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EXHIBIT 4(b) EXECUTION COUNTERPART
TERM LOAN AGREEMENT
Dated as of January 18, 1996
By and Among
BASIC AMERICAN MEDICAL PRODUCTS, INC.,
as Borrower,
XXXXX ENTERPRISES, INC.,
as Guarantor,
AND
SUNTRUST BANK, ATLANTA,
as Lender
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TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT, dated as of January 18, 1996 (the
"Agreement"), by and among BASIC AMERICAN MEDICAL PRODUCTS, INC., a corporation
organized and existing under the laws of the State of Georgia (the "Borrower"),
SUNTRUST BANK, ATLANTA a banking corporation organized and existing under the
laws of the State of Georgia (the "Lender") and, solely for the limited
purposes of making the representations and warranties set forth in Article IV
and agreeing to be bound by the covenants set forth in Article V below, XXXXX
ENTERPRISES, INC., a corporation organized and existing under the laws of the
State of Delaware (the "Guarantor").
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein set forth,
the Lender is willing to make available to the Borrower the credit facility
provided for herein;
NOW THEREFORE, for and in consideration of the sum of $10.00 in hand
paid by the Lender to the Borrower and the Guarantor, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. In addition to the other terms defined herein
and the terms incorporated herein by reference, the following terms used herein
shall have the meanings herein specified (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate obtained by dividing (A) LIBOR for such
Interest Period by (B) a percentage equal to 1 minus the then stated maximum
rate (stated as a decimal) of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
applicable to Lender (or assignee thereof) which is a member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or against
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any successor category of liabilities as defined in Regulation D). As of the
date of this Agreement, such stated maximum rate is 0.
"Agreement" shall mean this Term Loan Agreement, either as originally
executed or as it may be from time to time supplemented, amended, renewed or
extended.
"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 (with any change in the Base Rate to be
effective as of the date of change of either of the following rates) the higher
of (i) the rate which the Lender publicly announces from time to time as its
prime lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%) per
annum. The Lender's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to customers;
the Lender may make commercial loans or other loans at rates of interest at,
above or below the Lender's prime lending rate.
"Base Rate Borrowing" shall mean the Term Loan when it is bearing
interest at the Base Rate.
"Borrower" shall mean Basic American Medical Products, Inc., a Georgia
corporation, a wholly-owned subsidiary of Xxxxx Enterprises, Inc., a Delaware
corporation, its successors and permitted assigns.
"Business Day" shall mean any day excluding Saturday, Sunday and any
other day on which banks are required or authorized to close in Atlanta,
Georgia and, if the applicable Business Day relates to Eurodollar Borrowings,
any day on which trading is not carried on by and between banks in deposits of
the applicable currency in the applicable interbank Eurocurrency market.
"Closing Date" shall mean January 18, 1996, or such later date on which
the Term Loan is advanced hereunder.
"Deed to Secure Debt" shall mean that certain Deed to Secure Debt,
Security Agreement and Assignment of Rents and Leases, dated as of even date
herewith, made by the Borrower in favor of the Lender to secure the Term Loan
and all other obligations arising pursuant to the Loan Documents, either as
originally executed or as hereafter amended or modified.
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"Environmental Indemnity Agreement" shall mean that certain
Environmental Indemnity Agreement, dated as of even date herewith, made by the
Borrower in favor of Lender, either as originally executed or as hereafter
amended, modified or supplemented.
"Eurodollar Borrowing" shall mean the Term Loan when it is bearing
interest at the Adjusted LIBO Rate.
"Event of Default" shall have the meaning set forth in Article VI.
"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 which is a Business Day, the average of the quotations
for such day on such transactions received by the Lender from three Federal
funds brokers of recognized standing selected by the Lender.
"Xxxxx Credit Agreement" shall mean that certain Credit Agreement,
dated as of November 6, 1995, among the Guarantor, SunTrust Bank, Atlanta, as
Agent, and the lenders named therein or from time to time party thereto, either
as originally executed or as hereafter amended, modified or supplemented.
"Guarantor" shall mean Xxxxx Enterprises, Inc., a Delaware corporation.
