No.: 6823023
Answerback:
-------------
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
Payment Office:
--------------
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Fernisa Joy
Commercial Loan Operations
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
REVOLVING LOAN COMMITMENT: $15,000,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 20%
-83-
90
Address for Notices: NATIONSBANK OF TEXAS, N.A.
-------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000 By:
-------------------------------
or Title:
----------------------------
X.X. Xxx 000000
Xxxxxx, XX 00000
Attention: Xxx Xxxxx
Telex No.: 6829317
Answerback: NationsBK DAL
Telecopy No.: 000-000-0000
Payment Office:
--------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
or
X.X. Xxx 000000
Xxxxxx, XX 00000
Attention: Xxx Xxxxx
REVOLVING LOAN COMMITMENT: $12,750,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 17%
-84-
91
Address for Notices: CREDITANSTALT - BANKVEREIN
-------------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx By:
-------------------------------
Telecopy No.: 212/856-1234 Title:
----------------------------
With a copy to: By:
-------------- -------------------------------
Two Ravinia Drive Title:
----------------------------
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy No.: 404/390-1851
Payment Office:
--------------
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxx
Telephone No.: 212/000-0000
Telecopy No.: 212/856-1234
REVOLVING LOAN COMMITMENT: $11,250,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 15%
-85-
92
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (this "First Amendment") is
made as of the 26th day of February, 1993 by and between XXXXXX XXXXXX, INC., a
Tennessee corporation ("Xxxxxx"), THIRD NATIONAL BANK IN NASHVILLE, a national
banking association ("TNB"), the other banks and lending institutions listed on
the signature pages hereof and any assignees of TNB or such other banks and
lending institutions that become "Lenders" as provided herein (TNB, and such
other banks, lending institutions and assignees are referred to collectively
herein as the "Lenders") , and THIRD NATIONAL BANK IN NASHVILLE, in its
capacity as agent (the "Agent") for the Lenders and each successor agent for
such Lenders as may be appointed from time to time pursuant to Article X of the
Credit Agreement dated as of November 30, 1992 by and between Xxxxxx, Lenders
and Agent (as it may be amended from time to time, the "Credit Agreement").
W I T N E S S E T H:
WHEREAS, Xxxxxx, Lenders and Agent entered into the Credit Agreement to
evidence the extension of certain credit facilities to Xxxxxx as more
particularly described in the Credit Agreement; and
WHEREAS, Xxxxxx has represented to Lenders and Agent that Xxxxxx
Acquisition Corp. ("Xxxxxx Acquisition") is a shell corporation that was formed
for the sole and exclusive purpose of the acquisition and subsequent spin-off
of Xxxx-Xxxx, Inc. and has been used for no other purpose since that
transaction; and
WHEREAS, Xxxxxx has further represented to Lenders and Agent that
Xxxxxx Acquisition has no employees, conducts no business of any kind, and that
no Xxxxxx funds of any nature pass through any accounts of Xxxxxx Acquisition;
and
WHEREAS, Xxxxxx has further represented to Lenders and Agent that the
status of Xxxxxx Acquisition will remain the same and that no Xxxxxx assets or
funds of any nature will be diverted into Xxxxxx Acquisition without the prior
written consent of Agent; and
WHEREAS, based upon these representations of Xxxxxx, Lenders, Xxxxxx
and Agent have agreed to amend the Credit Agreement to add Xxxxxx Acquisition
as a party to Schedule 7A.01, thereby excluding it from certain provisions of
the Credit Agreement.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable considerations, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby agree as follows:
1. Schedule 7A.01 of the Credit Agreement is hereby amended to add
Xxxxxx Acquisition as a Subsidiary under Triunity, Inc., and to reflect Xxxxxx
Acquisition's Range of Net Worth as Zero.
93
2. This First Amendment may be executed in multiple counterparts,
and all such executed counterparts shall constitute the same agreement. It
shall be necessary to account for only one such counterpart in proving the
existence or terms of this First Amendment.
3. Except as hereby amended, the Credit Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed and delivered by their duly authorized officers as of the
day and year first above written.
Address for Notices: XXXXXX XXXXXX, INC.
