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EXHIBIT 4(e)
TERM LOAN/BANKERS' ACCEPTANCE AGREEMENT
THIS TERM LOAN/BANKERS' ACCEPTANCE AGREEMENT is made and entered into
this 9th day of January, 1996, by and between The Xxxxxxx-Xxxxxxxx Company, a
corporation organized and existing under the laws of the State of Ohio
("Borrower"), and SunTrust Bank, Atlanta, a Georgia banking corporation, and
its successors and assigns ("Bank").
W I T N E S S E T H:
WHEREAS, Borrower has requested Bank to establish a two (2) year
$50,000,000 term loan/bankers' acceptance facility to finance working capital,
capital expenditures, and other general corporate purposes, including, but not
limited to, acquisitions of stock, assets or other ownership interests of
Borrower; and
WHEREAS, Bank is willing to establish said term loan/bankers'
acceptance facility in the foregoing amount, subject to the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises contained
herein the parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meaning:
"ACCEPTANCES" shall have the meaning set forth in Section 3.1 hereof.
"ACCEPTANCE OBLIGATIONS" shall mean the aggregate outstanding face amount of
all Acceptances (whether matured or unmatured) in respect of which no
payment, conversion or deposit has been made.
"ACCEPTANCE RATE" shall mean for any Interest Period the all-in discount rate
(including any acceptance commission of Bank) equal to the equivalent
of LIBOR, plus 0.20% per annum.
"AGREEMENT" shall mean this Term Loan/Bankers' Acceptance Agreement, either as
originally executed or as it may be from time to time supplemented,
amended, renewed or extended.
"AGREEMENT DATE" shall mean January 9, 1996.
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"ALTERNATE BASE RATE" shall mean the higher of: (i) the rate of interest in
effect for any given day as publicly announced from time to time by
Bank as its "reference rate" and (ii) the Federal Funds Rate plus 50
basis points. Any change by Bank of its "reference rate" shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"ALTERNATE BASE RATE LOAN" shall mean the Term Loan bearing interest at the
Alternate Base Rate.
"BANK" shall mean SunTrust Bank, Atlanta and any successor or assign thereto.
"BANKING DAY" shall mean a day, other than a Saturday or Sunday, on which
Atlanta banks are open for the transaction of business.
"BUSINESS DAY" shall mean, with respect to a LIBOR Loan, any day other than a
Saturday, Sunday or a day on which commercial banks are required or
authorized to close of domestic or international business, including
dealings in Dollar deposits, in Atlanta, Georgia or London, England
and with respect to all other matters, any day other than a Saturday,
Sunday or a day on which commercial banks are required or authorized
to close in Atlanta, Georgia.
"CONSOLIDATED NET WORTH" shall mean the excess of the net book value of the
assets of Borrower and its Consolidated Subsidiaries over all of their
liabilities (other than Subordinated Indebtedness), as determined on a
consolidated basis in accordance with generally accepted accounting
principles as applied by Borrower in the calculation of such amount in
Borrower's then most recent financial statements furnished to its
stockholders, plus the aggregate value of all treasury stock purchased
after the Agreement Date (at cost) by Borrower (to the extent that the
aggregate value of such treasury stock for purposes of this
calculation does not exceed Two Hundred Fifty Million Dollars
($250,000,000)). The calculation of Consolidated Net Worth shall
exclude any amounts which would otherwise be required to be included
therein as a result of the future adoption by the Financial Accounting
Standards Board of any policy, statement, rule or regulation requiring
Borrower to record an accumulative liability on its Financial
Report(s).
"CONSOLIDATED SUBSIDIARY" shall mean, at any particular time, every Subsidiary
which is consolidated in Borrower's financial statements contained in
its then most recent Financial Report.
"DEBT" shall mean, collectively, all indebtedness at any one time outstanding
hereunder and owed by Borrower to Bank pursuant to this Agreement and
includes the principal of and interest on the Term Note, any
Acceptance Obligations and any funding indemnities incurred under
Section 4.4 of this Agreement.
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"EVENT OF DEFAULT" shall mean any of the events referred to in Article VII
hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Banking
Day opposite the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such preceding
Banking Day, the rate for such day shall be the arithmetic mean, as
determined by Bank, of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York time) on such day
by each of three leading brokers of Federal funds transactions in New
York City selected by Bank.
"FINANCIAL REPORT" shall mean the annual or periodic report prepared in
accordance with generally accepted accounting principles, except as
otherwise indicated, filed by Borrower with the Securities and
Exchange Commission (or any governmental body or agency succeeding to
the functions of such Commission) on Form 10-K or 10-Q pursuant to the
Securities Exchange Act of 1934 ("Exchange Act"), as then in effect
(or any comparable forms under similar Federal statutes then in
force), and the most recent financial statements furnished by Borrower
to its stockholders (which annual financial statement shall be
certified by Borrower's independent certified public accountants).
"INDEMNIFIED PERSONS" shall have the meaning set forth in Section 3.4 hereof.
"INTEREST PERIOD" shall mean, with respect to the Term Loan, a period of 3
months; provided, that (i) the first and last day of an Interest
Period must be a Quarter Date, and (ii) no Interest Period shall
extend beyond the Maturity Date.
"LIBOR" shall mean with respect to each Interest Period for a LIBOR Loan, the
rate per annum equal to the quotient of (i) the rate offered for
deposits in Dollars of amounts equal or comparable to the principal
amount of such LIBOR Loan offered for a term comparable to such
Interest Period, which rate appears on the Telerate Page 3750 as of
11:00 A.M. (London, England) time, two (2) Business Days prior to the
first day of such Interest Period; provided that, if no such offered
rates appear on such page, the rate used for such Interest Period
shall be the arithmetic average (rounded upward, if necessary, to the
next higher 1/16th of 1%) of rates offered to Bank by not less than
two major banks in London, England at approximately 10:00 A.M.
