EXHIBIT (B)(10)
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), made as of
this 5th day of February, 1996 among Xxxxxxx Corporation, a Delaware corporation
(the "Borrower"), NationsBank, N.A. (South) (formerly known as NationsBank of
Georgia, N.A.) and The Chase Manhattan Bank, N.A. as Managing Agents (the
"Managing Agents"), and NationsBank, N.A. (South) (formerly known as NationsBank
of Georgia, N.A.), The Chase Manhattan Bank, N.A., The First National Bank of
Boston, NBD Bank, Xxxxxx Trust and Savings Bank, X.X. Xxxxxx Delaware, and
SunTrust Bank, Savannah, N.A. (formerly known as Trust Company of Georgia Bank
of Savannah, N.A.) (collectively the "Lenders"), The Chase Manhattan Bank, N.A.,
as syndications agent, and NationsBank, N.A. (South) (formerly known as
NationsBank of Georgia, N.A.), as administrative agent for the Lenders (the
"Administrative Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent, the Managing Agents
and the Lenders are parties to that certain Credit Agreement dated as of
December 15, 1993, as amended by that certain First Amendment to Credit
Agreement dated as of March 29, 1994, that certain Second Amendment to Credit
Agreement dated as of March 30, 1994, that certain Third Amendment to Credit
Agreement dated as of December 31, 1994 and that certain Fourth Amendment to
Credit Agreement dated as of June 29, 1995 (as so amended, the "Credit
Agreement"); and
WHEREAS, the parties to the Credit Agreement wish to amend the Credit
Agreement in certain respects as provided for herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is acknowledged, the parties agree that all
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement, and further agree as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions, is hereby
amended by deleting the existing definitions of "Borrowing Base," "Cash Flow,"
"Commitment Ratios," "Eligible Inventory," "Revolving Loan Commitment,"
"Revolving Loan Notes," "Term Loan," "Term Loan Commitment" and "Term Loan
Notes" in their entireties and by substituting the following therefor:
(i) "`Borrowing Base' shall mean, at any particular
time, the sum of:
(a) 80% of the Value of the Eligible Accounts; plus
(b) 55% of the Value of the Eligible Xxxxxxx Inventory;
plus
(c) 55% of the Value of the Eligible Xxxxxxxxx Inventory;
plus
(d) 55% of the Value of the Eligible CCI Inventory; plus
(e) 45% of the Value of the Eligible Xxxxxxx Inventory;
minus the amount of reserves which the Administrative Agent
shall have established, in the exercise of its reasonable business
judgment, for such purposes as the Administrative Agent shall have
deemed necessary, including, without limitation, for (i) price
adjustments, damages, and unearned discounts; (ii) shrinkage, spoilage
and obsolescence of Inventory; (iii) special order goods and deferred
shipment sales; and (iv) market value declines; minus, the portion of
the Borrowing Base attributed to any Independent Sales Representative
Inventory in excess of $2,000,000 in the aggregate."
(ii) "`Cash Flow' shall mean, for the Borrower and its
Subsidiaries on a consolidated basis for any period, the sum of (a)
Operating Income, plus (b) Other Income, plus (c) to the extent
deducted in determining Operating Income, depreciation, amortization
and other non-cash charges, plus (d) to the extent deducted in
determining Operating Income or Other Income for such period, (i) legal
and accounting expenses in an aggregate amount not to exceed $530,000
relating to the Borrower's proposed acquisition of Communication Cable,
Inc., (ii) cash severance and related benefit payments in an aggregate
amount not to exceed $915,000 paid to employees of Xxxxxxx Electric
Corporation, a Delaware corporation, in connection with its down-sizing
during the 1994 calendar year, and (iii) legal, accounting and other
cash expenses incurred in conjunction with the preparation for and
closing of the Borrower's acquisition of Xxxxxxxxx, all as determined
in accordance with GAAP. Notwithstanding the foregoing, in the event
CCI becomes a Subsidiary of the Borrower, for purposes of calculating
the Cash Flow attributed to CCI and its Subsidiaries for the first four
(4) quarters during which CCI is a Subsidiary of the Borrower, such
Cash Flow shall be determined on a historical pro forma basis as if the
acquisition of CCI had been consummated as a 'pooling of interest' in
accordance with GAAP on the first day of such four (4) quarter period."
(iii) "`Commitment Ratios' shall mean the percentages in which
the Lenders are severally bound to satisfy the Revolving Loan
Commitment or the Term Loan
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Commitment or the aggregate of both such Commitments, as the context
may require, which are, as of the date of the Fifth Amendment to this
Agreement, as follows:
Portion of Revolving
Revolving Loan Portion of Term Loan Aggregate
Loan Commitment Term Loan Commitment Commitment
Lender Commitment Ratio Commitment Ratio Ratio
NationsBank, N.A. (South) $18,230,769.25 23.3728% $14,371,794.89 23.1803% 23.2875%
The Chase Manhattan Bank, $18,230,769.25 23.3728% $14,371,794.89 23.1803% 23.2875%
N.A.
The First National Bank of $ 9,999,999.99 12.8205% $ 7,948,717.94 12.8205% 12.8205%
Boston
NBD Bank $ 9,999,999.99 12.8205% $ 7,948,717.94 12.8205% 12.8205%
Xxxxxx Trust and Savings $ 9,999,999.99 12.8205% $ 7,948,717.94 12.8205% 12.8205%
Bank
X. X. Xxxxxx Delaware $ 9,999,999.99 12.8205% $ 7,948,717.94 12.8205% 12.8205%
SunTrust Bank, Savannah, $ 1,538,461.54 1.9724% $ 1,461,538.46 2.3573% 2.1429%
N.A. (f/k/a Trust Company
of Georgia Bank of
Savannah, N.A.)
The Commitment Ratios may change upon the sale of
assignments pursuant to Section 11.5 hereof."
(iv) "`Eligible Inventory' shall mean, collectively,
Eligible Xxxxxxx Inventory, Eligible Xxxxxxxxx Inventory,
Eligible CCI Inventory and Eligible Xxxxxxx Inventory."
(v) "`Revolving Loan Commitment' shall mean the several
obligations of the Lenders to advance the aggregate sum of up to
$78,000,000 to the Borrower in accordance with their respective
Commitment Ratios and pursuant to the terms hereof, as such obligations
shall be reduced from time to time pursuant to Section 2.5 hereof, and
as such obligations may be further reduced from time to time pursuant
to the terms hereof."
(vi) "`Revolving Loan Notes' shall mean those certain amended
and restated promissory notes in the aggregate original principal
amount of $78,000,000, one issued to each of the Lenders by the
Borrower, each one substantially in the form of Exhibit B to the Fourth
Amendment to this Agreement; any other promissory notes issued by the
Borrower to evidence Loans made under the Revolving Loan Commitment;
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and any extensions, renewals or amendments to, or
replacements of, the foregoing."
(vii) "`Term Loan' shall mean the Loans advanced to the
Borrower under the Term Loan Commitment on the Agreement Date, upon the
making of the Supplemental Term Loan to the Borrower and upon the
making of the CCI Term Loan to the Borrower."
(viii) "`Term Loan Commitment' shall mean the several
obligations of the Lenders to advance the sum of up to $62,000,000 to
the Borrower in accordance with their respective Commitment Ratios and
pursuant to the terms hereof, as such obligations may be reduced from
time to time pursuant to the terms hereof."
(ix) "`Term Loan Notes' shall mean those certain amended and
restated promissory notes dated as of the date of the Fifth Amendment
to this Agreement in the aggregate original principal amount of
$62,000,000, one issued to each of the Lenders by the Borrower, each
one substantially in the form of Exhibit D to the Fourth Amendment to
this Agreement; any other promissory notes issued by the Borrower to
evidence Loans made under the Term Loan Commitment; and any extensions,
renewals or amendments to, or any replacements of, the foregoing."
(b) Article 1 of the Credit Agreement, Definitions, is hereby
further amended by deleting the parenthetical phrase appearing before clause (a)
of the definition of "Eligible Xxxxxxx Inventory" in its entirety and inserting
the following parenthetical phrase in lieu thereof:
"(other than Xxxxxxx, Xxxxxxxxx and CCI and their respective
Subsidiaries)"
(c) Article 1 of the Credit Agreement, Definitions, is hereby
further amended by deleting the reference to "Section 7.1(j)" appearing in
clause (k) of the definition of "Permitted Liens" and inserting the phrase
"Section 7.1(l) in lieu therof.
(d) Article 1 of the Credit Agreement, Definitions, is
hereby further amended by adding the following definitions in the
correct alphabetical order:
(i) "`CCI' shall mean Communication Cable, Inc., a
North Carolina corporation."
(ii) "`CCI Secured Loans' shall mean such portion of the CCI
Term Loan and the Excess Revolving Loans which equal, in aggregate
principal amount, one-half (1/2) of the
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purchase price paid by Xxxxxxx Acquisition Corp. (or on its
behalf) for shares of the capital stock of CCI."
(iii) "`CCI Term Loan' shall mean the Loans advanced to the
Borrower under the Term Loan Commitment in accordance with Section
2.1(a) hereof on or after the date of the Fifth Amendment to this
Agreement, which Loans shall not exceed $15,000,000 in the aggregate."
(iv) "`Eligible CCI Inventory' shall mean, at any particular
date, the portion of the Inventory of CCI and its Subsidiaries which:
(a) is, in the option of the Administrative Agent, not obsolete,
slow-moving, unmerchantable, off-season, out-of-season, or in the case
of raw materials and work-in-process Inventory, unworkable, and as to
finished goods Inventory, is readily salable in its current form; (b)
as to finished goods Inventory is new and does not constitute any
finished goods that were returned to CCI or any of its Subsidiaries due
to defect or damage; (c) in the case of work-in-process Inventory on
such date, is in the process of being manufactured on current running
lines and in accordance with current manufacturing techniques and
styles and (d) fulfills each and every one of the Inventory Eligibility
Requirements."
(v) "`Excess Revolving Loans' shall mean Loans made under the
Revolving Loan Commitment which cause the aggregate principal amount
outstanding under the Revolving Loan Commitment to exceed $53,000,000.
(vi) "`Value of the Eligible CCI Inventory' shall mean, at any
particular date: (a) the value of the Eligible CCI Inventory, valued in
accordance with the "First-In, First-Out" method of accounting and
otherwise in accordance with GAAP, minus (b) the amount of any reserve
required by the Administrative Agent in the exercise of its reasonable
judgment."