"Guaranty" shall mean that certain Guaranty Agreement, dated as of even
date herewith, made by the Guarantor in favor of the Lender substantially in
the form of Exhibit "B" attached hereto, either as originally executed or as
hereafter amended, modified or supplemented.
"Interest Period" shall mean, with respect to any Eurodollar Borrowing,
a period of one month; provided, that (i) the first day of an Interest Period
must be a Business Day, and (ii) any Interest Period that would otherwise end
on a day that is not a Business Day shall be extended to the next succeeding
Business Day, unless such Business Day falls in the next calendar month, in
which case the Interest Period shall end on the next preceding Business Day,
and (iii) the last day of each Interest Period shall be the first day of the
next succeeding Interest Period.
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"LIBOR" shall mean, for any Interest Period, with respect to any
Eurodollar Borrowing, the offered rate for deposits in U.S. Dollars, for a
period comparable to the Interest Period and in an amount comparable to the
Term Loan appearing on the Reuters Screen LIBO Page as of 11:00 A.M. (London,
England time) on the day that is two London Business Days prior to the first
day of the Interest Period. If two or more of such rates appear on the Reuters
Screen LIBO Page, the rate for that Interest Period shall be the arithmetic
mean of such rates. If the foregoing rate is unavailable from the Reuters
Screen for any reason, then such rate shall be determined by the Lender from
Telerate Page 3750 or, if such rate is also unavailable on such service, then
on any other interest rate reporting service of recognized standing designated
in writing by the Lender to Borrower; in any such case rounded, if necessary,
to the next higher 1/16 of 1.0%, if the rate is not such a multiple.
"Loan Documents" shall mean and include, as the context requires, this
Agreement, the Note, the Guaranty, the Deed to Secure Debt, the Environmental
Indemnification Agreement and any and all other instruments, certificates,
agreements, documents and writings contemplated hereby or executed in
connection herewith.
"Maturity Date" shall have the meaning set forth in Section 2.01.
"Obligations" shall mean all amounts owing to the Lender pursuant to
the terms of this Agreement or any other Loan Document, including, without
limitation, the Term Loan (including all principal and interest payments due
thereunder), all obligations pursuant to fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Borrower or the Guarantor, direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising, together with
all renewals, extensions, modifications or refinancings thereof.
"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.
"Property" shall mean the real property located in Gwinnett County,
Georgia and DeKalb County, Georgia, as more particularly described on Exhibit A
to the Deed to Secure Debt.
"Reserve Percentage" shall mean, for any day, the stated maximum rate
(expressed as a decimal) of all reserves required to be maintained with respect
to liabilities or assets consisting of or including "Eurocurrency liabilities,"
as prescribed by
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Regulation D of the Board of Governors of the Federal Reserve System (or by any
other governmental body having jurisdiction with respect thereto), including,
without limitation, any basic, marginal, emergency, supplemental, special,
transitional or other reserves, the rate so determined to be rounded upward to
the nearest whole multiple of 1/100 of 1%.
"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 Note" or "Note" shall mean a promissory note of the Borrower
payable to the order of the Lender, in substantially the form of Exhibit "A"
hereto, in an original principal amount of $1,763,850, evidencing the Term
Loan, either as originally executed or as it may be from time to time
supplemented, modified, amended, renewed or extended.
ARTICLE II
AMOUNT AND TERMS OF TERM LOAN
SECTION 2.01. Term Loan and Note. The Lender hereby agrees to lend, and
Borrower hereby agrees to borrow on the Closing Date, upon the terms and
conditions set forth in this Agreement, the sum of $1,763,850.00 (the "Term
Loan" or "Loan") to be evidenced by the Term Note. The Term Note shall bear
interest on the outstanding principal balance from the date of the Term Note to
final payment at the rate set forth below and shall mature on January 18, 2001
(the "Maturity Date"), or sooner should the Lender declare the principal and
accrued interest on such Term Note to be immediately due and payable as
provided for hereinafter. Principal on the Term Note shall be payable in
fifty-nine (59) monthly installments of $9,944.44, payable on the last day of
each calendar month, commencing on February 29, 1996 and continuing through
December 31, 2000, with a final payment in the amount of $1,177,128.04 on the
Maturity Date, when the entire unpaid principal balance on the Term Note,
together with all accrued and unpaid interest, shall be due and payable in
full.