(Atlanta, Georgia time), two (2) Business Days prior to the first day
of such Interest Period for deposits in Dollars in the London
interbank market for a period comparable to such Interest Period in an
amount comparable to the principal amount of such LIBOR Loan, (ii)
divided by a number equal to 1.00 minus the Reserve Percentage. The
rate so determined in accordance herewith shall be rounded upwards to
the nearest whole multiple of 1/100th of 1%. "Telerate Page 3750"
shall mean the display designated as "Page 3750" on the Telerate
Service (or such other page as may replace Page 3750 on that service
or another service as may be
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nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British bankers' Association
Interest Settlement Rate for Dollars).
"LIBOR LOAN" shall mean the Term Loan bearing interest based on LIBOR.
"LOAN DOCUMENTS" shall mean and include, as the context requires, this
Agreement, the Term Note, the Acceptances, the SWAP Agreement and any
and all other instruments, agreements, documents and writings
contemplated hereby or executed in connection herewith.
"MATERIAL" shall mean the measure of a matter of significance which shall be
determined as being an amount equal to five percent (5%) or more of
Borrower's Consolidated Net Worth.
"MATURITY DATE" shall mean January 9, 1998, or such later date as the parties
may agree that the unpaid principal and all accrued interest and all
other amounts due hereunder shall be paid in full.
"PLAN" shall mean any employee pension benefit plan within the meaning of
Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended from time to time ("ERISA") sponsored and maintained by
Borrower, any Consolidated Subsidiary, or of any member of a
controlled group of corporations, as the term "controlled group of
corporations" is defined in Section 1563 of the Internal Revenue Code
of 1986, as amended, of which Borrower or any Consolidated Subsidiary
is a part, for employees thereof.
"POSSIBLE DEFAULT" shall mean an event, condition or thing known to Borrower
which constitutes, or which with the lapse of any applicable grace
period or the giving of notice or both would constitute, any Event of
Default and which has not been appropriately waived by Bank in writing
or fully corrected prior to becoming an Event of Default.
"QUARTER DATE" shall mean the last day of each March, June, September and
December.
"REPORTABLE EVENT" shall mean a reportable event as that term is defined in
Title IV of ERISA except actions of general applicability by the
Secretary of Labor under Section 110 of ERISA.
"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 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%.
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"SUBORDINATED INDEBTEDNESS" shall mean indebtedness which has been subordinated
(by written terms or agreement being in form and substance reasonably
satisfactory to Bank) in favor of the prior payment in full of
Borrower's Debt to Bank.
"SUBSIDIARY" shall mean an existing or future corporation(s), the majority of
the outstanding capital stock or voting power, or both, of which is
(or upon the exercise of all outstanding warrants, options and other
rights would be) owned at the time in question by Borrower or by
another such corporation(s) or by any combination of Borrower and such
corporation(s).
"SWAP AGREEMENT" shall mean that certain Interest Rate and Currency Exchange
Agreement, dated January 9, 1996, and the Schedule thereto by and
between Borrower and Bank.
"TERM LOAN" shall have the meaning set forth in Section 2.1 hereof.
"TERM NOTE" shall mean the promissory note executed by Borrower payable to the
order of Bank, in substantially the form of Exhibit A attached hereto,
evidencing the Term Loan, either as originally executed or as it may
from time to time be supplemented, modified, amended, renewed or
extended.
"VOTING STOCK" shall mean stock of a corporation of a class or classes having
general voting power under ordinary circumstances to elect a majority
of the board of directors, managers or trustees of such corporation
(irrespective of whether or not the stock of any other class or
classes shall have or might have voting power by reason of the
happening of any contingency).
"WHOLLY-OWNED CONSOLIDATED SUBSIDIARY" shall mean each Consolidated Subsidiary
all of whose outstanding stock, other than directors' qualifying
shares, shall at the time be owned by Borrower and/or by one or more
Wholly-Owned Consolidated Subsidiaries.
ARTICLE II
AMOUNT AND TERMS OF TERM LOAN/BANKERS' ACCEPTANCE FACILITY
SECTION 2.1. TERM LOAN. Bank agrees, on the terms and subject to the
conditions contained herein, to make a term loan ("Term Loan") to
Borrower on the Agreement Date in the principal amount of Fifty
Million and 00/100 Dollars ($50,000,000). The Term Loan shall be
evidenced by the Term Note or by Acceptances if funded at the
Acceptance Rate; provided, that at no time shall a LIBOR Loan and
Acceptances be outstanding hereunder simultaneously. On the Agreement
Date, Bank shall credit the amount of the Term Loan in immediately
available funds to an account of Borrower with Bank or otherwise
transfer said amount in immediately available funds in accordance with
Borrower's instructions.
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SECTION 2.2. INTEREST. Interest shall accrue on the unpaid principal
amount of the Term Loan at the following rates per annum: (a) LIBOR
for an Interest Period of three months, plus 0.20% per annum or (b)
the Acceptance Rate, as the case may be.
SECTION 2.3. INTEREST PAYMENT DATES. Interest on the Term Loan shall be
payable (a) on a Quarter Date and (b) on the Maturity Date.
SECTION 2.4. REPAYMENT OF THE TERM LOAN. Borrower shall repay the
principal amount of the Term Loan on the Maturity Date.
SECTION 2.5. OPTIONAL PREPAYMENTS. At the option of Borrower, Borrower may
prepay the Term Loan, in whole or in part from time to time, without
premium or penalty, but with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, that (a) each
partial prepayment shall be in the minimum principal amount of
$1,000,000; (b) each partial prepayment of the Term Loan may occur
only on the last day of the then current Interest Period with respect
to a LIBOR Loan or on the maturity date of the relevant Acceptances;
and (c) each partial prepayment shall be applied to installments of
principal in the inverse order of their maturities.
SECTION 2.6. SELECTION OF SUCCESSIVE INTEREST RATES; CONVERSION. Bank may
request, and Borrower shall agree if so requested, that on the last
day of any Interest Period the Term Loan be continued as a LIBOR Loan
or be converted into Acceptances in the same principal amount or in a
principal amount as reduced by any repayment made pursuant to Section
2.4 hereof, or that on the maturity date of any Acceptances the Term
Loan be continued as Acceptances or be converted into a LIBOR Loan in
the same principal amount or in a principal amount as reduced by any
repayment made pursuant to Section 2.4 hereof, it being agreed by
Borrower that this right of Bank to select the interest rates/funding
mechanics on the Term Loan hereunder is a part of the consideration
for entering into this Agreement and the other Loan Documents.