2. Amendments to Article 2. Article 2 of the Credit
Agreement, Credit Facilities, is hereby amended as follows:
(a) Section 2.1(a). Section 2.1(a) of the Credit Agreement,
Term Loan Facility, is hereby amended by deleting the existing Section
2.1(a) in its entirety and by inserting the following in lieu thereof:
"(a) Term Loan Facility. The Lenders agree,
severally in accordance with their respective
Commitment Ratios with respect to the Term Loan
Commitment and not jointly, upon the terms and subject
to the conditions of this Agreement, to advance
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$38,000,000 of the Term Loan on the Agreement Date, to make
the Supplemental Term Loan on or after the effective date of
the Fourth Amendment to this Agreement and to make the CCI
Term Loan on or after the effective date of the Fifth
Amendment to this Agreement. Subject to the terms hereof,
Advances of the Term Loan may be repaid and then reborrowed as
provided in Sections 2.2(b)(ii) and 2.2(c)(ii) hereof so as to
change the Interest Rate Basis or Interest Periods for
Advances then outstanding; provided, however, that there shall
be no increase in the principal amount of the Term Loan
outstanding after the Agreement Date (other than the increase
in the principal amount of the Term Loan pursuant to the
Supplemental Term Loan and the CCI Term Loan). Notwithstanding
the foregoing, no Advance shall be made under the Term Loan
Commitment which, if made, would cause the aggregate principal
amount outstanding under the Term Loan Commitment to exceed
$47,000,000 unless the proceeds of such Advance are disbursed
into a restricted account satisfactory to the Borrower
maintained with the Administrative Agent or Xxxxxx Trust
Company of New York and may not be withdrawn by the Borrower
(other than to transfer funds from a restricted account
maintained at the Administrative Agent to a restricted account
maintained at Xxxxxx Trust Company of New York or vice versa,
or to repay or prepay Loans outstanding hereunder) except upon
written confirmation by the Administrative Agent to (i) Xxxxxx
Trust Company of New York if it then holds such proceeds or
(ii) the Borrower if the Administrative Agent then holds such
proceeds, of the Administrative Agent's receipt of (1) a
certificate of an Authorized Signatory stating that either (A)
such proceeds shall be immediately applied to pay the cash
purchase price for the Borrower's (or one of its wholly-owned
Subsidiaries') acquisition of one (1) or more of the issued
and outstanding shares of capital stock of CCI (exclusive of
the shares of capital stock of CCI owned by the Borrower or
any of its wholly-owned Subsidiares immediately prior to such
acquisition) or (B) the Borrower or one of its wholly-owned
Subsidiaries has already acquired not less than a majority of
the shares of the issued and outstanding capital stock of CCI
and that such proceeds shall be used by the Borrower for
working capital purposes, which certificate shall be
substantially in the form of Exhibit A to the Fifth Amendment
to this Agreement, and (2), with respect to any purchase of
shares of the capital stock of CCI pursuant to the tender
offer for such shares by Xxxxxxx Acquisition Corp., a
certificate of Xxxxxx Trust
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Company of New York, in its capacity as the depositary for
Xxxxxxx Acquisition Corp. in such transaction, as to the
aggregate number of shares of the capital stock of CCI which
have been tendered for purchase by the Borrower or any such
Subsidiary by shareholders of CCI, which certificate shall be
substantially in the form of Exhibit B to the Fifth Amendment
to this Agreement."
(b) Section 2.1(b). Section 2.1(b) of the Credit
Agreement, Revolving Loan Facility, is hereby amended by
adding the following at the end of existing Section 2.1(b):
"Notwithstanding the foregoing, no Advance shall be made under
the Revolving Loan Commitment which, if made, would cause the
aggregate principal amount outstanding under the Revolving
Loan Commitment to exceed $53,000,000 unless the proceeds of
such Advance are disbursed into a restricted account
satisfactory to the Borrower maintained with the
Administrative Agent or Xxxxxx Trust Company of New York and
may not be withdrawn by the Borrower (other than to transfer
funds from a restricted account maintained at the
Administrative Agent to a restricted account maintained at
Xxxxxx Trust Company of New York or vice versa, or to repay or
prepay Loans outstanding hereunder) except upon written
confirmation by the Administrative Agent to (i) Xxxxxx Trust
Company of New York if it then holds such proceeds or (ii) the
Borrower if the Administrative Agent then holds such proceeds,
of the Administrative Agent's receipt of (1) a certificate of
an Authorized Signatory stating that either (A) such proceeds
shall be immediately applied to pay the cash purchase price
for the Borrower's (or one of its wholly-owned Subsidiaries')
acquisition of one (1) or more of the issued and outstanding
shares of capital stock of CCI (exclusive of the shares of
capital stock of CCI owned by the Borrower or any of its
wholly-owned Subsidiares immediately prior to such
acquisition) or (B) the Borrower or one of its wholly-owned
Subsidiaries has already acquired not less than a majority of
the shares of the issued and outstanding capital stock of CCI
and that such proceeds shall be used by the Borrower for
working capital purposes, which certificate shall be
substantially in the form of Exhibit A to the Fifth Amendment
to this Agreement, and (2), with respect to any purchase of
shares of the capital stock of CCI pursuant to the tender
offer for such shares by Xxxxxxx Acquisition Corp., a
certificate of Xxxxxx Trust Company of New York, in its
capacity as the depositary for Xxxxxxx Acquisition Corp. in
such transaction, as to the aggregate number of shares of
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the capital stock of CCI which have been tendered for purchase
by the Borrower or any such Subsidiary by shareholders of CCI,
which certificate shall be substantially in the form of
Exhibit B to the Fifth Amendment to this Agreement."
(c) Section 2.4. Section 2.4 of the Credit Agreement, Fees, is
hereby amended by adding a new subsection 2.4(d) thereto immediately
following subsection 2.4(c) thereof, as follows:
"(c) CCI Transaction Fees.
(i) In the event that the Borrower or one of
its wholly-owned Subsidiaries does not acquire a majority of
shares of the issued and outstanding capital stock of CCI and
the right to vote such shares under the North Carolina Control
Share Acquisition Act, as determined by the Borrower upon the
advice of its special North Carolina counsel, on or before the
60th day following the purchase by the Borrower or any of its
Subsidiaries of the first such additional share of the capital
stock of CCI following the date of the Fifth Amendment to this
Agreement, the Borrower agrees to pay to each Lender, in
accordance with its Commitment Ratio, a fee equal to
one-quarter of one percent (1/4%) of the sum of such Lender's
pro rata portion of the Revolving Loan Commitment, plus such
Lender's pro rata portion of the then unpaid principal amount
of the Term Loan. Such fee shall be due and payable on the
Business Day following such 60th day, fully earned when due
and non-refundable when paid.
(ii) In the event that the Borrower or one
of its wholly-owned Subsidiaries does not acquire a majority
of shares of the issued and outstanding capital stock of CCI
and the right to vote such shares under the North Carolina
Control Share Acquisition Act, as determined by the Borrower
upon the advice of its special North Carolina counsel, on or
before the 120th day following the purchase by the Borrower or
any of its Subsidiaries of the first such additional share of
the capital stock of CCI following the date of the Fifth
Amendment to this Agreement, the Borrower agrees to pay to
each Lender, in accordance with its Commitment Ratio, an
additional fee equal to one-quarter of one percent (1/4%) of
the sum of such Lender's pro rata portion of the Revolving
Loan Commitment, plus such Lender's pro rata portion of the
then unpaid principal amount of the Term Loan. Such fee shall
be due and payable on the Business Day
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following such 120th day, fully earned when due and
non-refundable when paid."
(d) Section 2.6(a). Section 2.6(a) of the Credit Agreement,
Mandatory Prepayments, is hereby amended by adding a new subsection
2.6(a)(viii) thereto immediately following subsection 2.6(a)(vii)
thereof, as follows:
"(viii) CCI Transaction. Unless the Borrower and each
of the Lenders shall otherwise agree in writing, in the event
that the Borrower or one of its wholly-owned Subsidiaries does
not acquire any additional shares of the issued and
outstanding capital stock of CCI and the right to vote such
shares under the North Carolina Control Share Acquisition Act,
as determined by the Borrower upon the advice of its special
North Carolina counsel, on or before April 15, 1996, (A) the
Borrower shall immediately prepay on April 16, 1996 the
outstanding principal amount of the CCI Term Loan and all
Advances made under the Revolving Loan Commitment which cause
the aggregate principal amount outstanding thereunder to
exceed $53,000,000, (B) the Revolving Loan Commitment shall
thereupon be automatically reduced as of such date to
$53,000,000, (C) any obligation or commitment of the Lenders
to make the CCI Term Loan shall thereupon automatically expire
and become null and void and of no further force or effect and
(D) Sections 1(a)(i), (ii), (iv), (v), and (viii), 1(b),
1(c)(iv) and (vi), 3 and 4 of the Fifth Amendment to this
Agreement shall become null and void and of no further force
or effect (whereupon the provisions of this Agreement
purported to be amended thereby shall be reinstated as in
effect immediately prior to giving effect to such Fifth
Amendment and this Agreement shall be deemed to be amended
accordingly). Notwithstanding anything contained herein which
may be construed to the contrary, in the event that the
Borrower or one of its wholly-owned Subsidiaries does not
acquire a majority of shares of the issued and outstanding
capital stock of CCI and the right to vote such shares under
the North Carolina Control Share Acquisition Act, as
determined by the Borrower upon the advice of its special
North Carolina counsel, on or before the 180th day following
the purchase by the Borrower or any of its Subsidiaries of the
first such additional share of the capital stock of CCI
following the date of the Fifth Amendment to this Agreement,
it shall constitute an Event of Default if the Borrower or any
of its Subsidiaries acquires any additional shares of the
capital stock of CCI unless the Borrower (or any such
Subsidiary) is able, in a single transaction, to
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purchase shares of such capital stock sufficient to cause the
Borrower or one of its wholly-owned Subsidiaries to own a
majority of shares of such capital stock and to have the right
to vote such shares under the North Carolina Control Share
Acquisition Act, as determined by the Borrower upon the advice
of its special North Carolina counsel. In the event that the
Borrower or one of its wholly-owned Subsidiaries does not
acquire a majority of shares of the issued and outstanding
capital stock of CCI and the right to vote such shares under
the North Carolina Control Share Acquisition Act, as
determined by the Borrower upon the advice of its special
North Carolina counsel, on or before the 240th day following
the purchase by the Borrower or any of its Subsidiaries of the
first such additional share of the capital stock of CCI
following the date of the Fifth Amendment to this Agreement,
(1) the Borrower shall immediately prepay on the Business Day
following such 240th day, the outstanding principal amount of
the CCI Term Loan and all Advances made under the Revolving
Loan Commitment which cause the aggregate principal amount
outstanding thereunder to exceed $53,000,000, (2) the
Revolving Loan Commitment shall thereupon be automatically
reduced as of such date to $53,000,000, (3) any obligation or
commitment of the Lenders to make the CCI Term Loan shall
thereupon automatically expire and become null and void and of
no further force or effect, and (4) Sections 1(a)(i), (ii),
(iv), (v) and (viii), 1(b), 1(c)(iv) and (vi), 3 and 4 of the
Fifth Amendment to this Agreement shall become null and void
and of no further force or effect (whereupon the provisions of
this Agreement purported to be amended thereby shall be
reinstated as in effect immediately prior to giving effect to
such Fifth Amendment and this Agreement shall be deemed to be
amended accordingly). Upon any prepayment of the CCI Term Loan
under this subsection 2.6(a)(viii), the amortization schedule
for the Term Loan set forth in Section 2.7(a) hereof as in
effect immediately prior to giving effect to the Fifth
Amendment to this Agreement shall be immediately reinstated
and this Agreement deemed to be amended accordingly."