-------------------
X.X. Xxx 000000 By: /s/ Xxx X. Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 --------------------------------
Attention: Vice President Title:
and Chief Financial -----------------------------
Officer
Address for Notices: THIRD NATIONAL BANK IN
------------------- NASHVILLE, AS AGENT
X.X. Xxx 000000 By: /s/ J. Xxxx Xxxxxx
Nashville, TN 37230-5110 --------------------------------
Attention: Xxxx Xxxxxx Title:
-----------------------------
Address for Notices: THIRD NATIONAL BANK IN NASHVILLE
-------------------
P.O. Box 305110 By: /s/ J. Xxxx Xxxxxx
Nashville, TN 37230-5110 --------------------------------
Attention: Xxxx Xxxxxx Title:
-----------------------------
Address for Notices: FIRST NATIONAL BANK OF
------------------- LOUISVILLE
000 Xxxxx Xxxxx Xx. By: /s/ Xxxxxx X. Xxxxx
7th Floor --------------------------------
Xxxxxxxxxx, XX 00000 Title:
Attention: Xxxxxx X. Xxxxx -----------------------------
94
Address for Notices: FIRST AMERICAN NATIONAL BANK
-------------------
National Division By: /s/ Xxxxx X. Xxxx
Xxxxxxxxx, XX 00000-0000 --------------------------------
Attention: Xxxxx X. Xxxx Title:
Vice President -----------------------------
Address for Notices: NATIONSBANK OF TEXAS, N.A.
-------------------
000 Xxxx Xxxxxx, 00xx Xxxxx By: /s/ Xxx X. Xxxxx
Dallas, TX 75283 --------------------------------
Title:
-----------------------------
or
X.X. Xxx 000000
Xxxxxx, XX 00000
Attention: Xxx Xxxxx
Address for Notices: CREDITANSTALT - BANKVEREIN
-------------------
000 Xxxx Xxxxxx, 00xx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 --------------------------------
Attention: Xxxxxx X. Xxxxxxxx Title:
-----------------------------
With a copy to: By: /s/ Xxxxxx X. X'Xxxx
-------------- --------------------------------
Two Ravinia Drive Title:
Suite 1680 ------------------------------
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
95
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Second Amendment")
dated this 19th day of September, 1994, by and among XXXXXX XXXXXX, INC., a
Tennessee corporation ("Xxxxxx"), THIRD NATIONAL BANK IN NASHVILLE, a national
banking association ("TNB"), the other banks and lending institutions listed on
the signature pages hereof and any assignees of TNB or such other banks and
lending institutions that become "lenders" as provided herein (TNB and such
other banks, lending institutions and assignees are referred to collectively
herein as the "Lenders") and THIRD NATIONAL BANK IN NASHVILLE (the "Agent") in
its capacity as Agent for the Lenders and each successor agent for such Lenders
as may be appointed from time to time pursuant to Article X of the Credit
Agreement (as hereinafter defined).
W I T N E S S E T H :
WHEREAS, Xxxxxx, Lenders and Agent entered into a Credit Agreement
dated as of November 30, 1992 (the "Credit Agreement") governing the terms of
certain credit facilities more particularly described in the Credit Agreement;
and
WHEREAS, Xxxxxx has requested certain revisions to the Credit
Agreement, and Lenders and Agent have agreed to the revisions subject to the
terms and conditions of this Second Amendment;
NOW, THEREFORE, for and in consideration of the foregoing premises, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Section 7A.08(c) of the Credit Agreement is deleted in its entirety
and the following is substituted in lieu thereof:
(c) Funded Debt to Total Capital.
i) Maintain as of the last day of each fiscal quarter, a maximum
ratio of Funded Debt to Total Capital, calculated quarterly, as shown below for
each fiscal quarter ending during the fiscal quarters indicated:
Fiscal Ouarter Maximum Ratio
-------------- -------------
June 30, 1994 and thereafter .70:1.0
(ii) Maintain as of the last day of each fiscal year, a maximum
ratio of Funded Debt to Total Capital, calculated annually, as below for each
fiscal year ending during the fiscal years indicated:
96
Fiscal Year Maximum Ratio
----------- -------------
March 31, 1995 and thereafter .65:1.0
2. Except as herein modified and amended, the terms and
conditions of the Credit Agreement shall remain in full force and effect.
3. This Second Amendment shall be governed by and construed in
accordance with the laws of the State of Tennessee.
