EXECUTION COUNTERPART
CREDIT AGREEMENT
Dated as of March 31, 1998
By and Among
THE XXXXX GROUP, INC.
and
SUNTRUST BANK, ATLANTA
as Administrative Agent
and
NATIONSBANK, N.A.,
as Documentation Agent
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS
Section 1.01 Definitions
Section 1.02 Accounting Terms
Section 1.03 Other Definitional Terms
Section 1.04 Exhibits and Schedules
ARTICLE II - AMOUNT AND TERMS OF REVOLVING LOAN COMMITMENTS
Section 2.01 Description of Revolving Credit Facilities
Section 2.02 Revolving Loans
Section 2.03 Swing Line Loans
Section 2.04 Letter of Credit Subcommitment
Section 2.05 Notice of Issuance of Letter of Credit;
Agreement to Issue
Section 2.06 Payment of Amounts drawn under Letter of Credit
Section 2.07 Payment by Lenders
Section 2.08 Obligations Absolute
Section 2.09 Indemnification; Nature of Administrative
Agent's Duties
Section 2.10 Reductions of Revolving Loan Commitments
Section 2.11 Mandatory Prepayments of Revolving Loans
Section 2.12 Use of Proceeds
Section 2.13 Masland Bonds
ARTICLE III - AMOUNT AND TERMS OF TERM LOANS
Section 3.01 Term Loans
Section 3.02 Notes; Repayment of Principal
Section 3.03 Mandatory Prepayments
Section 3.04 Use of Proceeds
ARTICLE IV - GENERAL PAYMENT PROVISIONS
Section 4.01 Funding Notices
Section 4.02 Disbursement of Funds
Section 4.03 Interest
Section 4.04 Interest Periods
Section 4.05 Fees
Section 4.06 Voluntary Prepayments of Borrowings
Section 4.07 Payments, Etc.
Section 4.08 Interest Rate Note Ascertainable, Etc.
Section 4.09 Illegality
Section 4.10 Increased Costs
Section 4.11 Capital Adequacy
Section 4.12 Funding Losses
Section 4.13 Lending Offices
Section 4.14 Assumptions Concerning Funding of Eurodollar
Advances
Section 4.15 Apportionment of Payments
Section 4.16 Sharing of Payments, Etc.
Section 4.17 Interest Rate Arrangements
ARTICLE V - CONDITIONS TO BORROWINGS
Section 5.01 Conditions Precedent to Initial Advances and
Letters of Credit
Section 5.02 Conditions Precedent to Each Advance and
Letter of Credit
ARTICLE VI - REPRESENTATIONS AND WARRANTIES
Section 6.01 Organizational Existence; Compliance with Law
Section 6.02 Organizational Power; Authorization
Section 6.03 Enforceable obligations
Section 6.04 No Legal Bar
Section 6.05 No Material Litigation
Section 6.06 Investment Company Act, Etc.
Section 6.07 Margin Regulations
Section 6.08 Compliance With Environmental Laws
Section 6.09 Insurance
Section 6.10 No Default
Section 6.11 No Burdensome Restrictions
Section 6.12 Taxes
Section 6.13 Subsidiaries
Section 6.14 Financial Statements
Section 6.15 ERISA
Section 6.16 Patents, Trademarks, Licenses, Etc.
Section 6.17 Ownership of Property
Section 6.18 Debt
Section 6.19 Financial Condition
Section 6.20 Intercompany Advances
Section 6.21 Labor Matters
Section 6.22 Payment or Dividend Restrictions
Section 6.23 Obligations Constitute Senior Debt
Section 6.24 Disclosure
ARTICLE VII - AFFIRMATIVE COVENANTS
Section 7.01 Organizational Existence, Etc.
Section 7.02 Compliance with Laws, Etc.
Section 7.03 Payment of Taxes and Claims, Etc.
Section 7.04 Keeping of Books
Section 7.05 Visitation, Inspection, Etc.