(e) Section 2.7. Section 2.7 of the Credit Agreement,
Repayment, is hereby amended by deleting Section 2.7(a), Term Loan,
thereof in its entirety and by inserting the following in lieu thereof:
"(a) Term Loan. The principal balance of the Term
Loan shall be amortized in consecutive semi-annual
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installments in the amounts and on the dates set forth
below:
Dates Amount
June 30, 1996 $4,250,000
December 31, 1996 $6,250,000
June 30, 1997 $6,000,000
December 31, 1997 $6,000,000
June 30, 1998 $6,750,000
December 31, 1998 $6,750,000
June 30, 1999 $8,000,000
December 31, 1999 $5,000,000
A final payment of all principal amounts outstanding in
respect of the Term Loan shall be due and payable on the Term
Loan Maturity Date."
3. Amendment to Section 7.15. Section 7.15 of the Credit Agreement,
Fixed Charge Coverage Ratio, is hereby amended by deleting Section 7.15 in its
entirety and by inserting the following in lieu thereof:
"Section 7.15 Fixed Charge Coverage Ratio. The
Borrower shall not permit the ratio of (a) Cash Flow for the
four (4) most recently completed calendar quarters to (b)
Fixed Charges for such period, to be less than the following
as of the end of each calendar quarter during the periods set
forth below:
Minimum
Period Ratio
Quarters Ending
March 31, 1996,
June 30, 1996,
September 30, 1996
and December 31, 1996 1.10 to 1
Quarters Ending
March 31, 1997,
June 30, 1997,
September 30, 1997
and December 31, 1997 1.25 to 1
Quarters Ending
March 31, 1998,
June 30, 1998,
September 30, 1998
and December 31, 1998 1.40 to 1
At all times thereafter 1.50 to 1"
4. Amendment to Section 7.17. Section 7.17 of the Credit
Agreement, Indebtedness to Total Capital Ratio, is hereby amended
by deleting the table appearing therein in its entirety and by
inserting the following in lieu thereof:
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"Maximum
Period Ratio
From January 1, 1996 through December 31, 1996 63%
From January 1, 1997 through December 31, 1997 60%
From January 1, 1998 through December 31, 1998 55%
At all times thereafter 50%"
5. No Other Amendment or Waiver. Except for the amendments and waivers
set forth herein, the text of the Credit Agreement shall remain unchanged and in
full force and effect. The amendments and waivers agreed to herein shall not
constitute a modification of the Credit Agreement or a course of dealing with
the Administrative Agent, the Managing Agents and the Lenders, or any of them,
at variance with the Credit Agreement such as to require further notice by the
Administrative Agent, the Managing Agents, the Lenders, the Majority Lenders, or
any of them, to require strict compliance with the terms of the Credit
Agreement, as amended by this Amendment, in the future.
6. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Administrative Agent, the
Managing Agents and the Lenders as follows:
(a) Each representation and warranty set forth in Article 4 of the
Credit Agreement is hereby restated and affirmed as true and correct in all
material respects as of the date hereof, except to the extent the Borrower has
previously updated the Lenders with respect thereto;
(b) The Borrower has the corporate power and authority (i) to enter
into this Amendment and to execute and deliver the Amended and Restated
Revolving Loan Notes and Amended and Restated Term Loan Notes referred to herein
(collectively, the "New Notes"), and (ii) to do all acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
(c) This Amendment and the New Notes have been duly authorized, validly
executed and delivered by one or more Authorized Signatories of the Borrower,
and constitute the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with their respective terms; and
(d) The execution and delivery of this Amendment and the New Notes and
the performance by the Borrower under the Credit Agreement, as amended hereby,
do not and will not require the consent or approval of any regulatory authority
or governmental authority or agency having jurisdiction over the Borrower which
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has not already been obtained, nor be in contravention of or in conflict with
the Articles of Incorporation or By-Laws of the Borrower, or the provision of
any statute, judgment, order, indenture, instrument, agreement, or undertaking,
to which the Borrower is party or by which the Borrower's assets or properties
are or may become bound.
7. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to (i) the truth and accuracy of the
representations and warranties contained in Section 6 hereof; (ii) the execution
and delivery by the Borrower of Amended and Restated Revolving Loan Notes and
Amended and Restated Term Loan Notes, one such Amended and Restated Revolving
Loan Note and Amended and Restated Term Loan Note payable to each Lender; (iii)
the execution and delivery of a stock pledge agreement substantially in the form
of Exhibit C attached hereto and a loan certificate substantially in the form of
Exhibit L to the Credit Agreement by Xxxxxxx Acquisition Corp., and the delivery
to the Administrative Agent of all appropriate stock certificates and stock
powers relating to such stock pledge agreement; (iv) the execution and delivery
by the Borrower of a revised Schedule 1 to the Stock Pledge Agreement dated as
of December 15, 1993 between the Borrower and the Administrative Agent with
respect to the shares of capital stock of Xxxxxxx Acquisition Corp., and the
delivery to the Administrative Agent of all appropriate stock certificates and
stock powers relating thereto; (v) the execution and delivery by the Borrower of
appropriate Federal Reserve Form U-1s and G-3s; (vi) the execution and delivery
of an opinion of Xxxxxxx & Xxxxx, special Illinois counsel to the Borrower and
its Subsidiaries, in the form of Exhibit D attached hereto; (vii) receipt by the
Managing Agent's of evidence satisfactory to them that Xxxxxx Trust Company of
New York has agreed to the terms upon which funds may be disbursed from the
restricted account as set forth in Sections 2(a) and (b) hereto; and (viii)
receipt of any other documents that the Administrative Agent, the Managing
Agents, the Lenders, or any of them, may reasonably request, certified by an
officer of the Borrower if so requested.
8. Waivers. The Administrative Agent, the Managing Agents and the
Lenders hereby waive the requirements of Section 5.12 of the Credit Agreement
with respect to the acquisition of CCI and its Subsidiaries (other than as
expressly provided in Section 7 above) until the ninetieth (90th) day following
the disbursement of proceeds of the CCI Term Loan or any portion of the
Revolving Loan Commitment in excess of $53,000,000 to, or on behalf of, the
Borrower or any of its Subsidiaries for the purpose of acquiring shares of the
capital stock of CCI as provided in Section 2 above. The Administrative Agent,
the Managing Agents and the Lenders hereby further waive the requirements of
Section 7.2 and Section 7.8 of the Credit Agreement with respect to the
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acquisition and disposition of the shares of capital stock of CCI presently
owned by the Borrower or any of its Subsidiaries and as contemplated to be
acquired by the Borrower or any of its Subsidiaries herein. Finally,
notwithstanding any other provision of the Credit Agreement which may be
construed to the contrary, the Administrative Agent, the Managing Agents and the
Lenders hereby acknowledge and agree that the Borrower and its Subsidiaries may
purchase and hold shares of the capital stock of CCI as contemplated hereby.
9. Amendment Fees. Upon the effectiveness of Section 2 of this
Amendment, the Administrative Agent shall pay to each of the Lenders who have
increased their respective portions of the Revolving Loan Commitment and the
Term Loan Commitment pursuant to this Amendment, an amendment fee in an amount
equal to the product of (a) 0.00125, multiplied by (b) the aggregate amount by
which such Lender's Revolving Loan Commitment and Term Loan Commitment so
increased.
10. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an
original and all of which, taken together, shall constitute one
and the same agreement.
11. Law of Contract. This Amendment shall be deemed to be
made pursuant to the laws of the State of Georgia with respect to
agreements made and to be performed wholly in the State of
Georgia and shall be construed, interpreted, performed and
enforced in accordance therewith.
12. Loan Document. This Amendment shall constitute a Loan
Document.
13. Effective Date. Upon the execution and delivery of this Amendment
by each of the parties hereto, (a) Sections 1(a)(ii), (iii), (v), (vi), (vii),
(viii), and (ix), 1(c)(i), (ii), (iii) and (v), and 2 through 13 of this
Amendment shall be effective as of February 5, 1996, and (b) Sections 1(a)(i)
and (iv), 1(b), 1(c)(iv) and (vi) of this Amendment shall be effective only upon
CCI becoming a Subsidiary of the Borrower.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute, deliver and seal this
Amendment as of the day and year first above written, to be effective as set
forth in Section 13 hereof.
BORROWER: XXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx, Xx.
_________________________
Its: Chairman & CEO
______________
[CORPORATE SEAL] Attest: /s/ Xxxxxxx X. Xxxxxx
_____________________
Its: Secretary
_______________
ADMINISTRATIVE AGENT: NATIONSBANK, N.A. (SOUTH), formerly
known as NATIONSBANK OF GEORGIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
_______________________
Its: SVP
_____________
LENDERS: NATIONSBANK, N.A. (SOUTH), formerly
known as NATIONSBANK OF GEORGIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
_______________________
Its: SVP
_____________
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Xxxxxx Xxxxxxx
___________________
Its: VP
_________
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxx Xxxxx
__________________
Its: Director
________
NBD BANK
By: /s/ J. Xxxxxx Xxxxxx
_______________________________
Its: First Vice President
_____________________
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx X. XxXxxxxxx
________________________
Its: Vice President
______________
X. X. XXXXXX DELAWARE
By: Xxxxxxx X. Xxxxx
___________________
Its: Associate
_________
SUNTRUST BANK, SAVANNAH, N.A., formerly
known as TRUST COMPANY OF GEORGIA BANK
OF SAVANNAH, N.A.
By: Xxxxxxx Xxxxx
__________________________________
Its: Executive Vice President
________________________
EXHIBITS TO FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit A - Form of Certificate of Borrower
Exhibit B - Form of Certificate of Xxxxxx Trust and Savings
Bank
Exhibit C - Form of Pledge Agreement
Exhibit D - Form of Opinion of Xxxxxxx & Xxxxx
EXHIBIT A TO FIFTH AMENDMENT
FORM OF CERTIFICATE OF BORROWER
The undersigned, who is the ________________________________ of Xxxxxxx
Corporation, a Delaware corporation (the "Borrower"), does hereby certify on
behalf of the Borrower that he is the duly elected and qualified
______________________ of the Borrower and an Authorized Signatory of the
Borrower.
In connection with that certain Credit Agreement dated as of December
15, 1993 (as amended from time to time, the "Credit Agreement") among the
Borrower, NationsBank of Georgia, N.A. (now known as NationsBank, N.A. (South))
and The Chase Manhattan Bank, N.A., as managing agents (the "Managing Agents"),
NationsBank of Georgia, N.A. (now known as NationsBank, N.A. (South)), The Chase
Manhattan Bank, N.A., The First National Bank of Boston, NBD Bank, Xxxxxx Trust
and Savings Bank, X.X. Xxxxxx Delaware, and Trust Company of Georgia Bank of
Savannah, N.A. (now known as SunTrust Bank, Savannah, N.A.) (collectively the
"Lenders"), and NationsBank of Georgia, N.A. (now known as NationsBank, N.A.