Notwithstanding the foregoing, if an Event of Default shall exist at
the end of an Interest Period applicable to a LIBOR Loan or on the
maturity date of any Acceptances, such outstanding LIBOR Loan or such
outstanding Acceptances shall be converted to an Alternate Base Rate
Loan.
ARTICLE III
ACCEPTANCES
SECTION 3.1. ACCEPTANCES. In the event Bank elects to fund the Term Loan
with Acceptances, Bank may in its sole discretion in each instance as
provided in this Agreement, accept, in accordance with their tenor,
drafts denominated in minimum denominations of $1,000,000 or such
amounts as Bank may require, drawn on Bank by Borrower in accordance
with Section 3.2(b) hereof and payable to the order of Bank
("Acceptances"). Such drafts presented for acceptance shall be equal
to the principal amount of the Term Loan then outstanding plus an
amount equal to the amount of interest that will accrue for the term
of the
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then current Interest Period. Such interest shall be calculated at
the Acceptance Rate and adjusted for being calculated on a discount
basis. All such drafts shall have a tenor of approximately ninety
(90) days with each date of acceptance being a Quarter Date. The
maturity date of each Acceptance shall be a Quarter Date. No
Acceptance will be created hereunder if its maturity date would
otherwise extend beyond the Maturity Date unless otherwise agreed to
by the parties. In no event shall the aggregate Acceptance
Obligations (net of any discounted interest calculated at the
Acceptance Rate deducted upon acceptance) of Bank at any time exceed
the outstanding principal amount of the Term Loan.
SECTION 3.2. CREATION AND DISCOUNT OF ACCEPTANCES. (a) In the event Bank
elects to fund the Term Loan with Acceptances then, prior to 11:00
A.M. (Atlanta, Georgia time) on any Quarter Date, Bank, in its sole
discretion, may request that Borrower elect the Acceptance Rate. Upon
such election, Bank shall promptly (a) complete the drafts specified
in Section 3.2(b) hereof, (b) duly accept such draft(s), (c) discount
the drafts at the Acceptance Rate, (d) provide Borrower with written
or telephonic notice (i) of Bank's creation of such Acceptances
(specifying the date, the face amount and the maturity date thereof)
and (ii) the Acceptance Rate, and (e) fund the outstanding Term Loan
with the proceeds of such Acceptances.
(b) In the event Bank elects to fund the Term Loan with
Acceptances, Borrower shall either (i) deliver, or cause to be
delivered to Bank, fully executed drafts for acceptance by Bank, or
(ii) authorize Bank by telephone to complete, or cause to be
completed, pre-signed drafts previously delivered to Bank by Borrower
or (iii) authorize Bank by telephone to act as Borrower's agent to
complete and sign drafts as provided hereunder. Borrower hereby
appoints any officer (or any employee under the direct supervision of
an officer) of Bank to act as its agent for the limited purpose of
representing and acting as Borrower's attorney-in-fact in the
completion of any such drafts (including, but not limited to, date,
place of issuance, amount, draft number, date of maturity and
transaction information) and the issuance and safekeeping of any such
drafts. Neither Bank nor its agent(s) shall be liable to Borrower for
executing, failing to execute or for any error in the execution of any
orders or instructions from Borrower, except in the case of Bank's
gross negligence or willful misconduct.
SECTION 3.3. MATURITY. On the maturity date of each Acceptance, Borrower
shall pay to Bank an amount equal to the face amount of each
Acceptance (including all discounted interest deducted upon
acceptance).
SECTION 3.4. SPECIAL INDEMNIFICATION. Borrower shall indemnify and hold
Bank and Bank's affiliates, shareholders, directors, officers,
employees and agents ("Indemnified Persons") harmless from any and all
claims, demands, losses, costs, damages, liabilities and expense,
including attorneys' fees (excluding consequential, incidental or
special damages), which any Indemnified Person may suffer or incur (a)
by reason of Borrower's failure to perform any of the Acceptance
Obligations arising under this Agreement or under any Acceptances
properly created in accordance with Section 3.2 hereof; or (b) arising
out of any transaction or contract
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to which any Acceptance relates, or any goods or documents involved
therein. The indemnity contained in this Section 3.4 shall survive
termination of this Agreement.
ARTICLE IV
GENERAL PAYMENT PROVISIONS
SECTION 4.1. USE OF PROCEEDS. The proceeds of the Term Loan and any
Acceptance shall be used by Borrower solely to finance working capital
of Borrower and other general corporate purposes including, but not
limited to, the acquisition of assets, stock or other ownership
interests.
SECTION 4.2. ILLEGALITY. Notwithstanding any other provisions of this
Agreement, if the introduction of, or any change in the interpretation
or application of any applicable law, regulation or directive shall
make it unlawful for Bank to make, maintain or fund any LIBOR Loan,
the obligation of Bank hereunder to make, maintain or fund such LIBOR
Loan shall forthwith be suspended for the duration of such illegality,
and Borrower shall, at its option, if any LIBOR Loan is then
outstanding, prepay such LIBOR Loan or convert such LIBOR Loan to an
Alternate Base Rate Loan, subject to Section 4.4 hereof.