Section 7.06 Insurance; Maintenance of Properties
Section 7.07 Reporting Covenants
Section 7.08 Compliance with Contractual Obligations
Section 7.09 Additional Credit Parties
ARTICLE VIII - NEGATIVE COVENANTS
Section 8.01 Liens, Etc.
Section 8.02 Debt
Section 8.03 Restrictions on Loans, Advances, Acquisitions,
Investments and Contingent Liabilities
Section 8.04 Merger and Asset Dispositions
Section 8.05 Issuance of Stock by Subsidiaries
Section 8.06 Lease Obligations
Section 8.07 Sale and LeaseBack
Section 8.08 Sale or Discount of Receivables
Section 8.09 Compliance with ERISA
Section 8.10 Compliance with Affiliates, Directors, or
Controlling Shareholders
Section 8.11 Financial Covenants
Section 8.12 Dividends, Etc.
Section 8.13 Actions Under Certain Documents
Section 8.14 Limitation on Payment Restrictions Affecting
Consolidated Companies
Section 8.15 Change in Fiscal Year
ARTICLE IX - EVENTS OF DEFAULT AND REMEDIES
Section 9.01 Payments
Section 9.02 Covenants Without Notice
Section 9.03 Other Covenants
Section 9.04 Representations
Section 9.05 NonPayments of Other Debt
Section 9.06 Defaults Under Other Agreements
Section 9.07 Bankruptcy
Section 9.08 ERISA
Section 9.09 Judgment
Section 9.10 Ownership of Credit Parties
Section 9.11 Change in Control of Borrower
Section 9.12 Default Under Other Credit Documents
Section 9.13 Default Under Interest Rate Contract or
Currency Contract
Section 9.14 Attachments
ARTICLE X - THE AGENTS
Section 10.01 Appointment and Authorization
Section 10.02 Nature of Duties of the Administrative Agent
Section 10.03 Lack of Reliance on the Agents
Section 10.04 Certain Rights of the Administrative Agent
Section 10.05 Liability of the Agents
Section 10.06 Indemnification
Section 10.07 Agents and Affiliates
Section 10.08 Successor Administrative Agent
ARTICLE XI - MISCELLANEOUS
Section 11.01 No Waiver
Section 11.02 Notices
Section 11.03 Descriptive Headings
Section 11.04 Time is of the Essence
Section 11.05 Payment of Expenses, Etc.
Section 11.06 Benefit of Agreement; Assignments and
Participations
Section 11.07 Governing Law; Submission to Jurisdiction
Section 11.08 Confidentiality
Section 11.09 Independent Nature of Lenders' Rights
Section 11.10 Intent Not To Violate Usury Laws
Section 11.11 Counterparts
Section 11.12 Survival
Section 11.13 Severability
Section 11.14 Independence of Covenants
Section 11.15 Change in Accounting Principles, Fiscal
Year or Tax Laws
Section 11.16 Cumulative Remedies; No Waiver
Section 11.17 Amendments; Consents
Section 11.18 Waiver of Jury Trial
Section 11.19 Entire Agreement
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 31, 1998 (the "Agreement"),
by and among THE XXXXX GROUP, INC., a corporation organized and existing
under the laws of the State of Tennessee (the "Borrower"), SUNTRUST BANK,
ATLANTA, a Georgia banking corporation organized under the laws of the
State of Georgia ("SunTrust"), the other banks and lending institutions
listed on the signature pages hereof, and any assignees of SunTrust or such
other banks and lending institutions which become "Lenders" as provided
herein (SunTrust, and such other banks, lending institutions, and assignees
referred to collectively as "Lenders"), SUNTRUST BANK, ATLANTA, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent") and NATIONSBANK, N.A., as documentation agent for the Lenders (in
such capacity, the "Documentation Agent").