4. This Second Amendment is executed on the date set forth above,
but is to be effective as of June 29, 1994.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date first written above.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Title:
------------------------------------
THIRD NATIONAL BANK IN NASHVILLE, AS AGENT
By: /s/ J. Xxxx Xxxxxx
--------------------------------------
Title:
------------------------------------
THIRD NATIONAL BANK IN NASHVILLE
By: /s/ J. Xxxx Xxxxxx
--------------------------------------
Title:
------------------------------------
NATIONAL CITY BANK, KENTUCKY
By: /s/ X.X. Xxxx
--------------------------------------
Title:
------------------------------------
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Title:
------------------------------------
97
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxx X. Xxxxx
--------------------------------------
Title:
------------------------------------
CREDITANSTALT-BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Title:
------------------------------------
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Title:
------------------------------------
98
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "Amendment") dated this
23rd day of December, 1994, by and among XXXXXX XXXXXX, INC., a Tennessee
corporation ("Xxxxxx"), THIRD NATIONAL BANK IN NASHVILLE, a national banking
association ("TNB") , the other banks and lending institutions listed on the
signature pages hereof and any assignees of TNB or such other banks and lending
institutions that become "Lenders" as provided herein (TNB, and such other
banks, lending institutions and assignees are referred to collectively herein
as the "Lenders"), and THIRD NATIONAL BANK IN NASHVILLE (the "Agent") in its
capacity as agent for the Lenders and each successor agent for such Lenders as
may be appointed from time to time pursuant to Article X of the Credit
Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, Xxxxxx, Lenders and Agent entered into a Credit Agreement
dated as of November 30, 1992 (the "Credit Agreement") governing the terms of
certain credit facilities more particularly described in the Credit Agreement;
and
WHEREAS, Xxxxxx has requested certain revisions to the Credit
Agreement, and Lenders and Agent have agreed to the revisions subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. The definition of "Applicable Base Rate Margin" is hereby deleted
from pages 2 and 3 of the Credit Agreement and the following definition is
substituted in lieu thereof, effective as of December 23, 1994:
"Applicable Base Rate Margin" shall mean, with respect to all
outstanding Borrowings consisting of Base Rate Advances through March
31, 1994, one percent (1.00%) per annum, and with respect to all
outstanding Borrowings consisting of Base Rate Advances thereafter,
the higher relevant percentage indicated below based on the
percentages indicated for Xxxxxx'x Interest Coverage Ratio and
Leverage Ratio as determined on the date that is ninety (90) days
after the end of each fiscal year of Xxxxxx based upon the audited
financial statements for the immediately preceding fiscal year, with
such Applicable Base Rate Margin to be immediately effective as of
such date with respect to all outstanding amounts under the Revolving
Loans or Term Loans, as the case may be:
99
Interest
Revolving Term Coverage Leverage
Loans Loans Ratio Ratio
--------- ----- -------- --------
0.75% 1.0 % less than greater than
2.1:1.0 0.45:1.0
0.0 % 0.25% greater than less than or
or equal to equal to
2.0:1.0 and 0.45:1.0 and
less than greater than
3.2:1.0 0.35:1.0
0.0 % 0.0 % greater than less than or
or equal to equal to
3.2:1.0 0.35:1.0
Notwithstanding the foregoing, in the event Xxxxxx does not
deliver the audited financial statements for the immediately preceding
fiscal year in a manner that permits the determinations required in
the definition of Applicable Base Rate Margin within ninety (90) days
of the end of Xxxxxx'x fiscal year, commencing at the end of such
ninety (90) day period and continuing until such audited financial
statements are made available, the Applicable Base Rate Margin shall
be the highest rates applicable to Revolving Loans and Terms Loans, as
the case may be, as set forth in the preceding chart.
2. The definition of "Applicable LIBOR Rate Margin" is hereby deleted
from page 3 of the Credit Agreement and the following definition is substituted
in lieu thereof, effective as of December 23, 1994:
"Applicable LIBOR Rate Margin" shall mean, with respect to all
outstanding Borrowings consisting of LIBOR Advances through March 31,
1994, two and three quarters percent (2.75%) per annum, and with
respect to all outstanding Borrowings consisting of LIBOR Advances
thereafter, the higher relevant percentage indicated below based upon
the percentages indicated for Xxxxxx'x Interest Coverage Ratio and
Leverage Ratio as determined on the date that is ninety (90) days
after the end of each fiscal year of Xxxxxx based upon the audited
financial statements for the immediately preceding fiscal year, with
such Applicable LIBOR Rate Margin to be immediately effective as of
such date with respect to all outstanding amounts under the Revolving
Loans or Term Loans, as the case may be:
100
Interest
Revolving Term Coverage Leverage
Loans Loans Ratio Ratio
--------- ----- -------- --------
2.50% 2.75% less than greater than
2.0:1.0 0.45:1.0
1.50% 1.75% greater than less than or
or equal to equal to
2.0:1.0 and 0.45:1.0 and
less than greater than
3.2:1.0 0.35:1.0
1.0 % 1.25% greater than less than or
or equal to equal to
3.2:1.0 0.35:1.0
Notwithstanding the foregoing, in the event Xxxxxx does not
deliver the audited financial statements for the immediately preceding
fiscal year in a manner that permits the determinations required in
the definition of Applicable LIBOR Rate Margin within ninety (90) days
of the end of Xxxxxx' s fiscal year, commencing at the end of such
ninety (90) day period and continuing until such audited financial
statements are made available, the Applicable LIBOR Rate Margin shall
be the highest rates applicable to Revolving Loans and Terms Loans, as
the case may be, as set forth in the preceding chart.