(South)), as administrative agent (the "Administrative Agent"), the undersigned
hereby further certifies to the Lenders and the Administrative Agent on behalf
of the Borrower that:
1. The Borrower requests that proceeds of Advances of the CCI Term Loan
and/or under the Revolving Loan Commitment (which cause the aggregate principal
amount outstanding under the Revolving Loan Commitment to exceed $53,000,000) be
disbursed from the restricted account maintained at [CHOOSE ONE OF THE
FOLLOWING:] [the Administrative Agent/Xxxxxx Trust Company of New York] as set
forth in Sections 2.1(a) and 2.1(b) of the Credit Agreement.
2. [CHOOSE ONE OF THE FOLLOWING:]
[Such proceeds shall be immediately applied to pay the cash
purchase price for the Borrower's (or one of its wholly-owned Subsidiaries')
acquisition of one (1) or more of the issued and outstanding shares of the
capital stock of Communication Cable, Inc., a North Carolina corporation ("CCI")
(exclusive of the shares of capital stock of CCI owned by the Borrower or any of
its wholly-owned Subsidiaries immediately prior to the consummation of such
acquisition).]
OR
[The Borrower or one of its wholly-owned Subsidiaries has
already acquired not less than a majority of the issued and outstanding shares
of the capital stock of Communication Cable, Inc., a North Carolina corporation
and such proceeds shall be used by the Borrower for working capital purposes.]
Capitalized terms used in this Certificate and not otherwise defined
are used as defined in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower, acting through an Authorized
Signatory, has signed this Certificate and affixed hereto the seal of the
Borrower, as of the ____ day of __________, 1996.
XXXXXXX CORPORATION, a Delaware corporation
By: _________________________
Its: ________________
[CORPORATE SEAL]
Attest: _____________________
Its:_________________
EXHIBIT B TO FIFTH AMENDMENT
FORM OF CERTIFICATE OF XXXXXX TRUST COMPANY OF NEW YORK
VIA FACSIMILE, HAND DELIVERY OR OVERNIGHT COURIER
TO: NationsBank, N.A. (South), as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
In connection with that certain Credit Agreement dated as of December
15, 1993 (as amended from time to time, the "Credit Agreement") among Xxxxxxx
Corporation, a Delaware corporation (the "Borrower"), NationsBank of Georgia,
N.A. (now known as NationsBank, N.A. (South)) and The Chase Manhattan Bank,
N.A., as managing agents (the "Managing Agents"), NationsBank of Georgia, N.A.
(now known as NationsBank, N.A. (South)), The Chase Manhattan Bank, N.A., The
First National Bank of Boston, NBD Bank, Xxxxxx Trust and Savings Bank, X.X.
Xxxxxx Delaware, and Trust Company of Georgia Bank of Savannah, N.A. (now known
as SunTrust Bank, Savannah, N.A.) (collectively with any assignees thereof, the
"Lenders"), and NationsBank of Georgia, N.A. (now known as NationsBank, N.A.
(South)), as administrative agent (the "Administrative Agent"), Xxxxxx Trust
Company of New York, in its capacity as depositary for Xxxxxxx Acquistion Corp.,
a North Carolina corporation ("KAC"), a wholly-owned subsidiary of the Borrower,
in connection with KAC's tender offer for certain shares of Communication Cable,
Inc., a North Carolina corporation ("CCI"), does hereby certify to the Lenders
and the Administrative Agent that the aggregate number of shares of the capital
stock of CCI which have been tendered for purchase by KAC by shareholders of CCI
is _______________ as of the date hereof.
IN WITNESS WHEREOF, Xxxxxx Trust Company of New York, acting through an
authorized signatory, has signed this Certificate, as of the ____ day of
__________, 1996.
XXXXXX TRUST COMPANY OF NEW YORK
By: _______________________
Its: ______________
EXHIBIT C
FORM OF STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT dated as of February 5, 1996 between
XXXXXXX ACQUISITION CORP., a North Carolina corporation (the "Pledgor"), and
NATIONSBANK, N.A. (SOUTH) (formerly known as NationsBank of Georgia, N.A.), as
administrative agent (the "Administrative Agent") for NationsBank, N.A. (South)
(formerly known as NationsBank of Georgia, N.A.) and The Chase Manhattan Bank,
N.A., as managing agents (the "Managing Agents"), and NationsBank, N.A. (South)
(formerly known as NationsBank of Georgia, N.A.), The Chase Manhattan Bank,
N.A., The First National Bank of Boston, NBD Bank, Xxxxxx Trust and Savings
Bank, X. X. Xxxxxx Delaware, and SunTrust Bank, Savannah, N.A. (formerly known
as Trust Company of Georgia Bank of Savannah, N.A.) (collectively with any other
financial institutions which hereafter become Lenders under the Credit Agreement
defined herein, the "Lenders") under the Credit Agreement of dated as of
December 15, 1993, as amended from time to time (as so amended, the "Credit
Agreement"), among Xxxxxxx Corporation, a Delaware corporation (the "Borrower"),
the Lenders, the Managing Agents and the Administrative Agent;
WHEREAS, the obligations of the Administrative Agent and the Lenders
under the Credit Agreement are conditioned upon, among other things, the
execution and delivery by the Pledgor of a Stock Pledge Agreement in the form
hereof to secure (a) the obligations of the Borrower under the Credit Agreement
with respect to the due and punctual payment of the principal amount of the CCI
Secured Loans, when due, whether at maturity, by acceleration or otherwise (the
foregoing obligations being collectively called the "Obligations");
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the Pledgor and the Administrative Agent for itself and on behalf
of the Lenders hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in, or by
reference in, the Credit Agreement. As used herein, the term "Event of Default"
shall mean (a) the occurrence of any Event of Default, as such term is defined
in the Credit Agreement, other than an Event of Default under Section 8.1(b) of
the Credit Agreement, which Event of Default is not cured to the Majority
Lenders' satisfaction within a period of ten (10) days from the occurrence
thereof, or (b) the occurrence of an Event of Default under Section 8.1(b) of
the Credit Agreement.
SECTION 2. Pledge. As security for the payment and performance in full
of any and all Obligations at any time outstanding, the Pledgor hereby
transfers, assigns, grants, sells, conveys, hypothecates, pledges, sets over and
delivers
unto the Administrative Agent, and grants to the Administrative Agent, for the
benefit of the Lenders, a continuing first priority security interest in all its
right, title and interest in, to and under the following, whether now owned or
hereafter acquired:
(i) all of the shares of capital stock listed on Schedule 1
(as amended pursuant hereto) and any additional shares of capital stock
of any of the corporations (or successors thereto) listed on Schedule 1
obtained in the future by the Pledgor and all certificates representing
such shares (the "Pledged Stock");
(ii) all other property which may be delivered to and held by
the Administrative Agent or required to be so delivered or held
pursuant to the terms hereof of any character whatsoever into which any
of the foregoing may be converted or which may be substituted for any
of the foregoing; and
(iii) subject to the provisions of Section 5, all Proceeds of
the Pledged Stock and of such other property of any character
whatsoever into which any of the foregoing may be converted or which
may be substituted for any of the foregoing, including all cash,
securities or other property at any time and from time to time
receivable or otherwise distributed in respect of or in exchange for
any or all of such stock or other property (the items referred to in
clauses (i) through (iii) being collectively called the "Collateral"),
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Administrative Agent, its successors and assigns, forever; subject,
however, to the terms, covenants and conditions hereinafter set forth.
SECTION 3. Delivery of Collateral. The Pledgor agrees promptly to
deliver or cause to be delivered to the Administrative Agent to be held and
possessed on behalf of the Lenders (a) any and all securities now or hereafter
included in the Collateral (the "Pledged Securities"), along with undated stock
powers duly executed in blank or other instruments of transfer satisfactory to
the Administrative Agent and endorsed in blank and such other instruments and
documents as the Administrative Agent may request to effect the purposes
contemplated hereunder, and the Administrative Agent hereby acknowledges and
agrees that one or more certificates representing 100 shares of the capital
stock of Communication Cable, Inc., a North Carolina corporation ("CCI") which
were not purchased from Xxxxx X. Xxxx but which are owned by the Pledgor
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as of the date hereof will be delivered to the Administrative Agent only upon
the Pledgor's receipt of same following the issuance of such certificate(s) in
the name of the Pledgor (which the Pledgor agrees to cause to happen as soon as
is reasonably practicable), (b) any and all certificates or other instruments or
documents representing any of the Collateral and (c) all other property
comprising part of the Collateral with proper instruments of assignment duly
executed and such other instruments or documents as the Administrative Agent may
request to effect the purposes contemplated hereunder. Upon each delivery of
Pledged Securities, the Pledgor shall deliver to the Administrative Agent a
schedule showing a description of the securities theretofore and then being
pledged hereunder, which schedule shall be attached hereto as Schedule 1 and
made a part hereof. Each schedule so delivered shall supersede any prior
schedules so delivered.
SECTION 4. Registration in Nominee Name; Denominations. Upon the
occurrence and during the continuance of an Event of Default, the Administrative
Agent shall have the right (in its sole and absolute discretion and without
notice to the Pledgor) to transfer the Pledged Securities to or to register them
in its own name or the name of its nominee. In addition, the Administrative
Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purpose consistent with this Agreement.
SECTION 5. Voting Rights, etc. (a) Unless and until an
Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all
voting and/or consensual rights and powers accruing to an owner of
Pledged Securities or any part thereof for any purpose consistent with
the terms of this Agreement and the Credit Agreement; provided that
such action would not materially impair the security for the
Obligations or adversely affect the position of the Administrative
Agent or the Lenders under this Agreement or the Loan Documents.
(ii) The Administrative Agent shall execute and deliver to the
Pledgor, or cause to be executed and delivered to the Pledgor, all such
proxies, powers of attorney, and other instruments as the Pledgor may
reasonably request for the purpose of enabling the Pledgor to exercise
the voting and/or consensual rights and powers which it is entitled to
exercise pursuant to subparagraph (i) above.
(iii) The Pledgor shall be entitled to receive and retain any
and all cash dividends paid on the Pledged Securities to the extent and
only to the extent that such
-3-
cash dividends are permitted by, and otherwise paid in accordance with,
the terms and conditions of the Credit Agreement. All noncash
dividends, stock or dividends paid or payable in cash or otherwise in
connection with a partial or total liquidation or dissolution,
instruments, securities, other distributions in property, return of
capital, capital surplus or paid-in surplus or other distributions
(except for cash dividends permitted by the first sentence of this
subparagraph (iii) made on or in respect of Pledged Securities, whether
paid or payable in cash or otherwise, whether resulting from a
subdivision, combination or reclassification of the outstanding capital
stock of the issuer of any Pledged Securities or from any bankruptcy or
reorganization of the Pledgor or received in exchange for Pledged
Securities or any part thereof, or in redemption thereof, as a result
of any merger, consolidation, acquisition or other exchange of assets
to which such issuer may be a party or otherwise, shall be and become
part of the Collateral, and, if received by the Pledgor, shall not be
commingled by the Pledgor with any of its other funds or property but
shall be held separate and apart therefrom, shall be held in trust for
the benefit of the Administrative Agent and shall be forthwith
delivered to the Administrative Agent in the same form as so received
(with any necessary endorsements).