SECTION 2.02. Interest on Term Note. (a) Except as otherwise provided
herein, interest shall accrue on the unpaid principal amount of the Term Note
at LIBOR for consecutive Interest Periods of 1 month, plus an additional
fifty-five one-hundredths of one percent (0.55%) per annum.
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(b) If the Borrower shall fail to pay on the due date therefor, whether
by acceleration or otherwise, any principal owing under the Note, then interest
shall accrue on such unpaid principal, and to the extent permitted by law,
unpaid interest, from the due date until and including the date on which such
amount is paid in full at a rate of interest per annum equal to the sum of two
percent (2%) per annum plus the higher of (i) the interest rate otherwise
applicable to the Term Loan and (ii) the Base Rate (the "Default Rate").
SECTION 2.03. Calculation of Interest. Interest payable hereunder shall
be calculated on the basis of the actual days elapsed in a 360 day year.
SECTION 2.04. Use of Proceeds. The proceeds of the Term Loan will be
used by the Borrower solely to repay in full all existing debt secured by the
Property as described on Schedule 2.04 attached hereto (the "Refinanced
Indebtedness").
SECTION 2.05. Interest Rate Not Ascertainable etc. In the event that
the 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) that on any date for determining the Adjusted LIBO Rate for
any Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Lender'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
Adjusted LIBO Rate, then, and in any such event, the Lender shall forthwith
give notice (by telephone confirmed in writing) to Borrower of such
determination and a summary of the basis for such determination. Until the
Lender notifies Borrower that the circumstances giving rise to the suspension
described herein no longer exist (which notice Lender agrees to give to the
Borrower upon Lender obtaining knowledge that such circumstances have ceased to
exist), the obligations of the Lender to make or permit the Term Loan to remain
outstanding past the last day of the then current Interest Period as a LIBOR
Borrowing shall be suspended, and the Term Loan shall bear interest at the Base
Rate.
SECTION 2.06. Illegality.
(a) In the event that 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 Eurodollar Borrowing has become unlawful by compliance by
Lender in good faith with any applicable law, governmental rule, regulation,
guideline or order (whether or not having the force of
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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 Borrower of such determination and a summary of the basis for such
determination.
(b) Upon the giving of the notice to Borrower referred to in subsection
(a) above, Lender's obligation to make Eurodollar Borrowings shall be
immediately suspended, and the Term Loan shall be converted to a Base Rate
Borrowing.
SECTION 2.07. Increased Costs. If, after the date hereof, by reason of
(x) 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 (y) 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):
(i) Lender shall be subject to any tax, duty or other charge with
respect to the Eurodollar Borrowings, or its obligation to make Eurodollar
Borrowings, or the basis of taxation of payments to Lender of the principal
of or interest on Eurodollar Borrowings or its obligation to make
Eurodollar Borrowings shall have changed (except for changes in the tax on
the overall net income of Lender, or franchise taxes applicable thereto, in
each case, as imposed by the jurisdiction in which Lender's principal
executive office is located); or
(ii) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit or
requirement similar against assets of, deposits with or for the account of,
or credit extended by, Lender's applicable lending office shall be imposed
or deemed applicable or any other condition affecting Eurodollar
Borrowings or its obligation to make Eurodollar Borrowings shall be imposed
on 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 Lender of
agreeing to make or making, funding or maintaining Eurodollar Borrowings
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Borrowings) or its obligation to make
Eurodollar Borrowings or there shall be a reduction in the amount received or
receivable by Lender or its applicable lending office, then
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Borrower shall from time to time, upon written notice from and demand by Lender
on Borrower, pay to the Lender for the account of Lender within five Business
Days after the date of such notice and demand, additional amounts sufficient to
indemnify Lender against such increased cost. A certificate as to the amount of
such increased cost, submitted to Borrower by Lender in good faith and
accompanied by a statement prepared by the such Lender describing in reasonable
detail the basis for and calculation of such increased cost, shall constitute
prima facie evidence of the matters contained therein. This Section 2.07 shall
survive the termination of this Agreement and the repayment of the Term Loan
provided that, in the event that the Lender fails to make written demand for
indemnification or compensation pursuant to this Section 2.07 hereof within one
year after the date that the Lender receives actual notice or obtains actual
knowledge of the promulgation of a law, rule, order or interpretation or
occurrence of another event giving rise to a claim pursuant to this Section,
the Borrower shall not have any obligation to pay any amount with respect to
claims accruing prior to the date which is one year preceding such written
demand.