3. The definition of "Conversion Date" is hereby amended to delete
the date "April 30, 1996" on the second line of the definition and to substitute
in lieu thereof the date "April 30, 1997."
4. The definition of "Final Maturity Date" is hereby amended to
delete the date "November 30, 1999" on the second line of the definition and
to substitute in lieu thereof the date "April 30, 2001."
5. Section 2.09 (c) of the Credit Agreement is hereby revised to
delete the phrase "Notice of Conversion" in the fourth line of this
subparagraph and to insert in lieu thereof the phrase "Notice of Extension."
6. Xxxxxx shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share (as defined in the Credit
Agreement) to each Lender, a one-time fee (the "Revision Fee") of $93,750.00,
representing one-eighth of one percent (.125%) of the original principal amount
of the Facilities (as defined in the Credit Agreement). One-half of the
Revision Fee shall be paid upon the execution of this Amendment, and the
remaining one-half shall be paid on January 3, 1995.
101
7. Except as herein modified and amended, the terms and conditions
of the Credit Agreement shall remain in full force and effect.
8. This Amendment shall be governed by and construed in accordance
with the laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
THIRD NATIONAL BANK IN NASHVILLE,
AS AGENT
By: /s/ J. Xxxx Xxxxxx
------------------------------
Title:
----------------------------
THIRD NATIONAL BANK IN NASHVILLE
By: /s/ J. Xxxx Xxxxxx
------------------------------
Title:
----------------------------
NATIONAL CITY BANK
By: /s/ X.X. Xxxx
------------------------------
Title:
----------------------------
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
------------------------------
Title:
----------------------------
000
XXXXXXXXXXX XX XXXXX, N.A.
By: /s/ Xxxxx Xxxxx
------------------------------
Title:
----------------------------
CREDITANSTALT - BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Title:
----------------------------
By:
-------------------------------
Title:
----------------------------
000
XXXXXX XXXXXXXXX TO CREDIT AGREEMENT
AND FIRST AMENDMENT TO REVOLVING CREDIT NOTES
This Fourth Amendment to Credit Agreement and First Amendment to
Revolving Credit Notes (this "Amendment") dated as of the 31st day of March
1995, by and among XXXXXX XXXXXX, INC., a Tennessee corporation ("Xxxxxx"),
THIRD NATIONAL BANK IN NASHVILLE, a national banking association ("TNB"), the
other banks and lending institutions listed on the signature pages hereof and
any assignees of TNB or such other banks and lending institutions that become
"Lenders" as provided herein (TNB, and such other banks, lending institutions
and assignees are referred to collectively herein as the "Lenders"), and THIRD
NATIONAL BANK IN NASHVILLE (the "Agent") in its capacity as agent for the
Lenders and each successor agent for such Lenders as may be appointed from time
to time pursuant to Article X of the Credit Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, Xxxxxx, Lenders and Agent entered into a Credit Agreement dated
as of November 30, 1992 (as amended, the "Credit Agreement") governing the terms
of the Loans (terms defined therein and not otherwise defined herein are being
used herein as therein defined); and
WHEREAS, Xxxxxx has requested that Lenders extend additional credit to
Xxxxxx in the amount of Twenty-Five Million and No/100 Dollars ($25,000,000.00),
and Lenders and Agent have agreed to the extension of additional funds subject
to the terms and conditions of this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. All references to the amount of "$19,500,000.00" in the
Revolving Credit Note dated November 30, 1992 executed by Xxxxxx to the order of
TNB are hereby deleted and the amount of "$26,000,000.00" is hereby substituted
in lieu thereof.
2. All references to the amount of "$16,500,000.00" in the
Revolving Credit Note dated November 30, 1992 executed by Xxxxxx to the order of
National City Bank, Kentucky (formerly known as First National Bank of
Louisville) are hereby deleted and the amount of "$22,000,000.00" is hereby
substituted in lieu thereof.