(b) Upon the occurrence and during the continuance of an Event
of Default, all rights of the Pledgor to receive and retain any dividends which
the Pledgor is authorized to receive and retain pursuant to subparagraph (iii)
of paragraph (a) of this Section 5 shall cease, and all such rights shall
thereupon become vested in the Administrative Agent, which shall have the sole
and exclusive right and authority to receive and retain such dividends. All
dividends which are received by the Pledgor contrary to the provisions of this
paragraph (b) shall be received in trust for the benefit of the Administrative
Agent, shall be segregated from other property or funds of the Pledgor and shall
be forthwith delivered to the Administrative Agent as Collateral in the same
form as so received (with any necessary endorsements). Any and all money and
other property paid over to or received by the Administrative Agent pursuant to
the provisions of this Section 5 shall be retained by the Administrative Agent
in an account to be established by the Administrative Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 10 hereof.
(c) Upon the occurrence and during the continuance of an Event
of Default, all rights of the Pledgor to exercise the voting and consensual
rights and powers which the Pledgor is entitled to exercise pursuant to Section
5(a)(i) shall cease, and
-4-
all such rights shall thereupon become vested in the Administrative Agent, which
shall have the sole and exclusive right and authority to exercise such voting
and consensual rights and powers, and the Pledgor shall execute and deliver to
the Administrative Agent all such documents and instruments (including proxies)
as the Administrative Agent shall request in order to effect the purposes of
this paragraph (c).
SECTION 6. Representations, Warranties and Covenants. The Pledgor
hereby represents, warrants and covenants to and with the Administrative Agent
(on behalf of the Lenders) that:
(a) Except for the security interests granted to the
Administrative Agent and as otherwise provided in the Credit Agreement,
the Pledgor (i) is and will at all times continue to be the direct
owner, beneficially and of record, of the Pledged Stock (ii) owns the
Collateral free and clear of all liens, charges, encumbrances and
security interests of every kind and nature (other than liens expressly
permitted in writing by the Lenders), (iii) will make no assignment,
pledge, hypothecation or transfer of, or create or suffer to exist any
lien, charge or encumbrance on, or security interest in, the Collateral
(other than pledges expressly permitted in writing by the Lenders), and
(iv) subject to Section 5, will cause any and all Collateral, whether
for value paid by the Pledgor or otherwise, to be forthwith deposited
with the Administrative Agent and pledged or assigned hereunder.
(b) It (i) has, and at all times will have, good right and all
requisite power and legal authority to pledge the Collateral in the
manner hereby done or contemplated and (ii) will defend its and the
Administrative Agent's respective title and interest thereto or therein
against any and all attachments, liens, claims, encumbrances, security
interests or other impediments of any nature, however, arising, of all
persons whomsoever.
(c) No authorization, consent or approval, or other action by,
and no notice to or filing with, any Governmental Authority (including
any securities exchange) not previously obtained is required (i) for
the pledge by the Pledgor of the Collateral pursuant to this Agreement
or the perfection therein of the Administrative Agent's security
interest created hereby, (ii) for the execution, delivery or
performance of this Agreement by the Pledgor or (iii) for the exercise
by the Administrative Agent of the rights provided for in this
Agreement or the remedies in respect of the Collateral pursuant to this
Agreement, other than compliance with applicable Federal and state
securities laws in connection with the acquisition and sale or other
-5-
disposition of Collateral in accordance with the terms of this
Agreement.
(d) By virtue of the execution and delivery by the Pledgor of
this Agreement, when the certificates representing the Pledged Stock
owned by the Pledgor are delivered to the Administrative Agent in
accordance with this Agreement, the Administrative Agent will obtain
and, so long as the Administrative Agent maintains possession of the
certificates representing the Pledged Stock, will have a valid and
perfected first lien upon and security interest in such Pledged Stock
as security for the repayment of the Obligations, prior to all other
liens and encumbrances thereon and security interests therein.
(e) All its representations and warranties contained in this
Agreement shall survive the execution, delivery and performance of this
Agreement, and shall be and remain true and accurate as of each day
from the date hereof, until the termination of this Agreement pursuant
to Section 17, with the same effect as though made on and as of each
such day.
(f) This Agreement constitutes the legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and similar laws affecting
creditors' rights generally and to general principles of equity).
(g) The Pledged Stock has been duly authorized and validly
issued, is fully paid and non-assessable and has been duly and validly
pledged hereunder in accordance with applicable law.
SECTION 7. Issuance of Additional Stock. Except as permitted under the
Credit Agreement, and, in the case of CCI only, so long as (i) the Pledgor owns
a majority of the shares of the issued and outstanding capital stock of CCI and
the right to vote such shares under the North Carolina Control Share Acquisition
Act, as determined by the Borrower upon the advice of its special North Carolina
counsel, and (ii) the Pledgor has had a reasonable amount of time to hold a
special or regular meeting of the shareholders of CCI in accordance with
Applicable Law and a reasonable opportunity to vote its shares at such meeting,
the Pledgor agrees that it will not (a) permit any Subsidiary whose stock is
pledged pursuant to this Agreement to issue any stock or other securities
(including warrants, options and other similar agreements), whether in addition
to, by stock dividend or other distribution upon, or in substitution for, the
Pledged Securities or otherwise or (b) sell, assign, transfer, exchange or
otherwise dispose of, or grant any option with respect to, the Collateral,
-6-
or create, incur or permit to exist any Lien or option in favor of, or any claim
of any Person with respect to, any of the Collateral, or any interest therein,
except for the Lien provided for by this Agreement.
SECTION 8. Additional Subsidiaries. In the event that pursuant to the
Credit Agreement the stock of a Subsidiary of the Pledgor is required to be
pledged hereunder, the Pledgor shall pledge, assign, transfer, sell, convey,
hypothecate, set over and deliver to the Administrative Agent, and grant to the
Administrative Agent for the benefit of the Lenders, a continuing first priority
security interest in all its right, title and interest in and to the securities
of such Subsidiary required by the Credit Agreement to be pledged to the
Lenders. Concurrently with the delivery of such additional Pledged Stock, the
Pledgor shall deliver to the Administrative Agent (i) a new Schedule 1
reflecting such additional Pledged Stock and (ii) an Officer's Certificate of
the Pledgor affirming as of the date of delivery the representations, warranties
and covenants set forth in Section 6 hereof with respect to such additional
Pledged Stock.
SECTION 9. Remedies Upon Default. If an Event of Default shall have
occurred and be continuing, the Administrative Agent may (without any obligation
to seek performance of any guarantee or to resort to any other security, right
or remedy granted to it under any other instrument or agreement including the
Credit Agreement) sell the Collateral, or any part thereof, at public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery as the Administrative Agent shall deem
appropriate. The Administrative Agent shall be authorized at any such sale (if
it deems it advisable to do so) to restrict the prospective bidders or
purchasers to persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the
Administrative Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the property sold absolutely, free from any claim or
right on the part of the Pledgor, and the Pledgor hereby waives (to the extent
permitted by law) all rights of redemption, stay and appraisal which the Pledgor
may now have or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted.
The Administrative Agent shall give the Pledgor at least 10 days'
written notice (which the Pledgor agrees is reasonable notice within the meaning
of Section 9-504(3)of the Uniform Commercial Code as in effect in Georgia) of
the Administrative Agent's intention to make any sale of Collateral. Such
notice, in the case of a public sale, shall state the time of and place
-7-
where such sale is to be made and, in the case of a sale at a broker's board or
a securities exchange, shall state the board or exchange at which such sale is
to be made and the day on which the Collateral, or portion thereof, will first
be offered for sale at such board or exchange. Any such public sale shall be
held at such time or times within ordinary business hours and at such place or
places as the Administrative Agent may fix and state in the notice of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as the Administrative Agent may
(in its sole and absolute discretion) determine. The Administrative Agent shall
not be obligated to make any sale of any Collateral if it shall determine not to
do so, regardless of the fact that notice of sale of such Collateral shall have
been given. The Administrative Agent may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Administrative Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Administrative Agent shall not incur any liability in case any
such purchaser or purchasers shall fail to take up and pay for the Collateral so
sold and, in case of any such failure, such Collateral may be sold again upon
like notice, and in no event shall any portion of the proceeds of any such sale
be credited against payment of the costs, expenses and obligations set forth in
Section 10 hereof until cash payment for the Collateral so sold has been
received by the Administrative Agent. At any private sale of Collateral of a
type customarily sold in a recognized market, and at any public sale made
pursuant to this Section 9, any Lender may bid for or purchase, free (to the
extent permitted by law) from any equity or right of redemption, stay or
appraisal on the part of the Pledgor (all said rights being also hereby waived
and released to the extent permitted by law), the Collateral or any part thereof
offered for sale and may make payment on account thereof by using any claim then
due and payable to such Lender from the Pledgor as a credit, up to an amount
equal to the amount such Lender would otherwise be entitled to receive pursuant
to Section 10 in connection with such sale, against the purchase price, and such
Lender may, upon compliance with the terms of sale, hold, retain and dispose of
such property without further accountability to the Pledgor therefor. For
purposes hereof, a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof; the Administrative Agent shall be
free to carry out such sale pursuant to such agreement, and the Pledgor shall
not be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Administrative Agent
-8-
shall have entered into such an agreement all Events of Default shall have been
remedied and the Obligations paid in full. As an alternative to exercising the
power of sale herein conferred upon it, the Administrative Agent may proceed by
a suit or suits at law or in equity to foreclose upon the Collateral pursuant to
this Agreement and to sell the Collateral, or any portion thereof, pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver.
SECTION 10. Application of Proceeds of Sale. The proceeds of any sale
of, or other realization upon, all or any part of the Collateral pursuant to
Section 9, as well as any Collateral consisting of cash, shall be applied by the
Administrative Agent as provided in the Credit Agreement.