SECTION 4.3. INCREASED COSTS. In the event that the introduction of, or
any change in or in the interpretation of or application of, any
applicable law, treaty or governmental regulation, or the compliance
by Bank with any guideline, request or directive (whether or not
having the force of law) from any central bank or other U.S. or
foreign financial, monetary or other governmental authority, shall:
(a) subject Bank to any tax of any kind whatsoever with respect to
this Agreement, the Term Loan or any Acceptance or change the basis of
taxation of payments to Bank of principal, interest, fees or any other
amount payable hereunder (except for changes in the rate of tax in the
overall net income of Bank); (b) impose, modify, or hold applicable
any reserve, special deposit, assessment or similar requirement
against assets held by, or deposits in or for the account of,
advances, loans or acceptances by, or other credit extended by or
committed to be extended by, any office of Bank (other than any change
by way of imposition or increase of reserve requirements under
Regulation D of the Board of Governors of the Federal Reserve System
in the case of a LIBOR Loan included in the Reserve Percentage); or
(c) impose on Bank or on the London interbank market any other
condition with respect to this Agreement, the Term Note or any LIBOR
Loan thereunder or any Acceptance; and the result of any of the
foregoing is to increase the cost to Bank of making or committing to
make, renewing or maintaining any LIBOR Loan or any Acceptance or to
reduce the amount of any payment (whether of principal, interest or
otherwise) in respect of any LIBOR Loan or any Acceptance, THEN, IN
ANY CASE, Borrower shall promptly pay from time to time, upon demand
of Bank, such additional amounts as will compensate Bank for such
additional cost or such reduction, as the case may be. Bank shall
certify the amount of such additional cost or reduced amount to
Borrower, including a description of the calculation thereof in
reasonable detail, and such certification shall be conclusive absent
manifest error.
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SECTION 4.4. INDEMNITY. Borrower hereby agrees to indemnify Bank and hold
Bank harmless from any loss, cost or expense (excluding incidental,
consequential or special damages) it may sustain or incur as a direct
consequence of the payment or conversion of a LIBOR Loan on a day
other than the last day of the Interest Period applicable thereto,
including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired or deemed acquired by Bank to fund such LIBOR Loan. Bank
shall certify the amount of its loss or expense to Borrower, and such
certification shall be conclusive absent manifest error.
SECTION 4.5. MAKING OF PAYMENTS. All payments of principal of, or interest
on, the Term Note or of the Acceptance Obligations shall be made in
immediately available funds to Bank at its principal office in
Atlanta, Georgia. All payments due on a date which is not a Business
Day shall be deemed to be due on the next following Business Day,
unless such Business Day falls in the next calendar month, in which
case the due date will be the first preceding Business Day. All such
payments shall be made not later than 11:00 A.M. (Atlanta, Georgia
time) and funds received after that hour shall be deemed to have been
received by Bank on the next following Business Day.
SECTION 4.6. DEFAULT RATE OF INTEREST. If Borrower shall fail to pay on
the due date therefor, whether by acceleration or otherwise, any
principal owing under the Term Note or this Agreement or the face
amount of any Acceptance on its maturity date, then interest shall
accrue on such unpaid principal from the due date until and including
the date on which such principal or other amount is paid in full at
(i) the then applicable interest rate with respect to a LIBOR Loan
until the end of the Interest Period applicable thereto plus an
additional two per cent (2%) per annum and (ii) thereafter and with
respect to Acceptances or Alternate Base Rate Loans, a rate of
interest equal to the Alternate Base Rate plus an additional two
percent (2.0) per annum ("Default Rate").
SECTION 4.7. CALCULATION OF INTEREST. Interest payable on the Term Note
and the discount determined on each Acceptance shall be calculated on
the basis of a year of 360 days and shall be paid for the actual
number of days elapsed.
SECTION 4.8. EURODOLLAR DEPOSITS UNAVAILABLE OR INTEREST RATE
UNASCERTAINABLE. In the event Bank shall have determined, in good
faith and reasonably, that United States dollar deposits of the
relevant amount for the relevant Interest Period for LIBOR Loans are
not available to the Bank in the London Interbank Eurodollar market or
that, by reason of circumstances affecting such market, adequate and
reasonable means do not exist for ascertaining LIBOR applicable to
such determination to Borrower then (i) any notice of the Term Loan to
a LIBOR Loan previously given and not yet converted shall be deemed a
notice to make an Alternate Base Rate Loan unless Borrower notifies
Bank to the contrary, and (ii) Borrower shall be obligated either to
prepay or to convert any outstanding LIBOR Loan on the last day of the
then current Interest Period with respect thereto.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Bank that:
SECTION 5.1. CORPORATE EXISTENCE. Borrower is a corporation duly organized
and in good standing under the laws of the State of Ohio.
SECTION 5.2. AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance by Borrower of this Agreement, the Term Note and all other
Loan Documents are within Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not and will not
contravene or conflict with any provision of applicable law in effect
on the date hereof or of the Amended Articles of Incorporation or
Regulations of Borrower or of any agreement for borrowed money or
other material agreement binding upon Borrower. Borrower has duly
executed and delivered this Agreement.
SECTION 5.3. VALIDITY AND BINDING NATURE. This Agreement, the Term Note
and all other Loan Documents are legal, valid and binding obligations
of Borrower enforceable against Borrower in accordance with their
respective terms.
SECTION 5.4. LITIGATION AND LIENS. To the best of Borrower's knowledge, no
litigation or proceeding is pending which would, if successful, have a
Material adverse impact on the financial condition of Borrower and the
Consolidated Subsidiaries taken as a whole, which is not already
reflected in Borrower's Financial Reports delivered to Bank prior to
the date of this Agreement. The Internal Revenue Service has not
alleged any Material default by Borrower in the payment of any tax or
threatened to make any Material assessment in respect thereof which
would have or reasonably could have a Material adverse impact on the
financial condition of Borrower and the Consolidated Subsidiaries,
taken as a whole.
SECTION 5.5. ERISA COMPLIANCE. Neither Borrower nor any Consolidated
Subsidiary has incurred any Material accumulated funding deficiency
within the meaning of ERISA and the regulations thereunder. No
Reportable Event has occurred with respect to any Plan which would
have a Material adverse financial impact on Borrower or any of its
Consolidated Subsidiaries, taken as a whole. The Pension Benefit
Guaranty Corporation, established under ERISA, has not asserted that
Borrower or any Consolidated Subsidiary has incurred any Material
liability in connection with any Plan. No Material lien has been
attached and no person has threatened to attach such a lien on any
property of Borrower and any Consolidated Subsidiary as a result of
Borrower's or any Consolidated Subsidiary's failure to comply with
ERISA.