SECTION 2.08. Capital Adequacy. Without limiting any other provision of
this Agreement, in the event that the 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 the 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 the Lender's capital as
a consequence of its obligations hereunder to a level below that which the
Lender could have achieved but for such law, treaty, rule, regulation,
guideline or order, or such change or compliance (taking into consideration the
Lender's policies with respect to capital adequacy) by an amount deemed by the
Lender to be material, then within ten (10) Business Days after written notice
and demand by the Lender), Borrower shall from time to time pay to the Lender
additional amounts sufficient to compensate the Lender for such reduction (but,
in the case of outstanding Base Rate Borrowings, without duplication of any
amounts already recovered by the Lender by reason of an adjustment in the
applicable Base Rate). Each certificate as to the amount payable under this
Section 2.08 (which certificate shall set forth the basis for requesting such
amounts in reasonable detail), submitted to Borrower by the Lender in good
faith, shall constitute prima facie evidence of the
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matters contained therein. This Section 2.08 shall survive the termination of
this Agreement and the repayment of the Term Loan provided that, in the event
that the Lender fails to make written demand for indemnification or
compensation pursuant to this Section 2.08 hereof within one year after the
date that the Lender receives actual notice or obtains actual knowledge of the
promulgation of a law, rule, order or interpretation or occurrence of another
event giving rise to a claim pursuant to this Section, the Borrower shall not
have any obligation to pay any amount with respect to claims accruing prior to
the date which is one year preceding such written demand.
SECTION 2.09. Prepayment. The Borrower may prepay the Term Loan at any
time in whole or in part, together with all accrued and unpaid interest
thereof; provided that, the Borrower shall give the Lender two days' notice of
any prepayment and such prepayment shall be made on the last day of an Interest
Period. Any partial prepayment of the Term Loan shall be in a minimum amount of
$100,000.00 and in integral multiples thereof and shall be applied to
installments of principal in inverse order of their maturity.
SECTION 2.10. Making of Payments. All payments of principal of, or
interest on, the Note and all other amounts due hereunder shall be made in
immediately available funds to the Lender at its principal office in Atlanta,
Georgia.
ARTICLE III
CONDITIONS TO TERM LOAN
The obligation of the Lender to advance the Term Loan to the Borrower
is subject to the satisfaction of the condition that the Lender shall have
received the following, each dated as of the Closing Date, in form and
substance satisfactory to the Lender:
(a) The duly completed Note;
(b) The duly completed counterpart of this Agreement;
(c) The duly executed Guaranty;
(d) The duly executed Environmental Indemnification Agreement;
(e) The duly executed closing certificate of Borrower and Guarantor in
substantially the form of Exhibit "C" attached hereto and appropriately
completed;
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(f) the duly executed Deed to Secure Debt and accompanying UCC-l
fixture filing and UCC-2 Notice Filing;
(g) title commitments with respect to the Property subject to the Deed
to Secure Debt in an amount and in a form reasonably satisfactory to the
Lender;
(h) as-built surveys of the Property subject to the Deed to Secure Debt
certified to the Lender;
(i) Phase I environmental reports with respect to the Property subject
to the Deed to Secure Debt disclosing only such matters as may be reasonably
acceptable to the Lender, and if necessary, additional Phase II environmental
reports;
(j) certificates of the Secretary or Assistant Secretary of the
Borrower and the Guarantor, respectively, attaching and certifying copies of
the resolutions of the boards of directors approving the transactions
contemplated herein;
(k) certificates of the Secretary or an Assistant Secretary of the
Borrower and the Guarantor, respectively, certifying (i) the name, title and
true signature of each officer of such entities executing the Loan Documents,
and (ii) the bylaws of the Borrower and the Guarantor, respectively;
(l) certified copies of the certificate or articles of incorporation of
the Borrower and the Guarantor, respectively, certified by the Secretary of
State or the Secretary or Assistant Secretary of the Borrower and the