SECTION 11. Administrative Agent Appointed Attorney-in-Fact. The
Pledgor hereby appoints the Administrative Agent as its attorney-in-fact for the
purpose of carrying out the provisions of this Agreement and taking any action
and executing any instrument which the Administrative Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest and any proxy or proxies heretofore given by the
Pledgor to any other person are hereby revoked. Without limiting the generality
of the foregoing, the Administrative Agent shall have the right, upon the
occurrence and during the continuance of an Event of Default, with full power of
substitution either in the Administrative Agent's name or in the name of any
Pledgor, to ask for, demand, xxx for, collect, receive, receipt and give
acquittance for any and all moneys due or to become due under and by virtue of
any Collateral, to endorse checks, drafts, orders and other instruments for the
payment of money payable to the Pledgor representing any interest, dividend or
other distribution payable in respect of the Collateral or any part thereof or
on account thereof and to give full discharge for the same, to settle,
compromise, prosecute or defend any action, claim or proceeding with respect
thereto, and to sell, assign, endorse, pledge, transfer and make any agreement
respecting, or otherwise deal with, the same; provided, however, that nothing
herein contained shall be construed as requiring or obligating the
Administrative Agent or any Lender to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Administrative
Agent or any Lender or to present or file any claim or notice, or to take any
action with respect to the Collateral or any part thereof or the moneys due or
to become due in respect thereof or any property covered thereby, and no action
taken by the Administrative Agent or any Lender or omitted to be taken by any of
them with respect to the Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of the Pledgor or to any claim or
action against the
-9-
Administrative Agent or any Lender in the absence of the gross negligence or
wilful misconduct of the Administrative Agent or any Lender, as the case may be,
as shall have been proven in a final, non appealable judgment of a court of
competent jurisdiction. The Pledgor hereby ratifies all that said attorney shall
lawfully do or cause to be done by virtue hereof, in the absence of the gross
negligence or wilful misconduct of said attorney, as shall have been proven in a
final nonappealable judgment of a court of competent jurisdiction.
SECTION 12. No Waiver. No failure on the part of the Administrative
Agent or any Lender to exercise, and no delay 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 by the Administrative Agent
or any Lender preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law or otherwise. The
Administrative Agent and the Lenders shall not be deemed to have waived any
rights hereunder or under any other agreement or instrument unless such waiver
shall be in writing and signed by such parties.
SECTION 13. Securities Act, etc. In view of the position of the Pledgor
in relation to the Pledged Securities, or because of other present or future
circumstances, a question may arise under the Securities Act of 1933, as amended
(the "Securities Act"), or any similar or successor Federal securities law
(together with the Securities Act, the "Federal Securities Laws") with respect
to any disposition of the Pledged Securities permitted hereunder. The Pledgor
understands that compliance with the Federal Securities Laws might strictly
limit the course of conduct of the Administrative Agent if the Administrative
Agent were to attempt to dispose of all or any part of the Pledged Securities,
and might also limit the extent to which or the manner in which any subsequent
transferee of any Pledged Securities could dispose of the same. Similarly, there
may be other legal restrictions or limitations affecting the Administrative
Agent in any attempt to dispose of all or part of the Pledged Securities under
applicable Blue Sky or other state securities laws or similar laws analogous in
purpose or effect. The Pledgor further understands that under applicable law, in
the absence of an agreement to the contrary, the Administrative Agent might be
held to have certain general duties and obligations to the Pledgor, as pledgor,
to make some effort toward obtaining a fair price even though the obligations of
the Pledgor may be discharged or reduced by the proceeds of a sale at a lesser
price. The Pledgor confirms that the Administrative Agent shall have sole and
absolute discretion in determining the type and conduct of all public and
private sales of Collateral, in any manner and under any circumstances the
Administrative Agent may
-10-
choose; and the Pledgor clearly understands that neither the Administrative
Agent nor any Lender is to have any such general duty or obligation to the
Pledgor, and the Pledgor will not attempt to hold the Administrative Agent or
any Lender responsible for the sale of all or any part of the Pledged Securities
at an inadequate price even if the Administrative Agent shall accept the first
offer received or does not approach more than one possible purchaser. Without
limiting the generality of the foregoing, the provisions of this Section 13
would apply if, for example, the Administrative Agent were to place all or part
of the Pledged Securities for private placement by an investment banking firm,
or if such investment banking firm purchased all or any part of the Pledged
Securities for its own account, or if the Administrative Agent placed all or any
part of the Pledged Securities privately with a purchaser or purchasers. The
provisions of this Section 13 will apply notwithstanding the existence of a
public or private market upon which the quotations or sales prices may exceed
substantially the price at which the Administrative Agent sells.
SECTION 14. Registration Rights. The Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if for
any reason the Administrative Agent desires to sell any of the Pledged
Securities at a public or private sale and in connection with such sale, in the
reasonable opinion of the Administrative Agent, no exemption from the
registration requirements of the Securities Act or any other Federal Securities
Law is available, it will, at any time and from time to time, upon the written
request of the Administrative Agent, use its best efforts to take or to cause
the issuer of such Pledged Securities to take such action and prepare,
distribute and/or file such documents, as are required or advisable in the
opinion of counsel for the Administrative Agent to permit the public or private
sale of such Pledged Securities. The Pledgor further agrees to indemnify, defend
and hold harmless the Administrative Agent, the Lenders, and any underwriter
from and against all loss, liability, expenses, costs, fees and disbursements of
counsel (including the reasonable cost to the Administrative Agent of legal
counsel), and claims (including the costs of investigation) which they may incur
insofar as such loss, liability, expense or claim arises out of or in based upon
any alleged untrue statement of a material fact contained in any prospectus (or
any amendment or supplement thereto) or in any notification or offering
circular, or arises out of or is based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to the Pledgor or the issuer of such Pledged Securities by the Administrative
Agent, any Lender or the underwriter expressly for use therein. The Pledgor
further
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agrees (i) to use its best efforts to qualify, file or register, or cause the
issuer of any Pledged Securities to qualify, file or register, any of such
Pledged Securities under the Blue Sky or other securities laws of such states as
may be reasonably requested by the Administrative Agent and keep effective, or
cause to be kept effective, all such qualifications, filings or registrations,
(ii) to cause each such issuer of such Pledged Securities to make available to
its security holders, as soon as practicable, an earnings statement which will
satisfy the provisions of Section 11(a) of the Securities Act and the Rules and
Regulations promulgated thereunder and (iii) to do or cause to be done all such
other acts and things as may be necessary to make such sale of Pledged
Securities or any part thereof valid and binding and in compliance with all
applicable law. The Pledgor will bear all costs and expenses of carrying out its
obligations under this Section 14. The Pledgor acknowledges that there is no
adequate remedy at law for failure by it to comply with the provisions of this
Section 14 and that such failure would not be adequately compensable in damages,
and therefore agrees that its agreements contained in this Section 14 may be
specifically enforced.
SECTION 15. Security Interest Absolute. All rights of the
Administrative Agent hereunder, the grant of a security interest in the and all
obligations of the Pledgor hereunder shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of the Credit
Agreement, any agreement with respect to any of the Obligations or any other
agreement or instrument relating to any of the foregoing, (ii) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from the Credit Agreement or any other agreement or instrument, (iii) any
exchange, release or non-perfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guarantee, for all or
any of the Obligations or (iv) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Pledgor or any other
person in respect of the Obligations or in respect of this Agreement.
SECTION 16. Payment of Costs and Expenses, etc.
(a) The Pledgor hereby agrees that upon demand it shall pay to the
Administrative Agent the amount of any and all reasonable expenses, including
attorneys' fees and expenses and other fees and expenses the Administrative
Agent may incur in connection with (i) the administration of this Agreement,
(ii) the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Administrative Agent hereunder or (iv) the failure by
the Pledgor to perform or
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observe any of the provisions hereof. Any such amounts payable as provided
hereunder or thereunder shall be additional Obligations secured hereby. The
Pledgor hereby agrees to indemnify and hold harmless the Administrative Agent
(and each of its directors, officers, agents and employees), to the fullest
extent permitted by law, from and against any and all claims, losses,
liabilities (including liabilities for penalties), actions, suits, judgments,
demands, costs and expenses) of whatever nature incurred by the Administrative
Agent hereunder or in connection herewith, unless such loss, liability, cost or
expense shall be due to wilful misconduct or gross negligence on the part of the
Administrative Agent or its directors, officers, agents or employees as shall
have been proven in a final, nonappealable judgment of a court of competent
jurisdiction.
(b) The Pledgor hereby agrees to pay to the Administrative Agent, upon
demand, the amount of any taxes which the Administrative Agent may have been
required to pay by reason of the security interests established pursuant to this
Agreement (including any applicable transfer taxes).
(c) All obligations of the Pledgor under this Section 16 shall bear
interest following demand at the Default Rate and shall be additional
Obligations secured hereby.
SECTION 17. Termination. This Agreement, and the assignments, pledges
and security interests created or granted hereby, shall terminate only when (a)
all the Obligations shall have been indefeasibly paid in full and satisfied and
(b) the commitments and obligations of the Lenders under the Credit Agreement
have terminated, at which time the Administrative Agent shall reassign and
deliver to the Pledgor, or to such person or persons as the Pledgor shall
designate, against receipt, such of the Collateral (if any) as shall not have
been sold or otherwise applied by the Administrative Agent pursuant to the terms
hereof and shall still be held by it hereunder, together with appropriate
instruments of reassignment and release, all without any recourse to, or
warranty whatsoever by, the Administrative Agent or the Lenders, and at the sole
cost and expense of the Pledgor; provided, however, that all indemnities of the
Pledgor contained in this Agreement shall survive, and remain operative and in
full force and effect regardless of, the termination of this Agreement. Upon any
such termination of the security interests or release of Collateral, the
Administrative Agent will, at the Pledgor's expense, execute and deliver to the
Pledgor such documents as the Pledgor shall reasonably request to evidence the
termination of the security interests in the Collateral of the Pledgor or the
release of the Collateral of the Pledgor, as the case may be.
SECTION 18. The Administrative Agent.
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(a) The Administrative Agent shall have and may exercise such powers
under this Agreement as are specifically delegated to the Administrative Agent
by the terms hereof and the Credit Agreement, together with such powers as are
reasonably incidental thereto. The Administrative Agent shall not have any
implied duties or any obligations to take any action under this Agreement except
any action specifically provided by this Agreement to be taken by the
Administrative Agent.
(b) The Administrative Agent may execute any of its duties under this
Agreement by or through its agents, officers or employees. Neither the
Administrative Agent nor any of its agents, officers or employees shall be (i)
liable for any action taken or omitted to be taken by it or them in good faith
(ii) responsible for the consequence of any oversight or error of judgment or
(iii) answerable for any loss unless any of the foregoing shall happen through
its or their gross negligence or wilful misconduct as shall have been determined
in a final, non appealable judgment of a court of competent jurisdiction.
(c) Whenever the Administrative Agent shall deem it necessary or
prudent in order either to conform to any law of any jurisdiction in which all
or any part of the Collateral shall be situated or to make any claim or bring
any suit with respect to the Collateral or this Agreement or the Loan Documents,
the Administrative Agent and, to the extent necessary, the Pledgor, shall
execute and deliver a supplemental agreement and all other instruments and
agreements necessary or proper to constitute another bank or trust company, or
one or more persons approved by the Administrative Agent, either to act as
co-agent or co-agents or Administrative Agent or Administrative Agents of all or
any part of the Collateral, jointly with the Administrative Agent or any
successor or successors or to act as separate agent or agents of any such
property, in any such case with such powers as may be provided in such
supplemental agreement, and to vest in such bank, trust company or persons as
such co-agent or separate agent, as the case may be, any property, title, right
or power of the Administrative Agent deemed necessary or advisable by the
Administrative Agent.
(d) The Administrative Agent shall be entitled to rely on any
communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and with
respect to all legal matters shall be entitled to rely on the advice of legal
advisors selected by it concerning all matters relating to this Agreement or the
Security Documents and its duties thereunder, and shall not be liable to any
Lender or the Pledgor or any other person for the consequence of such reliance.