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders provide certain
commitments to Borrower to extend credit facilities to Borrower in the
maximum aggregate principal amount of $160,000,000;
WHEREAS, the Lenders, the Administrative Agent and the Documentation
Agent have agreed to provide such facilities, subject to the terms,
conditions and requirements set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Borrower, the Lenders, the Administrative Agent
and the Documentation Agent intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
"ACQUISITION" shall mean any transaction, or any series of related
transactions, by which Borrower and/or any of its Subsidiaries directly or
indirectly (a) acquires any ongoing business or all or substantially all of
the assets of any Person or division thereof, whether through purchase of
assets, merger or otherwise, (b) acquires (in one transaction or as the
most recent transaction in a series of transactions) control of at least a
majority in ordinary voting power of the securities of a Person which have
ordinary voting power for the election of directors or (c) otherwise
acquires control of a 50% or more ownership interest in any such Person.
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period
for a Eurodollar Advance, the rate obtained by dividing (A) LIBOR for such
Interest Period by (B) a percentage equal to 1 MINUS the then stated
maximum rate (stated as a decimal) of all reserves requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency liabilities as defined in Regulation D (or against
any successor category of liabilities as defined in Regulation D).
"ADMINISTRATIVE AGENT" shall mean SunTrust Bank, Atlanta, as
administrative Agent for the Lenders hereunder and under the other Credit
Documents, and each successor administrative agent appointed pursuant to
ARTICLE X hereof.
"ADVANCE" shall mean (i) any advance by a Lender under the Revolving
Loan Commitments or the Term Loans, which may be either a Base Rate
Advance, a Secondary C/D Rate Advance, or a Eurodollar Advance or (ii) any
advance by the Swing Line Lender under the Swing Line Subcommitment, which
may be either a Base Rate Advance or a Cost of Funds Rate Advance.
"AFFILIATE" shall mean, with respect to any Person, a Person directly
or indirectly controlling or controlled by, or under direct or indirect
common control with, such Person, other than a Subsidiary of such Person.
A Person shall be deemed to control a corporation if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such corporation, whether through the ownership
of voting securities, by contract or otherwise.
"AGENTS" shall mean collectively, the Administrative Agent and the
Documentation Agent.
"AGREEMENT" shall mean this Credit Agreement, either as originally
executed or as it may be from time to time supplemented, amended, renewed
or extended.
"APPLICABLE COMMITMENT FEE PERCENTAGE" shall mean, with respect to any
calculation of the Revolving Loan Commitment Fee hereunder, (i) from the
Closing Date through June 30, 1998, one quarter of one percent (0.25%) per
annum, and (ii) thereafter, the percentage per annum determined by
reference to the following chart set forth below based on the Borrower's
ratio of Senior Funded Debt to EBITDA calculated as of the relevant
determination date:
Senior Funded Debt Applicable Commitment
to EBITDA Fee Percentage
less than 0.75 .20%
greater than or equal to 0.75 .20%
and less than 1.25
greater than or equal to 1.25 .25%
and less than 1.75
greater than or equal to 1.75 .375%
and less than 2.50
greater than or equal to 2.50 .375%
Each change in the Applicable Commitment Fee Percentage shall be effective
from and after the date that any change in the Applicable Margin is
effective.