Guarantor, respectively, 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 the Borrower and the Guarantor,
respectively;
(m) 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 such obligations;
(n) the favorable opinion of Xxxxxx & Bird, counsel to the Borrower and
the Guarantor, substantially in the form of Exhibit "D" addressed to the
Lender;
(o) Payment of the amount of intangible recording tax due upon
recordation of the Deed to Secure Debt;
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(p) Evidence satisfactory to the Lender that the Guarantor has
acquired 100% of the outstanding stock of the Borrower; and
In addition to the foregoing, the following conditions shall have been
satisfied or shall exist, all to the satisfaction of the Lender, as of the time
the Term Loan is made hereunder:
(x) the Term Loan to be made on the Closing Date and the use of
proceeds thereof shall not contravene, violate or conflict with, or
involve the Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other governmental
authority;
(y) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and
enforceability of the Loan Documents shall be reasonably satisfactory
in form and substance to the Lender; and
(z) At the time of the making of the Term Loan, all
representations and warranties of the Guarantor and the Borrower set
forth herein shall be true and correct, and after giving effect to the
Term Loan, there shall exist no Default or Event of Default hereunder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Guarantor, on behalf of itself and its Subsidiaries and the
Borrower, each hereby represent and warrant to the Lender as of the Closing
Date that all representations and warranties set forth in Article V of the
Xxxxx Credit Agreement, which representations and warranties are, for the
benefit of the Lender, incorporated by reference herein (including the
definition of terms used therein which appear in the other provisions of the
Xxxxx Credit Agreement), irrespective of any termination, modification or
amendment or consent or waiver to such representations and warranties or
termination of the Xxxxx Credit Agreement are true and correct as if made on
such date; provided that (i) all references to "each Lender", the "Lenders",
the "Required Lenders" or "Agent" shall be deemed to mean the Lender; (ii) all
references to "this Agreement" and any "Note" shall be deemed to mean this
Agreement and the Note rather than the Xxxxx Credit Agreement and any note
delivered pursuant thereto; (iii) the words "hereunder" and "hereby" and the
like shall be deemed to
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refer to this Agreement rather than the Xxxxx Credit Agreement; (iv) all
references to Closing Date shall mean the Closing Date as defined herein; and
(v) the definition of "Refinanced Indebtedness" and the schedule related
thereto shall be deemed to have the meaning set forth herein.
ARTICLE V
COVENANTS
SECTION 5.01. Incorporation By Reference of the Xxxxx Credit Agreement.
The Guarantor and the Borrower hereby covenant and agree that so long as any
Obligations remain unpaid, each will comply with each of the covenants set
forth in Articles VI and VII of the Xxxxx Credit Agreement (which for the
purposes hereof the Borrower shall be deemed to be a party thereto), which
covenants are, for the benefit of the Lender, incorporated by reference herein
(including the definitions of the terms used therein which appear in other
provisions of the Xxxxx Credit Agreement), irrespective of any termination,
modification, amendment or consent or waiver relating to such covenants or
termination of the Xxxxx Credit Agreement; provided that, (i) any reference to
any "Lender" or the "Agent" or the "Required Lenders" shall be deemed to mean
the Lender, (ii) all references to "Borrower" shall be deemed to mean the
Guarantor and the Borrower, as the case may be, and all references to the
"Credit Parties" shall be deemed to refer to the Guarantor and the Borrower
collectively, (iii) the terms "Default" and "Event of Default" shall be deemed
to have the meanings given such terms herein, (iv) all reference to this
"Agreement", any "Note", any "Loan", any "Borrowing" or the "Credit Documents"
shall be deemed to mean this Agreement and the Note, the Term Loan and the Loan
Documents as defined herein.
SECTION 5.02. Effect of Amendment of Xxxxx Credit Agreement.
Notwithstanding the foregoing Section 5.01, any modification, amendment or
consent or waiver relating to the covenants or other provisions incorporated
herein from the Xxxxx Credit Agreement entered into while the Lender is a party
to the Xxxxx Credit Agreement shall be automatically incorporated into or
honored for purposes of this Agreement with the same force and effect.