(e) The Administrative Agent shall not be responsible for
any recitals, statements, representations or warranties herein or
for the execution, effectiveness, genuineness, validity or
-14-
enforceability of any Loan Document, or be liable for failing to make any
inquiry concerning the performance or observance of any of the terms, provisions
or conditions thereof. The Administrative Agent shall be neither responsible nor
liable for any shortage, discrepancy, damage, loss or destruction of any part of
the Collateral wherever the same may be located regardless of the cause thereof
unless the same shall happen solely through gross negligence or wilful
misconduct of the Administrative Agent as shall have been determined in a final,
nonappealable judgment of a court of competent jurisdiction. The Administrative
Agent shall not, under any circumstances or any event whatsoever, have any
liability for any error or omission or delivery of any kind made in the
settlement, collection or payment of any of the Collateral or of any instrument
received in payment therefor or for any damage resulting therefrom other than as
a sole result of its own gross negligence or wilful misconduct as shall have
been determined in a final, nonappealable judgment of a court of competent
jurisdiction.
(f) Upon the removal or resignation of the Administrative Agent acting
hereunder and upon delivery to such successor Administrative Agent of the
Collateral then held by the retiring Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties hereby conferred upon the Administrative
Agent named herein, and one or more such appointments and designations shall not
exhaust the right to appoint and designate further successor Administrative
Agents hereunder. The retiring Administrative Agent shall not be discharged from
its duties and obligations hereunder until, and the retiring Administrative
Agent shall be so discharged when, all the Collateral held by the retiring
Administrative Agent has been delivered to the successor Administrative Agent,
and the retiring Administrative Agent shall have executed and delivered to the
successor Administrative Agent appropriate instruments substituting such
successor Administrative Agent as attorney-in-fact of the Pledgor for purposes
of this Agreement.
SECTION 19. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered or
mailed (or delivered by facsimile equipment, the receipt of which
is promptly confirmed by telephone) addressed,
(a) if to the Pledgor, to it at 0 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx 00000; and
(b) if to the Administrative Agent, to it at
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx, Xxxxxxx,
Xxxxxxx 00000-0000, Attn: Xxxxxxx Xxxxxxxx
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt, in each case addressed
-15-
to such party as provided in this Section or in accordance with the latest
unrevoked direction from such party.
SECTION 20. Further Assurances. The Pledgor agrees, at its own cost and
expense, to do such further acts and things, and promptly to execute and deliver
such additional conveyances, assignments, agreements and instruments, as the
Administrative Agent may at any time request in connection with the
administration and enforcement of this Agreement or with respect to the
protection and perfection of the Collateral or any part thereof or in order
better to assure and confer unto the Administrative Agent its rights and
remedies hereunder.
SECTION 21. Successors and Assigns. The obligations created by this
Agreement are for the sole benefit of the Administrative Agent and the Lenders
and their respective successors and assigns, and in the event of an assignment
of all or a portion of any of the indebtedness under any of the Credit Agreement
by a Lender, the rights hereunder, to the extent applicable to the indebtedness
so assigned, may be transferred with such indebtedness. This Agreement is
binding on the Pledgor and its successors but none of them shall be permitted to
assign this Agreement, any of its obligations hereunder or any interest herein
or in the Collateral, or any part thereof, or otherwise pledge, encumber or
grant any option with respect to the Collateral, or any part thereof, or any
cash or property held by the Administrative Agent as Collateral under this
Agreement except as expressly permitted by this Agreement or the Credit
Agreement.
SECTION 22. Changes in Writing. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only by a statement or instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. Any
waiver shall be effective only in the specific instance and for the specific
purpose for which made or given.
SECTION 23. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA, WITHOUT GIVING
EFFECT TO ITS CHOICE OF LAW DOCTRINE.
SECTION 24. Jurisdiction. The parties hereby acknowledge and agree that
(a) this Agreement and the other Loan Documents have, in part, been negotiated
in, executed and delivered in, and will partially be performed in, the State of
Georgia, and (b) all Advances and issuances of Letters of Credit under the
Commitments will be made in Georgia, and (c) this Agreement and the other Loan
Documents shall be construed in accordance with and governed by the laws of the
State of Georgia. In consideration of the
-16-
agreement of the Lenders to make the Loans and to undertake the Commitments, the
Pledgor agrees, for itself and on behalf of its Subsidiaries, that any suit,
action or proceeding with respect to this Agreement or any other Loan Document
or the transactions contemplated hereby and thereby may be brought in the
Superior Court for Xxxxxx County, Georgia or in the United States District Court
for the Northern District of Georgia, Atlanta Division, and by execution and
delivery of this Agreement the Pledgor, for itself and on behalf of its
Subsidiaries, irrevocably submits to the non-exclusive jurisdiction of such
courts for that purpose. The Pledgor, for itself and on behalf of its
Subsidiaries, irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in such court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. The Pledgor, for itself and on behalf of its Subsidiaries,
agrees that a final judgment in any such suit, action or proceeding brought in
such a court, after all appropriate appeals, shall be conclusive and binding
upon such Persons.
SECTION 25. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 26. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument. This Agreement shall be
effective when counterparts bearing the signature of the Pledgor shall have been
delivered to the Administrative Agent.
SECTION 27. Headings. Section headings used herein are for
convenience only and are not to affect the construction of, or be
taken into consideration in interpreting, this Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXXX ACQUISITION CORP.,
a North Carolina corporation
By: _______________________
Name: _______________________
Title: _______________________
NATIONSBANK, N.A. (SOUTH), formerly
known as NATIONSBANK OF GEORGIA,
N.A., as Administrative Agent
By: ______________________
Name: ______________________
Title: ______________________
SCHEDULE 1
Number of Certificate
Issuer Shares Number
Communication Cable, Inc. 315,603 CCI 0967
Communication Cable, Inc. 100 ________
(Xxxxxxx & Xxxxx Letterhead appears here)
February 5, 1996
To the Persons on the Attached Distribution List
Re: Credit Agreement dated as of December 15, 1993, as amended by
that certain First Amendment to Credit Agreement dated as of
March 29, 1994, that certain Second Amendment to Credit Agreement
dated as of March 30, 1994, that certain Third Amendment to
Credit Agreement dated as of December 31, 1994, and that certain
Fourth Amendment to Credit Agreement dated as of June 29, 1995
(as so amended, the "Credit Agreement") among Xxxxxxx
Corporation, a Delaware corporation (the "Borrower"),
NationsBank, N.A. (South) (formerly known as NationsBank of
Georgia, N.A.) and The Chase Manhattan Bank, N.A. as managing
agents (the "Managing Agents"), and NationsBank, N.A. (South)
(formerly known as NationsBank of Georgia, N.A.), The Chase
Manhattan Bank, N.A., The First National Bank of Boston, NBD
Bank, Xxxxxx Trust and Savings Bank, X.X. Xxxxxx Delaware, and
SunTrust Bank, Savannah, N.A. (formerly known as Trust Company of
Georgia Bank of Savannah, N.A.) (collectively the "Lenders"), and
NationsBank, N.A. (South) (formerly known as NationsBank of
Georgia, N.A.), as administrative agent for the Lenders (the
"Administrative Agent")
Ladies and Gentlemen:
We have acted as Illinois counsel to the Borrower and its domestic
Subsidiaries (other than Inactive Subsidiaries) in connection with the
Fifth Amendment to Credit Agreement dated as of February 5, 1996 (the
"Amendment") among the Borrower, the Administrative Agent, the Managing
Agents and the Lenders, pursuant to which and subject to the terms and
conditions whereof the Borrower, the Administrative Agent, the Managing
Agents and the Lenders have agreed to amend the Credit Agreement.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Credit Agreement (as
amended by the Amendment).
We have examined and relied and base our opinion solely on
originals or copies, certified or otherwise identified to our
satisfaction, of the following documents and records and upon such
matters of law as we have deemed necessary for the purposes of this
opinion:
a. The Amendment;
b. The Credit Agreement;
c. The Second Amended and Restated Revolving Loan Notes;
d. The Second Amended and Restated Term Loan Notes; and
e. The Articles of Incorporation, By-laws, Good Standing
Certificates, and resolutions of the Board of Directors of Borrower.
The documents listed at c. and d. above are hereinafter collectively
referred to as the "New Notes", and the documents listed at a. through
and including d. above, are hereinafter collectively referred to as the
"Loan Documents".
The opinions set forth herein are qualified as stated therein and are
qualified further by the following:
a. This opinion is based upon existing laws, ordinances and
regulations in effect as of the date hereof and as they presently apply.
b. We express no opinion as to the effect of the laws of any state
or jurisdiction other than the State of Illinois and the laws of the
United States of America upon the transactions described herein. To the
extent that any of the Loan Documents are governed by the laws of the
State of Georgia, we have assumed, with your permission, that, despite
the choice of Georgia law as the governing law in any such Loan
Documents, Illinois law would be applied.
c. In rendering the opinions set forth below, we have relied, to
the extent we believe appropriate, as to matters of fact, (i) upon
certificates or statements of public officials and of the officers of
Borrower and (ii) upon representations and warranties of Borrower
contained in the Loan Documents and we have made no independent
investigation or verification of said facts. No opinion is being
expressed as to the effect of any event, fact or circumstance of which
we have no actual knowledge.
d. We have assumed the competency of the signatories to the Loan
Documents, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the accuracy and completeness of all records made available
to us.
e. We have assumed that (i) with respect to all parties other than
our client, the Loan Documents have been duly authorized, executed and
delivered by the parties thereto, are within their corporate powers, and
are their legal, valid and binding obligation(s) and that such other
parties are in compliance with all applicable laws, rules and
regulations governing the conduct of their respective businesses and
this transaction, (ii) the Loan Documents will be enforced in
circumstances and in a manner which are commercially reasonable, (iii)
the parties to the Loan Documents (other than our client), are not
subject to any statute, rule or regulation or any impediment that
requires them or our client to obtain the consent, or to make any
declaration or filing with any governmental authority in connection with
the transactions contemplated by the Loan Documents, and (iv) all terms,
provisions and conditions relating to the transaction referred to in
this opinion letter are correctly and completely reflected in the Loan
Documents.
f. The opinions hereafter expressed are qualified to the extent
that: (i) the characterization of, and the enforceability of any rights
or remedies in, any agreement or instrument may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer, equitable subordination, or similar laws and
doctrines affecting the rights of creditors generally and general
equitable principles; (ii) the availability of specific performance,
injunctive relief or any other equitable remedy is subject to the
discretion of a court of competent jurisdiction; (iii) the provisions of
any document, agreement or instrument that (a) may require
indemnification or contribution for liabilities under the provisions of
any Federal or state securities laws or in respect to the neglect or
wrongful conduct of the indemnified party or its representatives or
agents, (b) purport to confer, waive or consent to the jurisdiction of
any court, or (c) waive any right granted by common or statutory law,
may be unenforceable as against public policy; and (iv) any provisions
of the Loan Documents granting so-called "self-help" or extrajudicial
remedies may not be enforceable.