SECTION 5.6. ENVIRONMENTAL MATTERS. To the best of Borrower's knowledge,
Borrower and each Subsidiary is in substantial compliance with all
applicable existing laws and regulations (other than laws and
regulations the validity or applicability of which are being contested
by Borrower or a Subsidiary, as the case may be, in good faith by
appropriate
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proceedings diligently prosecuted) relating to environmental control
in all jurisdictions where Borrower or any Subsidiary is presently
doing business and Borrower and each Subsidiary (to the extent
applicable to its operations) is in substantial compliance with the
Occupational Safety and Health Act of 1970 and all rules, regulations
and applicable orders thereunder (other than rules, regulations and
orders the validity or applicability of which are being contested by
Borrower or a Subsidiary, as the case may be, in good faith by
appropriate proceedings diligently prosecuted).
SECTION 5.7. FINANCIAL REPORTS. The Financial Reports of Borrower and the
Consolidated Subsidiaries, furnished to Bank prior to the date of this
Agreement or from time to time pursuant to this Agreement shall be
true and complete, prepared in accordance with generally accepted
accounting principles, except as stated therein, and fairly present
Borrower's and its Consolidated Subsidiaries' financial condition and
the results of their operations for the period encompassed by such
Financial Reports. Since the dates of Borrower's most recent
Financial Reports until the date of this Agreement there has been no
material adverse change in the consolidated financial condition of
Borrower and the Consolidated Subsidiaries taken as a whole.
SECTION 5.8. REGULATION U. Neither Borrower nor any of its Consolidated
Subsidiaries is generally engaged in the business of purchasing or
selling margin stock or extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System). Bank
represents and warrants to Borrower that it is not relying on and will
not rely on any margin stock (as described above) in determining
whether to extend a loan to Borrower under this Agreement.
SECTION 5.9. GOVERNMENT REGULATION. Neither Borrower nor any of its
Consolidated Subsidiaries is registered or is required to be
registered as a public utility under the Public Utility Holding
Company Act of 1935 or as an investment company under the Investment
Company Act of 1940.
SECTION 5.10. TAXES. Borrower and its Consolidated Subsidiaries have filed
all United States federal income tax returns and all other material
tax returns which are required to have been filed by them (subject to
any available extensions) and have paid all taxes indicated as due on
such returns except for any such taxes being contested by Borrower or
a Subsidiary, as the case may be, in good faith by appropriate
proceedings diligently prosecuted (Borrower has made adequate and
reasonable provision for all material taxes not yet due and payable),
if any, and all material assessments, if any.
SECTION 5.11. DEFAULTS. No Possible Default exists which would have or
reasonably could have a Material adverse impact on the financial
condition of Borrower and the Consolidated Subsidiaries, taken as a
whole.
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ARTICLE VI
COVENANTS
Until all obligations of Borrower hereunder, under the Term Note and
under all Acceptances are satisfied and paid in full, Borrower agrees that,
unless at any time Bank shall otherwise expressly agree in writing:
SECTION 6.1. INSURANCE. Borrower will (a) maintain insurance to such
extent and against such hazards and liabilities as is commonly
maintained by companies similarly situated, and (b) upon Bank's
written request, furnish to Bank such information about Borrower's and
its Consolidated Subsidiaries' insurance as Bank may from time to time
reasonably request, which information shall be prepared in form and
detail reasonably satisfactory to Bank.
SECTION 6.2. FINANCIAL REPORTS. Borrower will furnish to Bank:
(i) within sixty (60) days after the end of each of the
first three quarter-annual periods of each of its
fiscal years (and, in any event, in each case as soon
as available), the quarterly Financial Report of
Borrower and the Consolidated Subsidiaries as at the
end of that period, prepared on a consolidated basis;
(ii) within ninety (90) days after the end of each of its
fiscal years (and, in any event, in each case as soon
as available), the annual Financial Report of
Borrower and the Consolidated Subsidiaries for that
year prepared on a consolidated basis;
(iii) within sixty (60) days after the end of each of its
quarterly accounting periods and within ninety (90)
days after the end of its annual accounting period, a
statement signed by a financial officer of Borrower
reflecting compliance with Section 6.3 hereof and to
the effect that no Event of Default has occurred and
is continuing or, if there is any such event,
describing it and the steps being taken, if any, to
cure such event;
(iv) promptly after filing with the Securities and
Exchange Commission, any Form 8-K or Schedule 13D
filings applicable to Borrower (or any successor
forms or schedules promulgated by the Securities and
Exchange Commission from time to time which encompass
the matters currently addressed in Form 8-K and
Schedule 13D);
(v) written notice of any change in the rating assigned
to Borrower's senior unsecured long-term debt by
Xxxxx'x, S&P or Duff & Xxxxxx within thirty (30) days
of such change; and
(vi) such other financial information regarding Borrower
as Bank may reasonably request.
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SECTION 6.3. NET WORTH. Borrower will not permit its Consolidated Net
Worth at any time to fall below Eight Hundred Million Dollars
($800,000,000).
SECTION 6.4. REGULATIONS U AND X. Borrower will not nor will it permit any
Subsidiary to take any action that would result in any non-compliance
of the loan made hereunder with Regulation U and X of the Board of
Governors of the Federal Reserve System. Borrower's use of proceeds
from the loan made pursuant to this Agreement will not cause a
violation of Regulation U or X.