SECTION 5.03 Termination or Withdrawal of Lender from Xxxxx Credit
Agreement. In the event that indebtedness outstanding pursuant to the Xxxxx
Credit Agreement is paid in full or the Xxxxx Credit Agreement is otherwise
terminated or the Lender is no longer a party thereto, the Borrower, the Lender
and Guarantor agree to negotiate in good faith replacement covenants for this
Agreement. Until such time as appropriate amendments or
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modifications to this Agreement are executed by the parties, however, the
provisions of Section 5.01 shall remain in full force and effect.
SECTION 5.04 Covenants of Guarantor. Although the Guarantor is not a
borrower under this Agreement, as an inducement for the Lender to extend the
Term Loan to the Borrower, the Guarantor hereby covenants and agrees with the
Lender to comply with the covenants described above on the terms and conditions
described above. The Guarantor acknowledges that the Lender has materially
relied on and will continue to materially rely on the representations and
warranties of Guarantor incorporated by reference in Article IV of this
Agreement and on the covenants of Guarantor set forth in Article V of this
Agreement in extending the Commitment to the Borrower.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. Any one or more of the following shall
constitute an Event of Default hereunder:
(a) the Borrower shall default in the payment of any part of the
principal of the Note when the same shall become due and payable or shall
default in the payment of any installment of interest on the Note or any
other amount payable hereunder; or
(b) any representation or warranty made by the Borrower or the
Guarantor in this Agreement, any other Loan Document, or in any report,
certificate or other instrument furnished in connection with this Agreement
or the Note or any other Loan Document shall prove to have been false in
any material respect on the date made or deemed to have been made; or
(c) the Borrower or the Guarantor shall default in the performance of
any of the covenants contained in this Agreement or any other Loan Document
beyond any period of grace provided herein or therein; or
(d) the Borrower shall default in the performance of any other
covenants herein (including covenants incorporated herein) and such default
shall not have been remedied within 30 days after written notice thereof
shall have been given to the Borrower by the Lender; or
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(e) the Borrower or the Guarantor shall commence a voluntary case
concerning itself under the Bankruptcy Code or applicable foreign
bankruptcy laws; or an involuntary case for bankruptcy is commenced against
the Borrower or the Guarantor and the petition is not controverted within
20 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) or similar
official under applicable foreign bankruptcy laws is appointed for, or
takes charge of, all or any substantial part of the property of the
Borrower or the Guarantor; or the Borrower or the Guarantor 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 the Borrower or the Guarantor or there is commenced against the
Borrower or the Guarantor any such proceeding which remains undismissed for
a period of 60 days; or the Borrower or the Guarantor is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any
such case or proceeding is entered; or the Borrower or the Guarantor
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 60 days; or the Borrower or the Guarantor makes a general
assignment for the benefit of creditors; or the Borrower or the Guarantor
shall fail to pay, or shall state in writing that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; or the
Borrower or the Guarantor shall call a meeting of its creditors with a view
to arranging a composition or adjustment of its debts; or the Borrower or
the Guarantor 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 the Borrower or the Guarantor for the purpose of
effecting any of the foregoing; or
(f) Borrower or the Guarantor shall have concealed, removed, or
permitted to be concealed or removed, any part of its property, with intent
to hinder, delay or defraud its creditors or any of them, or made or
suffered a transfer of any of its property which may be fraudulent under
any bankruptcy, fraudulent conveyance or similar law; or shall have made
any transfer of its property to or for the benefit of a creditor at a time
when other creditors similarly situated have not been paid; or shall have
suffered or permitted, while insolvent, any creditor to obtain a Lien upon
any of its property through legal proceedings or
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distraint which is not vacated within thirty days from the date thereof; or
(g) there shall occur an "Event of Default" as such term is defined in
the Xxxxx Credit Agreement, including without limitation, the events of
default set forth in Sections 8.05 through 8.12 of Article VIII of the
Xxxxx Credit Agreement, which paragraphs are for the benefit of the Lender,
incorporated by reference herein (including the definitions of the terms
used therein which appear in other provisions of the Xxxxx Credit
Agreement); irrespective of any termination, modification or amendment or
consent or waiver relating to such events of default or the termination of
the Xxxxx Credit Agreement; and provided that (i) all references to the
"Notes" shall be deemed to mean the Note rather than any note delivered
pursuant to the Xxxxx Credit Agreement, (ii) all references to the "Agent"
or the "Lenders" shall be deemed to mean the Lender, and (iii) all
references to the "Borrower" shall be deemed to refer to the Guarantor; or
(h) the Guarantor shall cease to own and control 100% of the
outstanding stock of the Borrower; or
(i) the Lender shall cease, for any reason, to have a first priority
lien on, and security title to, the Property pursuant to the Deed to Secure
Debt; or
(j) the Guaranty shall cease to be in full force and effect for any
reason or the Guarantor shall cease to terminate, deny or disaffirm its
liability thereunder.