g. Requirements in the Loan Documents specifying that provisions
thereof may only be waived in writing may not be valid, binding or
enforceable to the extent that an oral agreement or an implied agreement
by trade practice or course of conduct has been created modifying any
provision of such documents.
h. To the extent we have assumed the applicability of Illinois law
to the Loan Documents for purpose of opinion paragraph 4, we render no
opinion with respect to the enforceability under Illinois law of any
provision of the Loan Documents which provides for the compounding of
interest or the payment or accrual of interest on interest. Please note
that the Illinois Supreme Court has held in Xxxxxx x. Xxxxx, 151 I11. 37
(1894) and 137 Ill. 443 (1891) and its progeny that compounding of
interest and charging interest on interest is contrary to the public
policy of the State of Illinois. However, although there is no case law
or statutory authority contrary to the principles set forth in Xxxxxx
and its progeny, we are of the opinion that if the issue of whether the
compounding of interest payable on a business loan is presently against
the public policy of the State of Illinois were to be presented in an
appropriate case, absent facts which might require particular scrutiny
by a court of equity, the Illinois Supreme
Court would, more likely than not, conclude that the compounding of
interest payable on business loans is not generally against the public
policy of the State of Illinois.
i. We express no opinion on provisions in any of the Loan Documents
which waive the statute of limitations, objection to jurisdiction or the
manner or service of process, impose indemnity liability on others for
acts or omissions of the Administrative Agent or the Lenders, appoint
the Administrative Agent or the Lenders as attorney-in-fact, waive the
right to assert lack of consideration, or waive the requirements of good
faith, notice and commercial reasonableness under the Uniform Commercial
Code as enacted in any state, which requirements cannot be waived by
consent. We further advise that the award and the amount of attorney's
fees are subject to the discretion of the court before which any
proceeding involving the Loan Documents may be brought.
j. We have not undertaken any independent review of (i) the status
of zoning of any real property, (ii) compliance of any property with
applicable health, safety, zoning, building, environmental, pollution or
other law or regulation, (iii) title or ownership of any real or
personal property, or (iv) the priority of liens under the Loan
Documents, and we render no opinion with respect to any of the
foregoing.
k. Notwithstanding provisions of the Mortgage made by Cable Systems
in favor of the Administrative Agent with respect to certain real
property located in Waukegan, Illinois (the "Illinois Mortgage") to the
contrary, Chapter 110, Section 15-1602 of the Illinois Revised Statutes
grants a mortgagor the right, which is exercisable once every five
years, to cure the default of a loan secured by real estate by payment
of delinquent payments and costs within certain time periods specified
in the statute.
l. In rendering our opinion in paragraph 1 below regarding the good
standing of Borrower, we have relied upon a certificate of good standing
dated February 1, 1996, issued by the Secretary of State of the State of
Delaware, which we have assumed to be accurate as of the date hereof. In
rendering our opinion in paragraph 1 below regarding the qualification
of Borrower as a foreign corporation in the State of Georgia, we have
relied upon a certificate of existence dated February 2, 1996, issued by
the Secretary of State of the State of Georgia, which we have assumed to
be accurate as of the date hereof.
m. Whenever our opinion, with respect to the existence or absence
of facts, is qualified by the phrase "to our knowledge" or a phrase of
similar import, it indicates that during the course of our
representation of our clients in connection with the subject transaction
no information has come to the attention of our attorneys who have
worked on the subject transaction which would give us current actual
knowledge of the existence or absence of such facts. However, except to
the extent expressly set forth herein or in any other opinion issued
by us to third parties on which we have expressly agreed you may rely,
we have not undertaken any independent investigation to determine the
existence or absence of such facts, and no inference as to our knowledge
of the existence or absence of such facts should be drawn from the fact
of our representation of our clients in any other matter.
Based on the foregoing, and in reliance thereon, but subject to the
assumptions, limitations and qualifications expressed herein, we are of
the opinion that:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the state of its incorporation.
The Borrower is authorized to do business as a foreign corporation in
the State of Georgia.
2. The Borrower has all requisite corporate power and authority to
own its properties and to carry on its business as now being and
hereafter proposed to be conducted. The Borrower has all corporate power
and authority to execute, deliver and perform all of its obligations
under the Amendment and the New Notes and to undertake the transactions
contemplated thereby.
3. The execution, delivery and performance of the Amendment and the
New Notes by the Borrower, and the consummation of the transactions
contemplated thereby, are duly authorized by all necessary corporate
action and do not and will not (a) violate any provisions of (i) the
certificate of incorporation or by-laws of the Borrower, (ii) any law,
rule, or regulation, or (iii) to our knowledge, any order, writ,
judgment, injunction, decree, determination or award of any court,
arbitrator or government, commission, board, bureau, agency or other
instrumentality applicable to or binding upon the Borrower, (b) result
in a breach of or constitute a default under any indenture, mortgage,
deed of trust, agreement or other instrument to which the Borrower is a
party or by which it or its properties may be bound or affected in any
respect, or (c) result in or require the creation or imposition of any
lien or other encumbrance of any nature upon or with respect to any of
the properties or assets of the Borrower, except as provided in the Loan
Documents, as amended.
4. The Amendment and the New Notes have been duly authorized,
executed and delivered and constitute the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
5. After giving effect to the Amendment, the increase in the
Commitments effected thereby and the issuance of the New Notes by the
Borrower, the Borrower's Pledge Agreement continues to constitute the
valid and legally binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms, and creates a valid
first in priority security interest in the shares of capital stock
pledged thereunder under the Uniform Commercial Code
of the State of Georgia, as in effect on the date hereof (the "UCC") and
upon possession and continued possession by the Administrative Agent of
the certificates of stock representing such shares, together with duly
executed stock powers relating thereto, the security interest created
therein will be and remain perfected under the UCC. Such security
interest secures, among other things, the Obligations, including,
without limitation, Obligations arising by virtue of Advances made by
the Lenders under the increased Commitments and Obligations arising by
virtue of the CCI Term Loan.
6. After giving effect to the Amendment, the increase in the
Commitments effected thereby and the issuance of the New Notes by the
Borrower, each Pledge Agreement continues to constitute the valid and
legally binding obligation of the Subsidiary which is the pledgor
thereunder, enforceable against such Subsidiary in accordance with its
terms, and creates a valid first in priority security interest in the
shares of capital stock pledged thereunder under the UCC and upon
possession and continued possession by the Administrative Agent of the
certificates of stock representing such shares, together with duly
executed stock powers relating thereto, the security interest created
therein will be and remain perfected under the UCC. Such security
interest secures, among other things, the Obligations, including,
without limitation, Obligations arising by virtue of Advances made by
the Lenders under the increased Commitments and Obligations arising by
virtue of the CCI Term Loan.
7. After giving effect to the Amendment, the increase in the
Commitments effected thereby and the issuance of the New Notes by the
Borrower, each Subsidiary Guaranty continues to constitute a guaranty of
the Obligations by the Subsidiaries of the Borrower party thereto,
including, without limitation, Obligations arising by virtue of Advances
made by the Lenders under the increased Commitments and Obligations
arising by virtue of the CCI Term Loan.
8. After giving effect to the Amendment, the increase in the
Commitments effected thereby and the issuance of the New Notes by the
Borrower, the Security Agreements continue to create a valid and, to the
extent previously perfected by the filing of financing statements in
applicable jurisdictions in conjunction with the original closing of the
Credit Agreement, perfected security interest in the collateral pledged
thereunder, to the extent such security interest may be perfected by the
filing of financing statements, which security interest secures the
Obligations, including, without limitation, Obligations arising by
virtue of Advances made by the Lenders under the increased Commitments
and Obligations arising by virtue of the CCI Term Loan.
9. After giving effect to the Amendment, the increase in the
Commitments effected thereby and the issuance of the New Notes by the
Borrower, the Collateral Assignments of Patents and Trademarks continue
to create a valid and, to the extent previously perfected by the filing
of evidence of such assignments with the U.S. Patent and Trademark
Office and the
payment of all required filing fees in conjunction with the original
closing of the Credit Agreement, perfected security interest in the
collateral pledged thereunder which security interest secures the
Obligations, including, without limitation, Obligations arising by
virtue of Advances made by the Lenders under the increased Commitments
and Obligations arising by virtue of the CCI Term Loan.
10. After giving effect to the Amendment, the increase in the
Commitments effected thereby and the issuance of the New Notes by the
Borrower, the Credit Agreement, the Notes and the other Loan Documents
to which the Borrower is party continue to constitute the legal, valid
and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms.
11 . After giving effect to the Amendment, the increase in the
Commitments effected thereby and the issuance of the New Notes by the
Borrower, the Loan Documents to which any Subsidiary of the Borrower is
party continue to constitute the legal, valid and binding obligations of
such Subsidiary, enforceable against such Subsidiary in accordance with
their respective terms.
12. The execution and delivery of the Amendment and the issuance of
the New Notes do not effect a novation and do not adversely affect the
priority or perfection of the encumbrances and security interests
granted to the Administrative Agent under the Loan Documents.
13. The Amendment and each of the New Notes provides that it shall
be construed and enforced in accordance with the substantive laws of the
State of Georgia. We believe that under applicable Illinois law an
Illinois court or a federal court sitting in Illinois as the forum state
and applying Illinois conflict of law rules should give effect to the
designation by the parties of Georgia law as the governing law with
respect to the Amendment and each of the New Notes.
14. No approval, consent, order or authorization of any court or
governmental or public agency or authority of the United States, or any
state or political subdivision thereof not already obtained, is required
to be obtained by the Borrower in connection with the execution,
delivery and performance of the Amendment and the New Notes, except for
approvals and consents previously obtained.
15. Neither the Borrower nor any of its Subsidiaries is required to
register under the provisions of the Investment Company Act of 1940, as
amended, and neither the entering into or performance by the Borrower of
the Amendment nor the issuance of the New Notes violates any of the
provisions of such Act or requires any consent, approval or
authorization of, or
registration with, any governmental or public body or authority pursuant
to the provisions of such Act. Neither the Borrower nor any of its
Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935.
We call your attention to the fact that, although we represent our
client in connection with the subject transaction, our engagement has
been limited to specific matters as to which we have been consulted.
This opinion is limited to the matters stated herein. We disavow
any obligation to update this opinion or advise you of any changes in
our opinion in the event of changes in applicable laws or facts or if
additional or newly discovered information is brought to our attention.
This opinion is provided to you as a legal opinion only and not as a
guaranty or warranty of the matters discussed herein or in the documents
referred to herein. No opinion may be inferred or implied beyond the
matters expressly stated herein and no portion of this opinion may be
quoted or in any other way published without the prior written consent
of the undersigned. Further, this opinion may be relied upon only by the
addressees hereof and their assignees as provided in the Credit
Agreement, and not by any other party.
Very truly yours,
XXXXXXX & XXXXX
By:
Xxxxxx X. Xxxxx, a Partner
GTP/xxx