"APPLICABLE MARGIN" shall mean, (a) with respect to all Revolving
Loans which are Eurodollar Borrowings or Secondary C/D Rate Borrowings, (i)
from the Closing Date through June 30, 1998, three quarters of one percent
per annum (0.75%) and (ii) thereafter, the applicable percentage determined
from the chart set forth below based on Borrower's ratio of Senior Funded
Debt to EBITDA, as determined quarterly based upon the financial statements
delivered by Borrower pursuant to this Agreement, with such Applicable
Margin to be effective, with respect to calculations based upon the
quarterly unaudited financial statements delivered pursuant to SECTION
7.07(b) of this Agreement, as of the first day of the second calendar
quarter immediately following the fiscal quarter for which such financial
statements are delivered and with such Applicable Margin to be effective
with respect to calculations based upon the annual audited financial
statements of the Borrower delivered pursuant to SECTION 7.07(a) of this
Agreement, on the earlier of (y) delivery of such financial statements (but
in no event earlier than 90 days after the end of any fiscal year), and (z)
the date which is 95 days after the end of each fiscal year of the
Borrower:
Senior Funded Debt
to EBITDA Applicable Margin
less than 0.75 .50%
greater than or equal to 0.75 .625%
and less than 1.25
greater than or equal to 1.25 .75%
and less than 1.75
greater than or equal to 1.75 1.00%
and less than 2.50
greater than or equal to 2.50 1.25%
and (b) with respect to the Term Loans, for all outstanding Eurodollar
Borrowings and Secondary C/D Rate Borrowings, (i) from the Closing Date
through June 30, 1998, 0.875% per annum and (ii) thereafter, the applicable
percentage determined from the chart set forth below based on Borrower's
ratio of Senior Funded Debt to EBITDA, as determined quarterly based upon
the financial statements delivered by Borrower pursuant to this Agreement,
with such Applicable Margin to be effective, with respect to calculations
based upon the quarterly unaudited financial statements delivered pursuant
to SECTION 7.07(b) of this Agreement, as of the first day of the second
calendar quarter immediately following the fiscal quarter for which such
financial statements are delivered and with such Applicable Margin to be
effective with respect to calculations based upon the annual audited
financial statements of the Borrower delivered pursuant to SECTION 7.07(a)
of this Agreement, on the earlier of (y) delivery of such financial
statements (but in no event earlier than 90 days after the end of any
fiscal year), and (z) the date which is 95 days after the end of each
fiscal year of the Borrower:
Senior Funded Debt
to EBITDA Applicable Margin
less than 0.75 .625%
greater than or equal to 0.75 .75%
and less than 1.25
greater than or equal to 1.25 .875%
and less than 1.75
greater than or equal to 1.75 1.125%
and less than 2.50
greater than or equal to 2.50 1.375%
"ASSESSMENT RATE" shall mean, for any Interest Period for any
Secondary C/D Rate Borrowing, the net annual assessment rate (rounded
upward, if necessary, to the nearest whole multiple of 1/100 of 1%)
estimated by the Administrative Agent as of the first day of such Interest
Period to be the then current annual assessment payable by Administrative
Agent to the Federal Deposit Insurance Corporation or any successor (the
"FDIC") for insuring time deposits made in Dollars at offices of the
Administrative Agent in the United States.
"ASSET BOOK VALUE" shall mean, with respect to any property or asset
of any Consolidated Company, an amount equal to the book value of such
property or asset as established in accordance with GAAP.
"ASSET DISPOSITION" shall mean the disposition whether by sale,
transfer, damage, destruction or condemnation or other disposition of any
or all of the assets of any Consolidated Company (including the stock of
Subsidiaries and sales of accounts receivable) other than sales of
inventory in the ordinary course of business.
"ASSET FAIR MARKET VALUE" shall mean, with respect to any property or
asset of any Consolidated Company, an amount equal to the fair market value
of such property or asset as determined in good faith by the board of
directors or other governing body or Financial Officer of such Consolidated
Company.
"ASSET VALUE" shall mean, with respect to any property or asset of any
Consolidated Company, an amount equal to the greater of (i) the Asset Book
Value, and (ii) the Asset Fair Market Value.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and another financial institution in accordance
with the terms of this Agreement and substantially in the form of
EXHIBIT A.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code of 1978, as amended
and in effect from time to time (11 U.S.C. SECTION 101 ET SEQ.).
"BASE RATE" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates) the
higher of (i) the Federal Funds Rate, as in effect from time to time, PLUS
one-half of one percent (0.50%) per annum, and (ii) the rate which the
Administrative Agent publicly announces from time to time as its prime
lending rate, as in effect from time to time. The Administrative Agent's
prime lending rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to customers; the Administrative
Agent may make commercial loans or other loans at rates of interest at,
above or below the Administrative Agent's prime lending rate.
"BASE RATE ADVANCE" shall mean any Advance hereunder that bears
interest based on the Base Rate.