SECTION 6.5. MERGER AND SALE OF ASSETS. Borrower will not merge or
consolidate with nor permit any Consolidated Subsidiary to merge or
consolidate with any other corporation or sell, lease or transfer or
otherwise dispose of all or, during any twelve (12) month period, a
substantial part of its assets to any person or entity (except as
otherwise provided herein); provided, however, if no Possible Default
shall then exist or immediately thereafter will begin to exist:
(i) Any Consolidated Subsidiary may merge with (a)
Borrower (provided that Borrower shall be the
continuing or surviving corporation) or (b) any one
or more other Consolidated Subsidiaries provided that
either the continuing or surviving corporation shall
be a Wholly-Owned Consolidated Subsidiary, or after
giving effect to any merger pursuant to this
sub-clause (b), Borrower and/or one or more
Wholly-Owned Consolidated Subsidiaries shall own not
less than the same percentage of the outstanding
Voting Stock of the continuing or surviving
corporation as Borrower and/or one or more
Wholly-Owned Consolidated Subsidiaries owned of the
merged Consolidated Subsidiary immediately prior to
such merger,
(ii) Any Consolidated Subsidiary may sell, lease, transfer
or otherwise dispose of any of its assets to (a)
Borrower, (b) any Wholly-Owned Consolidated
Subsidiary or (c) any Consolidated Subsidiary of
which Borrower and/or one or more Wholly-Owned
Consolidated Subsidiaries shall own not less than the
same percentage of Voting Stock as Borrower and/or
one or more Wholly-Owned Consolidated Subsidiaries
then own of the Consolidated Subsidiary making such
sale, lease, transfer or other disposition,
(iii) Borrower may sell the stock or assets of any
Consolidated Subsidiary if such sale or other
disposition is determined by the board of directors
of Borrower to be in the best interests of Borrower
and such sale is for a consideration which represents
the fair value (as determined in good faith by the
board of directors of Borrower) thereof at the time
of such sale of such stock or assets,
(iv) Borrower may merge with any other corporation,
provided that Borrower shall be the surviving
corporation,
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(v) Borrower or any Consolidated Subsidiary may sell all
or any part of the assets of any of its divisions or
operations to a third party if such sale or other
disposition is determined by the board of directors
of Borrower and/or such Consolidated Subsidiary, as
the case may be, to be in the best interests of
Borrower and/or such Consolidated Subsidiary, as the
case may be, and such sale is for a consideration
which represents the fair value (as determined in
good faith by the board of directors of Borrower)
thereof at the time of such sale or other disposition
of such assets,
(vi) Borrower or any Subsidiary may sell or transfer all
or any part of the assets of any of its divisions or
operations to any Subsidiary.
In the event there occurs a Change in Control of Borrower, the Term
Loan or all Acceptance Obligations, as the case may be, shall be
immediately due and payable without notice to Borrower. For purposes
of this paragraph, a "Change of Control" shall occur if:
(a) there shall be consummated (i) any
consolidation or merger of Borrower in which Borrower
is not the continuing or surviving corporation or
pursuant to which shares of Borrower's common stock
would be converted into cash, securities or other
property, other than a merger of Borrower in which
the holders of Borrower's common stock immediately
prior to the merger have substantially the same
proportionate ownership of common stock of the
surviving corporation immediately after the merger,
or (ii) any sale, lease, exchange or transfer (in one
transaction or a series of related transactions) of
fifty percent (50%) or more of the assets or earning
power of Borrower;
(b) any "person" (as such term is used in
Sections as 13(d) and 14(d)(2) of the Exchange Act,
as amended, other than Borrower or any employee
benefit or stock ownership plan sponsored by
Borrower, or any person or entity organized,
appointed or established by Borrower for or pursuant
to the terms of any such Plan, shall become the
beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of securities of Borrower
representing fifteen percent (15%) or more of the
combined voting power of Borrower's then outstanding
securities ordinarily (and apart from rights accruing
in special circumstances) having the right to vote in
the election of directors, as a result of a tender or
exchange offer, open market purchases, privately
negotiated purchases or otherwise; or
(c) during any period of two (2) consecutive
years, individuals who at the beginning of such
period constituted the board of directors of Borrower
and any new director whose election by such board of
directors or nomination for election by Borrower's
shareholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of
the period or whose election or nomination for
election was previously so approved, cease for any
reason to constitute a majority thereof.
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Notwithstanding subparagraph (a) through (c) above,
with respect to the transactions set forth in subparagraphs
(a) and (b) above, a Change of Control shall not be deemed to
have occurred if any such transaction (i) is approved by a
vote of at least two-thirds (2/3) of the directors of
Borrower and (ii) at the time of such vote, at least
two-thirds (2/3) of such directors then in office were
members of the board of directors of Borrower immediately
prior to such transaction.
SECTION 6.6. NOTICE. As long as any indebtedness of Borrower remains
outstanding hereunder, Borrower will cause its treasurer, or in his
absence another representative of Borrower designated by the
treasurer, to promptly notify Bank whenever any Material Possible
Default may occur or any warranty made in Article V hereof or
elsewhere in this Agreement may for any reason cease in any Material
respect to be true and complete.