SECTION 6.02. Remedies on Default.
Upon the occurrence and during the continuation of an Event of Default
(other than an Event of Default described in Section 6.01(e) when the
termination and acceleration described below shall be automatic), the Lender
shall (i) terminate all obligations of the Lender to the Borrower, including,
without limitation, all obligations to advance the Term Loan under this
Agreement, (ii) declare the Note, including, without limitation, principal,
accrued interest and costs of collection (including, without limitation,
reasonable attorneys' fees if collected by or through an attorney at law or in
bankruptcy, receivership or other judicial proceedings) immediately due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are expressly waived. Upon the occurrence of an Event of Default
and acceleration of the Note as provided in (a) or (b) above, the Lender may
pursue any remedy available under this Agreement, under the Note, or under any
other Loan Document, or available at law or in equity, all of which shall be
cumulative.
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The order and manner in which the rights and remedies of the Lender under the
Loan Documents and otherwise may be exercised shall be determined by the
Lender. All payments with respect to this Agreement received by the Lender
after the occurrence of an Event of Default and acceleration of the Note shall
be applied first, to the costs and expenses actually incurred by the Lender,
second, to the payment of accrued and unpaid fees of the Lender, third, to the
payment of accrued and unpaid interest on the Note, to and including the date
of such application, fourth, to the unpaid principal of the Note, and fifth, to
the payment of all other amounts then owing to the Lender under the Loan
Documents. No application of the payments will cure any Event of Default or
prevent acceleration, or continued acceleration, of amounts payable under the
Loan Documents or prevent the exercise, or continued exercise, of rights or
remedies of the Lender hereunder or under applicable law.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. No Waiver. No delay or failure on the part of the Lender
or any holder of the Note in the exercise of any right, power or privilege
granted under this Agreement, under any other Loan Document, or available at
law or in equity, shall impair any such right, power or privilege or be
construed as a waiver of any Event of Default or any acquiescence therein. No
single or partial exercise of any such right, power or privilege shall preclude
the further exercise of such right, power or privilege. No waiver shall be
valid against the Lender unless made in writing and signed by the Lender, and
then only to the extent expressly specified therein.
SECTION 7.02. Notices. Unless otherwise provided herein, all notices,
requests and other communications provided for hereunder shall be in writing
and shall be given at the address set forth for each party on the signature
pages hereto.
SECTION 7.03. Governinq Law. This Agreement and all other Loan
Documents shall be governed by and interpreted in accordance with the laws of
the State of Georgia.
SECTION 7.04. Successors and Assigns. This Agreement shall bind and
inure to the benefit of the Borrower and the Lender, and their respective
successors and assigns; provided, however, neither the Borrower nor the Lender
shall have no right to assign its rights or obligations hereunder to any
Person. Notwithstanding anything in this Agreement to the contrary, the Lender
shall have the right, but shall not be obligated, to sell
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participations in the loans made pursuant hereto to affiliates of the Lender,
other banks, financial institutions and investors with notice to, and the
consent of the Borrower; provided that no notice to, nor consent of, the
Borrower shall be required for sales of participations to Affiliates of the
Lender; provided, however, that any participant shall have no rights hereunder.
SECTION 7.05. Amendments; Consents. No amendment, modification,
supplement, termination, or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any
Subsidiary therefrom, may in any event be effective unless in writing signed by
the Lender, and then only in the specific instance and for the specific purpose
given.
SECTION 7.06. Rights Cumulative. All rights, powers and privileges
granted hereunder shall be cumulative to and shall not be exclusive of any
other rights, powers and privileges granted by any other Loan Document or
available at law or in equity.