3. All references to the amount of "$15,000,000.00" in the
Revolving Credit Note dated November 30, 1992 executed by Xxxxxx to the order of
First American National Bank are hereby deleted and the amount of
"$20,000,000.00" is hereby substituted in lieu thereof.
104
4. All references to the amount of "$12,750,000.00" in the
Revolving Credit Note dated November 30, 1992 executed by Xxxxxx to the order of
NationsBank of Texas, N.A. are hereby deleted and the amount of "$17,000,000.00"
is hereby substituted in lieu thereof.
5. All references to the amount of "$11,250,000.00" in the
Revolving Credit Note dated November 30, 1992 executed by Xxxxxx to the order of
Creditanstalt - Bankverein are hereby deleted and the amount of "$15,000,000.00"
is hereby substituted in lieu thereof.
6. The amount of "$19,500,000" shown as TNB's portion of the
Revolving Loan Commitment next to its signature block in the Credit Agreement is
hereby deleted and the amount of "$26,000,000" is hereby substituted in lieu
thereof.
7. The amount of "$16,500,000" shown as National City Bank,
Kentucky's (formerly known as First National Bank of Louisville) portion of the
Revolving Loan Commitment next to its signature block in of the Credit Agreement
is hereby deleted and the amount of "$22,000,000" is hereby substituted in lieu
thereof.
8. The amount of "$15,000,000" shown as First American National
Bank's portion of the Revolving Loan Commitment next to its signature block in
the Credit Agreement is hereby deleted and the amount of "$20,000,000" is hereby
substituted in lieu thereof.
9. The amount of "$12,750,000" shown as NationsBank of Texas,
N.A.'s portion of the Revolving Loan Commitment next to its signature block in
the Credit Agreement is hereby deleted and the amount of "$17,000,000" is hereby
substituted in lieu thereof.
10. The amount of "$11,250,000" shown as Creditanstalt-Bankverein's
portion of the Revolving Loan Commitment next to its signature block in the
Credit Agreement is hereby deleted and the amount of "$15,000,000" is hereby
substituted in lieu thereof.
11. Xxxxxx shall pay a fee of $31,250 to the Agent as a fee for the
extension of additional credit to Xxxxxx in the principal amount of
$25,000,000. Such fee shall be shared pro rata among the Lenders.
12. The definition of "Credit Documents" in the Credit Agreement is
hereby amended to add the following phrase to the end of such definition: ", as
they may be amended and/or restated from time to time."
13. The definition of "Final Maturity Date" in the Credit Agreement
is hereby amended to delete the date "April 30, 2001, and to substitute in lieu
thereof the date "February 28, 2001."
14. The definition of "Revolving Credit Notes" in the Credit
Agreement is hereby amended to add the following phrase to the end
2
105
of such definition: ", as they may be amended and/or restated from time to
time."
15. The definition of "Term Notes" in the Credit Agreement is hereby
amended to add the following phrase to the end of such definition: ", as they
may be amended and/or restated from time to time."
16. The word "fifteen (15)" in Section 3.02 of the Credit Agreement
is hereby deleted and the word "sixteen (16)" is hereby substituted in lieu
thereof. Also in Section 3.02 of the Credit Agreement, the date "May 31, 1996"
is hereby deleted and the date "May 31, 1997" is hereby substituted in lieu
thereof.
17. Section 2.02(b) of the Credit Agreement is amended by deleting
the figure "$5,000,000" in the fifth line thereof and replacing such figure with
the figure "$2,000,000."
18. The following sentence, which is the last sentence of Section
2.02(b), is hereby deleted:
"At no time shall the number of Borrowings outstanding under
this Article II of LIBOR Advances exceed eight (8)."
19. Except as herein modified and amended, the terms and conditions
of the Credit Agreement shall remain in full force and effect.