SECTION 6.7. LIENS. Borrower will not and will not permit any Consolidated
Subsidiary to create, assume or suffer to exist any lien upon any of
its property or assets (hereinafter "Properties") whether now owned or
hereafter acquired without effectively providing that any borrowings
under this Agreement shall be secured equally and ratably with all
other indebtedness thereby secured; provided that this Section shall
not apply to the following:
(i) liens for taxes not yet due or which are being
actively contested in good faith by appropriate
proceedings,
(ii) other liens incidental to the conduct of its business
or the ownership of its Properties which were not
incurred in connection with the borrowing of money or
the obtaining of advances or credit, and which do not
in the aggregate materially detract from the value of
its Properties or materially impair the use thereof
in the operation of its business,
(iii) liens on Properties of a Consolidated Subsidiary to
secure obligations of such Consolidated Subsidiary to
Borrower or another Consolidated Subsidiary,
(iv) liens on Properties of Borrower and/or its
Consolidated Subsidiaries existing on the date hereof,
(v) any lien existing on any Properties of any
corporation at the time it becomes a Consolidated
Subsidiary, existing prior to the time of acquisition
upon any Properties acquired by Borrower or any
Consolidated Subsidiary through purchase, merger,
consolidation or otherwise, whether or not assumed by
Borrower or such Consolidated Subsidiary,
(vi) any lien placed upon any asset other than real
property (hereinafter in this subparagraph (vi)
"Asset") at the time of acquisition by Borrower or
any Consolidated Subsidiary to secure all or a
portion of [or to secure indebtedness
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incurred prior to, at the time of, or (in the case of
any Asset acquired with the intent to obtain
subsequent financing thereof secured by a lien)
within one (1) year after the acquisition of such
Asset for the purpose of financing all or a portion
of] the purchase price thereof, provided that any
such lien shall not encumber any other Properties of
Borrower or such Consolidated Subsidiary,
(vii) any lien placed upon any real property now owned or
hereafter acquired by Borrower or any of its
Subsidiaries securing indebtedness in an amount up to
eighty percent (80%) of the fair market value of such
real property,
(viii) liens in favor of the United States of America or any
department or agency thereof, or in favor of any
state government or political subdivision thereof, or
in favor of a prime contractor under a government
contract of the United States, or of any state
government or any political subdivision thereof, and,
in each case, resulting from acceptance of partial,
progress, advance or other payments in the ordinary
course of business under government contracts of the
United States, or of any state government or any
political subdivision thereof, or subcontracts
thereunder,
(ix) liens created, assumed or existing in connection with
a tax-free financing,
(x) any lien renewing, extending or refunding any lien
permitted by clauses (iv), (v), (vi), (vii), (viii)
and (ix) above, provided that the principal amount
secured is not materially increased, and the lien is
not extended to other Properties, and
(xi) liens other than those permitted by clauses (i)
through (x) above, provided that the aggregate amount
of all indebtedness secured by liens permitted by
this clause (xi) shall not at any time exceed fifteen
percent (15%) of Consolidated Net Worth.
SECTION 6.8. ERISA COMPLIANCE. Neither Borrower nor any Consolidated
Subsidiary will incur any Material accumulated funding deficiency
within the meaning of the ERISA and the regulations thereunder, or any
Material liability to the Pension Benefit Guaranty Corporation or any
successor thereto in connection with any Plan. Borrower will furnish
to Bank as soon as possible and in any event within thirty (30) days
after Borrower or such Consolidated Subsidiary knows or has reason to
know that any Material Reportable Event with respect to any Plan has
occurred a statement of the chief financial officer of Borrower or
such Consolidated Subsidiary setting forth details as to such
Reportable Event and the action which Borrower or such Consolidated
Subsidiary proposes to take with respect thereto, together with a copy
of the notice of such Reportable Event given to the Pension Benefit
Guaranty Corporation if a copy of such notice is available to Borrower
or such Consolidated Subsidiary.
SECTION 6.9. NOTICE OF DEFAULT. Borrower will, and will cause each
Consolidated Subsidiary to, give prompt notice in writing to Bank of
the occurrence of any Possible Default
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and of any other development, financial or otherwise, with respect to
which there is a significant probability of a Material adverse impact
on Consolidated Net Worth or on Borrower's ability to repay its
obligation to Bank hereunder.
SECTION 6.10. CONDUCT OF BUSINESS. Borrower will, and will cause each
Consolidated Subsidiary to, carry on and conduct its business in
substantially the same manner as it is presently conducted and to do
all things necessary to remain duly incorporated, validly existing and
in good standing as a corporation in its jurisdiction of incorporation
and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
SECTION 6.11. TAXES. Borrower will, and will cause each Consolidated
Subsidiary to, pay when due all taxes, assessments and governmental
charges and levies upon it or its income, profits or property, except
those which are being contested in good faith by appropriate
proceedings.
SECTION 6.12. ENVIRONMENTAL. Borrower will use its best good faith efforts
to comply and to cause each Subsidiary to comply with all such laws
and regulations (other than laws and regulations the validity or
applicability of which are being contested by Borrower or a
Subsidiary, as the case may be, in good faith by appropriate
proceedings diligently prosecuted) which may be legally imposed in the
future in jurisdictions in which Borrower or any Subsidiary may then
be doing business.
ARTICLE VII
EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default:
SECTION 7.1. NON-PAYMENT OF TERM NOTE OR INTEREST. If the interest on the
Term Note shall not be paid in full when due and payable and shall
remain unpaid for a period of three (3) consecutive business days
after written notice thereof to Borrower from Bank. If the principal
on the Term Note or the Acceptance Obligations shall not be paid in
full when due and payable.
SECTION 7.2. COVENANTS. If Borrower shall fail or omit to perform and
observe any agreement or other provision (other than those referenced
in Section 7.1 hereof) contained or referred to in this Agreement or
in any Related Writing that is on Borrower's part to be complied with,
and such failure or omission, if not fully corrected within thirty
(30) days after the giving of written notice thereof to Borrower by
Bank that such failure or omission would have or reasonably could have
a Material adverse impact on the financial condition of Borrower and
the Consolidated Subsidiaries, taken as a whole (provided, however,
that the financial covenant in Section 6.3 shall be applied without
regard to any materiality standard).
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SECTION 7.3. WARRANTIES. If any representation, warranty or statement made
in or pursuant to this Agreement or any Related Writing or any other
information furnished by Borrower to Bank or any other holder of the
Term Note, shall be false or erroneous in any respect which would have
or reasonably could have a Material adverse impact on the financial
condition of Borrower and the Consolidated Subsidiaries, taken as a
whole.
SECTION 7.4. CROSS DEFAULT. If Borrower or any of its Consolidated
Subsidiaries (i) default in the payment of principal or interest due
and owing upon any other Material obligation for borrowed money beyond
any period of grace provided with respect thereto or (ii) default in
the performance of any other agreement, term or condition contained in
any agreement under which such obligation is created, and any such
default is not waived by the holders of such agreement or instrument,
and if the effect of such unwaived default would (a) accelerate the
maturity of such indebtedness or permit the holder thereof to cause
such indebtedness to become due prior to its stated maturity and (b)
have or reasonably could have a Material adverse impact on the
financial condition of Borrower and the Consolidated Subsidiaries,
taken as a whole.