"BASE RATE BORROWING" shall mean any Borrowing hereunder that bears
interest based on the Base Rate.
"BOND LETTER OF CREDIT FEE" shall have the meaning as set forth in
SECTION 4.05(c).
"BOND PURCHASE AGREEMENT" shall mean that certain Bond Purchase
Agreement, dated as of February 1, 1995 among State Industrial Development
Authority, Masland, SunTrust as Purchaser and SunTrust as Trustee, as
hereafter amended or modified, executed in connection with the Masland
Bonds.
"BORROWER CONTROL DEBT" shall mean, at any time, debt of the Borrower
for borrowed money in an aggregate principal amount outstanding at such
time in excess of $2,500,000 which is subject to Change in Control
Provisions, excluding debt of this Agreement arising under this Agreement.
"BORROWING" shall mean either a borrowing under (i) the Revolving Loan
Commitments or the Term Loans consisting of simultaneous Advances by the
Lenders or (ii) a borrowing under the Swing Line Subcommitment consisting
of an Advance by the Swing Line Lender.
"BUSINESS DAY" shall mean a day of the year on which commercial banks
are not required or authorized to close in Atlanta, Georgia or New York,
New York, and, if the applicable Business Day relates to any Eurodollar
Borrowing, on which dealings are carried on in the London interbank market.
"C/D RESERVE PERCENTAGE" shall mean, for any day, the stated maximum
rate (expressed as a decimal) of all reserve requirements as specified in
Regulation D of the Board of Governors of the Federal Reserve System, or by
any successor thereto (including, without limitation, any basic, marginal,
emergency, supplemental, special, transitional or other reserves)
applicable during such Interest Period to new non-personal time deposits in
the United States of any member of the Federal Reserve System in an amount
equal to or greater than $100,000 with a maturity comparable to the
relevant Interest Period for the applicable Secondary C/D Rate Borrowing.
"CHANGE IN CONTROL" shall mean the occurrence of any event or the
consummation of any transaction (including, without limitation, any merger
or consolidation) the result of which is that (a) any "person" or "group"
(within the meaning of Section 13(d) and 14(d)(2) of the Exchange Act)
other than the Xxxxxxxx Family, becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except
that a person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition), directly or indirectly, of more than 30% of the
Voting Stock of the Borrower (measured by voting power rather than number
of shares), unless the Xxxxxxxx Family continues to own and control more
than 50% of the Voting Stock of the Borrower (measured by voting power
rather than number of shares) following such event or the consummation of
such transaction, or (b) any Change of Control Provision is triggered.
"CHANGE IN CONTROL PROVISION" shall mean any term or provision
contained in any indenture, debenture, note, or other agreement or document
evidencing or governing Borrower Control Debt which requires, or permits
the holder(s) of such Borrower Control Debt to require, that such Borrower
Control Debt be redeemed, repurchased, defeased, prepaid or repaid, either
in whole or in part, or the maturity of such Borrower Control Debt to be
accelerated in any respect, as a result of a change in ownership of the
capital stock of Borrower or voting rights with respect thereto.
"CLOSING DATE" shall mean, the date on or before March 31, 1998 on
which the initial Loans are made or deemed to have been made hereunder and
the conditions set forth in SECTION 5.01 are satisfied or waived in
accordance with SECTION 11.17.
"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or
undertaking under which such Person is obligated or by which it or any of
the property owned by it is bound.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and the rulings issued
thereunder.
"COMMITMENTS" shall mean, collectively, the Revolving Loan
Commitments, the Letter of Credit Subcommitment and the Swing Line
Subcommitment.
"COMMITMENT FEES" shall mean collectively the Revolving Loan
Commitment Fee, the Letter of Credit Fee and the Bond Letter of Credit Fee.
"CONSOLIDATED COMPANIES" shall mean, collectively, the Borrower and
all of its Subsidiaries.