SECTION 7.07. Set-Off. Upon the occurrence and during the continuation
of an Event of Default, Borrower authorizes Lender, without notice or demand,
to apply any indebtedness due or to become due to Borrower from Lender in
satisfaction of any of the indebtedness, liabilities or obligations of Borrower
under this Agreement, under any other Loan Document or under any other note,
instrument, agreement, document or writing of Borrower held by or executed in
favor of Lender including, without limitation, the right to set-off against any
deposits or other cash collateral of Borrower held by Lender.
SECTION 7.08. Indemnity. Borrower agrees to protect, indemnify and save
harmless Lender, and all directors, officers, employees and agents of Lender,
from and against any and all (i) claims, demands and causes of action of any
nature whatsoever brought by any Person not a party to this and arising from or
related or incident to this Agreement or any other Loan Document, (ii) costs
and expenses incident to the defense of such claims, demands and causes of
action, including, without limitation, attorneys' fees, and (iii) liabilities,
judgments, settlements, penalties and assessments arising from such claims,
demands and causes of action. The indemnity contained in this section shall
survive the termination of this Agreement.
SECTION 7.09. Usury. It is the intent of the parties hereto not to
violate any federal or state law, rule or regulation pertaining either to usury
or to the contracting for or charging or collecting of interest, and Borrower
and Lender agree that, should any provision of this Agreement or of the Note,
or any act
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performed hereunder or thereunder, violate any such law, rule or regulation,
then the excess of interest contracted for or charged or collected over the
maximum lawful rate of interest shall be applied to the outstanding principal
indebtedness due to Lender by Borrower under this Agreement.
SECTION 7.10. Jurisdiction and Venue. Borrower agrees, without power of
revocation, that any civil suit or action brought against it as a result of any
of its obligations under this Agreement or under any other Loan Document may be
brought against it either in the Superior Court of Xxxxxx County, Georgia, or
in the United States District Court for the Northern District of Georgia,
Atlanta Division, and Borrower hereby irrevocably submits to the jurisdiction
of such courts and irrevocably waives, to the fullest extent permitted by law,
any objections that it may now or hereafter have to the laying of the venue of
such civil suit or action and any claim that such civil suit or action has been
brought in an inconvenient forum, and Borrower agrees that final judgment in
any such civil suit or action shall be conclusive and binding upon it and shall
be enforceable against it by suit upon such judgment in any court of competent
jurisdiction.
SECTION 7.11. Holidays. In any case where the date for any action
required to be performed under this Agreement or under any other Loan Document
shall be, in the city where the performance is to be made, not a Business Day,
then such performance may be made on the next succeeding Business Day.
SECTION 7.12. Entire Agreement. This Agreement and the other Loan
Documents executed and delivered contemporaneously herewith, together with the
exhibits and schedules attached hereto and thereto, constitute the entire
understanding of the parties with respect to the subject matter hereof, and any
other prior or contemporaneous agreements, whether written or oral, with
respect thereto including, without limitation, any loan commitment from the
Lender to the Borrower, are expressly superseded hereby.
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WITNESS the hand of the parties hereto through their duly authorized
officers, under seal as of the date first above written.
BORROWER:
BASIC AMERICAN PRODUCTS, INC.
By: XXXX X. XXXXX, Xx.
----------------------
XXXX XXXXX, Xx.
(Vice President)
Attest: Xxxxxxx Xxxxxxxxx
------------------
Xxxxxxx X. Xxxxxxxxx
Secretary
[Corporate Seal]
Address: 0000 Xxxxxxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
LENDER:
SUNTRUST BANK, ATLANTA
By: Xxxxxx-Xxx X. Hattink
----------------------------
Title: Group Vice President
By: Xxxxxx X. Xxxxxxxx
----------------------------
Title: Banking Officer
Address: P. X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
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ACCEPTED AND AGREED FOR THE LIMITED PURPOSES SET FORTH ABOVE:
XXXXX ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxxx, Xx.
------------------------------
Xxxx X. Xxxxx Xx.
Executive Vice President and
Chief Operating Officer
Address: One Atlantic Center
Suite 5000
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx, Xx.