SECTION 7.5. TERMINATION OF OPERATIONS, BANKRUPTCY OR INSOLVENCY. If
Borrower or a Consolidated Subsidiary representing in excess of ten
percent (10%) of total consolidated assets of Borrower and the
Consolidated Subsidiaries shall (i) discontinue business (except as
permitted under Section 6.5 hereof) or (ii) generally not pay (or
admit in writing its inability to pay) its debts as such debts become
due, or (iii) make a general assignment for the benefit of creditors,
or (iv) apply for or consent to the appointment of a receiver, a
custodian, a trustee, an interim trustee or a liquidator of all or a
substantial part of its assets, or (v) be adjudicated an insolvent
debtor or have entered against it an order for relief under Title 11
of the United States Code, as the same may be amended from to time to
time, or (vi) file a voluntary petition in bankruptcy or file a
petition or an answer seeking reorganization or an arrangement with
creditors or seeking to take advantage of any other law (whether
federal or state) relating to relief of debtors, or admit (by answer,
by default or otherwise) the substantive allegations of a petition
filed against it in any bankruptcy, reorganization, insolvency or
other comparable proceeding (whether federal or state) relating to
relief of debtors, or (vii) suffer or permit to continue unstayed and
in effect for sixty (60) consecutive days any judgment, decree or
order entered by a court of competent jurisdiction, which approves a
petition seeking its reorganization or appoints a receiver, custodian,
trustee, interim trustee or liquidator of all or a substantial part of
its assets.
ARTICLE VIII
EFFECT OF DEFAULT
SECTION 8. EFFECT OF EVENT OF DEFAULT. Upon the occurrence and
continuance of any Event of Default, the principal and all accrued
interest due under the Term Note or the Acceptance Obligations shall
become immediately due and payable, without notice and Bank may
exercise any remedies available under law or in equity.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. BANK'S INDEPENDENT INVESTIGATION. Bank, by its signature to
this Agreement, acknowledges and agrees that it has made its own
independent investigation of the creditworthiness, financial condition
and affairs of Borrower and any Subsidiary in connection with the Term
Loan.
SECTION 9.2. NO WAIVER; CUMULATIVE REMEDIES. No omission or course of
dealing on the part of Bank or the holder of the Term Note in
exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such
right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy hereunder. The
remedies herein provided are cumulative and in addition to any other
rights, powers or privileges held by operation of law, by contract or
otherwise.
SECTION 9.3. AMENDMENTS. Except as otherwise specifically provided herein,
no amendment, modification, termination, or waiver of any provision of
this Agreement or the Term Note, nor consent to any variance
therefrom, shall be effective unless the same shall be in writing and
signed by Borrower Bank and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which given.
SECTION 9.4. CONFIDENTIALITY. Unless Borrower otherwise agrees in writing,
Bank hereby agrees to keep all Proprietary Information (as defined
below) confidential and not to disclose or reveal any Proprietary
Information to any person or entity other than Bank's directors,
officers, employees, affiliates, and agents, and then only on a
confidential need-to-know basis; provided, however that Bank may
disclose Proprietary Information (a) as required by law, rule,
regulation, or judicial process, (b) to its attorneys and accountants,
(c) as requested or required by a state, federal, or foreign authority
or examiner regulating banks or banking, or (d) to actual or potential
assignees or participants as permitted by Section 9.9 hereof who agree
to be bound by the provisions of this Section. For purposes of this
Agreement, the term "Proprietary Information" shall include all
information about Borrower, any Subsidiary, or any of their respective
affiliates which has been furnished by Borrower, any Subsidiary, or
any of their respective affiliates, whether furnished before or after
the date hereof, and regardless of the manner furnished; provided,
however, that Proprietary Information shall not include information
which (x) is or becomes generally available to the public other than
as a result of a disclosure by Bank not permitted by this Agreement,
(y) was available to Bank on a nonconfidential basis prior to its
disclosure to Bank by Borrower, any Subsidiary, or any of their
respective affiliates, or (z) becomes available to Bank on a
nonconfidential basis from a person and/or entity other than Borrower,
any Subsidiary, or any of their respective affiliates who, to the best
knowledge of Bank, is not otherwise bound by a confidentiality
agreement with Borrower, any Subsidiary, or any of their respective
affiliates, or, to the best knowledge of Bank, is not otherwise
prohibited from transmitting the information to Bank.
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SECTION 9.5. NOTICES. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to
Borrower or a Subsidiary, mailed or delivered to it, addressed to it
at the address of Borrower herein specified, and if to Bank, mailed or
delivered to it, addressed to the address of Bank specified in this
Agreement. All notices, statements, requests, demands and other
communications provided for hereunder shall be deemed to be given or
made when received.
If to Bank: SunTrust Bank, Atlanta
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx,
Assistant Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Borrower: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx,
Director, Treasury Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 9.6. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when so executed and
delivered shall be deemed to be an original and when taken together
shall constitute one and the same agreement.
SECTION 9.7. ENTIRE AGREEMENT. This Agreement supersedes any prior
agreement or understanding of the parties hereto, and contains the
entire agreement of the parties hereto, with respect to the matters
covered hereby.
SECTION 9.8. GOVERNING LAW. This Agreement, and the Term Note shall be
governed by and construed in accordance with the laws of the State of
Georgia and the respective rights and obligations of Borrower and Bank
shall be governed by Georgia law.
SECTION 9.9. SEVERABILITY OF PROVISIONS; CAPTIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. The several captions to sections
and subsections herein are inserted for convenience only and shall be
ignored in interpreting the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date indicated above.
THE XXXXXXX-XXXXXXXX COMPANY SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------------------------- -----------------------------------
XXXXX X. XXXXXXX XXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT- Title: ASSISTANT VICE PRESIDENT
FINANCE, TREASURER AND
CHIEF FINANCIAL OFFICER
By: /s/ Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxxx
---------------------------------------- -------------------------------------
XXXXX X. XXXXXXXXXXX XXXXX X. XXXXX
Title: ASSISTANT SECRETARY AND Title: VICE PRESIDENT
CORPORATE DIRECTOR OF TAXES
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