"CONTROLLING SHAREHOLDER" shall mean with respect to the Borrower or
any of its Subsidiaries, a Person possessing, either directly or
indirectly, the power to direct or cause the direction of the management or
policies of such corporation through ownership of voting securities, which
shall mean, in the case of the Borrower, the members of the immediate
family of the late Mr. J. Xxxxxx Xxxxxxxx, including his spouse, his issue,
any spouse of such issue and any estate or trust created by any such member
where any such family member or members controls such trust.
"COST OF FUNDS RATE" shall mean, with respect to any Interest Period,
that rate of interest per annum quoted by the Swing Line Lender to be its
cost of funds rate for such Interest Period, as determined by the Swing
Line Lender in its sole discretion with reference to its funding sources.
"COST OF FUNDS RATE ADVANCE" shall mean any Advance hereunder which
bears interest based on the Cost of Funds Rate.
"COST OF FUNDS RATE BORROWING" shall mean any Borrowing hereunder
which bears interest based on the Cost of Funds Rate.
"COST OF FUNDS RATE QUOTE" shall have the meaning set forth in SECTION
4.01(a)(ii).
"CREDIT DOCUMENTS" shall mean and include, as the context requires,
this Agreement, the Notes, the Subsidiary Guaranty Agreements, the Masland
Bonds, the Parent Guaranty, the Xxxxx Reimbursement Agreement, the Letters
of Credit and any and all other instruments, agreements, documents and
writings contemplated hereby or executed in connection herewith.
"CREDIT PARTIES" shall mean, collectively, each of the Borrowers and
the Guarantors (including all Persons that are currently Borrowers and
Guarantors and all Persons who may at any time in the future become
Borrowers and Guarantors), and every other Person who from time to time
executes a Credit Document with respect to all or any portion of the
Obligations.
"CURRENCY CONTRACTS" shall mean any forward contracts, futures
contracts, foreign exchange contracts, currency swap agreements, and other
similar agreements and arrangements entered into by any Consolidated
Company designed to protect any Consolidated Company against fluctuations
in foreign exchange rates.
"DEBT" shall mean (i) indebtedness for borrowed money or for the
deferred purchase price of property or services (other than trade accounts
payable on customary terms in the ordinary course of business), (ii)
financial obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) financial obligations as lessee under leases
which shall have been or should be, in accordance with GAAP, recorded as
capital leases, (iv) all obligations under Currency Contracts and (v)
obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
financial obligations of others of the kinds referred to in clauses (i)
through (iv) above.
"DEEMED DEBT" shall mean the amount of indebtedness incurred by the
Borrower, its Subsidiaries or any special purpose corporation or trust
which is an Affiliate of the Borrower in connection with any accounts
receivable financing facility, operating lease facility or other financing
vehicle which operating lease facility or financing vehicle is designed to
provide the Borrower or any Subsidiary thereof with off-balance sheet
financing whether or not shown on the balance sheet of Borrower or such
Subsidiary in accordance with GAAP to the extent not included in the
definition of Debt and including, without limitation, the Securitization
Program. For purposes of determining the amount of Deemed Debt incurred by
any Person in connection with any off-balance sheet financing transaction,
all contingent obligations of such Person shall be included as well as any
non-recourse indebtedness incurred in connection with such transaction.
"DEFAULT" shall mean any event that, with notice or lapse of time or
both, would constitute an Event of Default.
"XXXXX XXXXX" shall mean those certain $7,000,000 Development
Authority of Lafayette Revenue Bonds, Series 1998 (The Xxxxx Group, Inc.
Project) secured by the Dixie Letter of Credit.
"DIXIE LETTER OF CREDIT" shall mean that certain letter of credit
issued by SunTrust Bank, Atlanta on behalf of the Borrower pursuant to the
Dixie Reimbursement Agreement in the initial Stated Amount of $7,126,390,
as hereafter modified, amended or substituted from time to time.