20. This Amendment shall be governed by and construed in accordance
with the laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
THIRD NATIONAL BANK IN NASHVILLE,
AS AGENT
By: /s/ J. Xxxx Xxxxxx
------------------------------
Title:
----------------------------
3
106
THIRD NATIONAL BANK IN NASHVILLE
/s/ J. Xxxx Xxxxxx
----------------------------------
NATIONAL CITY BANK, KENTUCKY
(formerly known as First National
Bank of Louisville)
By: /s/ Xxxx Xxxxx
------------------------------
Title:
----------------------------
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
------------------------------
Title:
----------------------------
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Title:
----------------------------
CREDITANSTALT - BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Title:
----------------------------
The undersigned join in the execution of this Amendment in
order to acknowledge their consent to the terms and provisions of this
Amendment and to confirm that the execution of this Amendment by the parties
hereto in no way affects the undersigneds' respective obligations under the
Guaranty Agreement executed as of November 30, 1992 by Word, Incorporated, a
corporation organized and existing under the laws of the State of Delaware,
Editorial Caribe, Inc., a corporation organized and existing under the laws of
the State of Florida, ____________________, a corporation
4
107
organized and existing under the laws of the State of Tennessee, Xxxxxx Media,
Inc., a corporation organized and existing under the laws of the State of
Tennessee, Xxxxxx Communications, Inc., a corporation organized and existing
under the laws of the State of Tennessee, Dominion Publishers, Inc., a
corporation organized and existing under the laws of the State of Tennessee,
Royal Publishers, Inc., a corporation organized and existing under the laws of
the State of Tennessee, Word, Communications Ltd., a corporation organized and
existing under the laws of British Columbia, Canada, Word Direct Marketing
Services, Inc., a corporation organized and existing under the laws of the
State of Texas, TNI Cassette Corp., a corporation organized and existing under
the laws of the State of Texas, and Word (UK) Limited, a corporation organized
and existing under the laws of the United Kingdom, in favor of Third National
Bank in Nashville, a national banking association, in its capacity as agent for
banks and other lending institutions parties to the Credit Agreement and each
assignee thereof becoming a "Lender" as provided therein. Each person
executing this Amendment on behalf of each of the undersigned is duly
authorized to so execute and deliver this Amendment on behalf of each of the
undersigned entities.
WORD, INCORPORATED
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
EDITORIAL CARIBE, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
XXXXXX MEDIA, INC
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
5
108
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
DOMINION PUBLISHERS, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
ROYAL PUBLISHERS, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
WORD, COMMUNICATIONS LTD.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
WORD DIRECT MARKETING SERVICES,
INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Title:
-----------------------------
TNI CASSETTE CORP.
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
6
109
WORD (UK) LIMITED
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
THIRD NATIONAL BANK IN NASHVILLE,
AS AGENT
By: /s/ J. Xxxx Xxxxxx
------------------------------
Title:
----------------------------
THIRD NATIONAL BANK IN NASHVILLE
By: /s/ J. Xxxx Xxxxxx
------------------------------
Title:
----------------------------
NATIONAL CITY BANK, KENTUCKY
(formerly known as First National
Bank of Louisville)
By: /s/ Xxxx X. Xxxxx
------------------------------
Title:
----------------------------
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
------------------------------
Title:
----------------------------
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Title:
----------------------------
7
110
CREDITANSTALT - BANKVEREIN
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Title:
----------------------------
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Title:
----------------------------
The undersigned join in the execution of this Amendment in
order to acknowledge their consent to the terms and provisions of this
Amendment and to confirm that the execution of this Amendment by the parties
hereto in no way affects the undersigneds' respective obligations under the
Guaranty Agreement executed as of November 30, 1992 by Word, Incorporated, a
corporation organized and existing under the laws of the State of Delaware,
Editorial Caribe, Inc., a corporation organized and existing under the laws of
the State of Florida, PrintPlus Publications, Inc., a corporation organized and
existing under the laws of the State of Tennessee, Xxxxxx Media, Inc., a
corporation organized and existing under the laws of the State of Tennessee,
Xxxxxx Communications, Inc., a corporation organized and existing under the
laws of the State of Tennessee, Dominion Publishers, Inc., a corporation
organized and existing under the laws of the State of Tennessee, Royal
Publishers, Inc., a corporation organized and existing under the laws of the
State of Tennessee, Word, Communications Ltd., a corporation organized and
existing under the laws of British Columbia, Canada, Word Direct Marketing
Services, Inc., a corporation organized and existing under the laws of the
State of Texas, International Cassette Corp., a corporation organized and
existing under the laws of the State of Texas, and Word (UK) Limited, a
corporation organized and existing under the laws of the United Kingdom, in
favor of Third National Bank in Nashville, a national banking association, in
its capacity as agent for banks and other lending institutions parties to the
Credit Agreement and each assignee thereof becoming a "Lender" as provided
therein. Each person executing this Amendment on behalf of each of the
undersigned is duly authorized to so execute and deliver this Amendment on
behalf of each of the undersigned entities.
WORD, INCORPORATED
By: /s/ Xxx X. Xxxxxx
------------------------------
Title:
----------------------------
8