"XXXXX REIMBURSEMENT AGREEMENT" shall mean that certain Letter of
Credit Agreement dated as of March 1, 1998, by and between the Borrower and
SunTrust Bank, Atlanta, as letter of credit issuer, relating to those
certain $7,000,000 Development Authority of LaFayette Exempt Facility
Revenue Bonds (The Xxxxx Group, Inc. Project), Series 1998, as hereafter
amended or modified.
"DOCUMENTATION AGENT" shall mean NationsBank, N.A. and its successors.
"DOLLAR" and the sign "$" shall mean lawful money of the United States
of America.
"EBIT" shall mean, for any period, the Consolidated Net Income (Loss)
of the Borrower and its Subsidiaries for such period, PLUS, to the extent
deducted in determining Net Income, Interest Expense of the Consolidated
Companies for such period, and provision for taxes (whether paid or
deferred) of the Consolidated Companies for such period, and without
giving effect to any extraordinary gains or losses, any other non-cash
charges or gains or losses from sales of assets other than (i) inventory
sold in the ordinary course of business and (ii) obsolete or worn-out
equipment disposed of in the ordinary course of business to the extent that
the aggregate gain or loss resulting from such disposal during any period
does not exceed $1,000,000 in the aggregate, determined for the
Consolidated Companies on a consolidated basis in accordance with GAAP.
"EBITDA" shall mean, for any fiscal period of Borrower, an amount
equal to (i) EBIT for such period, plus (ii) to the extent subtracted in
determining Consolidated Net Income (Loss) for such period, the sum of (x)
amortization expense and (y) depreciation expense of the Consolidated
Companies, in each case, determined on a consolidated basis for such period
in conformity with GAAP.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated,
or approved thereunder, now or hereafter in effect (including, without
limitation, those with respect to asbestos or asbestos containing material
or exposure to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public health
and safety, relating to (i) emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or industrial toxic or
hazardous constituents, substances or wastes, including without limitation,
any Hazardous Substance, petroleum including crude oil or any fraction
thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law into the environment (including without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), or (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil or any fraction thereof,
any petroleum product or other waste, chemicals or substances regulated by
any Environmental Law, and (iii) underground storage tanks and related
piping, and emissions, discharges and releases or threatened releases
therefrom, such Environmental Laws to include, without limitation (i) the
Clean Air Act (42 U.S.C. SECTION 7401 ET SEQ.), (ii) the Clean Water Act
(33 U.S.C. SECTION 1251 ET SEQ.), (iii) the Resource Conservation and
Recovery Act (42 U.S.C. SECTION 6901 ET SEQ.), (iv) the Toxic Substances
Control Act (15 U.S.C. SECTION 2601 ET SEQ.), and (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. SECTION 9601 ET
SEQ.).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" shall mean each trade or business (whether or not
incorporated) which, together with the Borrower, is treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code.
"EURODOLLAR ADVANCE" shall mean any Advance hereunder which bears
interest based on the Adjusted LIBO Rate.
"EURODOLLAR BORROWING" shall mean any Borrowing hereunder which bears
interest based on the Adjusted LIBO Rate.
"EVENT OF DEFAULT" shall have the meaning set forth in ARTICLE IX.
"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"FINANCIAL OFFICER" of any corporation shall mean the chief or
principal financial officer, principal accounting officer or treasurer of
such corporation.
"FIXED RATE ADVANCE" shall mean, (i) with respect to the Revolving
Loan Commitments, a Eurodollar Advance or a Secondary C/D Rate Advance and
(ii) with respect to the Swing Line Subcommitment, a Cost of Funds Rate
Advance.
"FORMER CREDIT AGREEMENT" shall mean that certain Third Amended and
Restated Credit Agreement, dated as of March 31, 1995, by and among the
Borrower, the Administrative Agent and the financial institutions party
thereto, as amended through the date hereof.
"GAAP" shall mean, generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession, which are applicable to the circumstances as
of the date of determination.
"GUARANTORS" shall mean each of the Subsidiaries of Borrower which are
party to the Subsidiary Guaranty Agreement from time to time.
"INTANGIBLE ASSETS" shall have the meaning afforded such term under
GAAP, calculated on a consolidated basis.
"INTERCOMPANY ADVANCES" shall mean cash advances, loans or Investments
from the Borrower to any Subsidiary of the Borrower or from any Subsidiary
of the Borrower to the Borrower or another Subsidiary of the Borrower, as
the context may indicate.
"INTEREST COVERAGE RATIO" shall mean, with respect to any period, the
ratio of (i) EBIT for such period to (ii) Interest Expense for such period,
as determined on the last day of each fiscal quarter of Borrower for the
immediately preceding four fiscal quarters ending on such date.
"INTEREST EXPENSE" shall mean, for any period, interest expense as
determined according to GAAP, calculated on a consolidated basis for the
Consolidated Companies.
"INTEREST RATE CONTRACTS" shall mean any forward contracts, futures
contracts, interest rate exchange agreements, interest rate cap agreements,
interest rate collar agreements, and other similar agreements and
arrangements entered into by any Consolidated Company designed to protect
any Consolidated Company against fluctuations in interest rates.
"INTEREST PERIOD" shall mean, shall have mean, (i) as to any
Eurodollar Advances, the interest period selected by the Borrower pursuant
to SECTION 4.04(a) hereof, (ii) as to any Secondary C/D Rate Advance, the
interest period selected by the Borrower pursuant to SECTION 4.04(b) hereof
and (iii) as to any Cost of Funds Rate Advance, the interest rate requested
by the Borrower and agreed to by the Swing Line Lender pursuant to SECTION
4.01(a)(ii) hereof.
"INVESTMENT" shall mean, when used with respect to any Person, any
direct or indirect advance, loan or other extension of credit (other than
the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital
stock, partnership interests, bonds, notes, debentures or other securities
issued by any other Person, in each case, other than an Acquisition. Each
Investment shall be valued as of the date made; provided that any
Investment or portion of an Investment consisting of Debt shall be valued
at the outstanding principal balance thereof as of the date of
determination.
"L/C CASH COLLATERAL ACCOUNT" shall mean a cash collateral account
established by Administrative Agent for deposit of cash collateral for the
Letter of Credit Obligations, which account shall be designated as the L/C
Cash Collateral Account and shall be subject to the sole dominion and
control of the Administrative Agent.
"L/C EXPOSURE" shall mean, with respect to each Lender, the
outstanding Letter of Credit Obligations multiplied by such Lender's Pro
Rata Share of the Revolving Loan Commitments.
"LENDING OFFICE" shall mean for each Lender the office such Lender may
designate in writing from time to time to the Borrower and the
Administrative Agent with respect to each Type of Loan.
"LEVERAGE RATIO" shall mean, at any date, the ratio of (i) Total
Funded Debt to (ii) Total Capitalization of the Borrower and its
Subsidiaries on a consolidated basis as of such date, expressed as a
percentage.
"LETTER OF CREDIT FEE" shall have the meaning set forth in
SECTION 4.05(b).
"LETTER OF CREDIT SUBCOMMITMENT" shall mean $20,000,000.
"LETTERS OF CREDIT" shall mean the letters of credit issued pursuant
to SECTION 2.04 hereof by the Administrative Agent for the account of
Borrower pursuant to the Letter of Credit Subcommitment of the Revolving
Loan Commitments, including without limitation, the Xxxxx Letter of Credit.
"LETTER OF CREDIT OBLIGATIONS" shall mean, with respect to Letters of
Credit, as at any date of determination, the sum of (a) the maximum
aggregate amount which at such date of determination is available to be
drawn by the beneficiaries thereof (assuming the conditions for drawing
thereunder have been met) under all Letters of Credit then outstanding,
PLUS (b) the aggregate amount of all drawings under Letters of Credit
honored by the Administrative Agent not theretofore reimbursed by Borrower.
"LIBOR" shall mean, for any applicable Interest Period, with respect
to Eurodollar Advances the offered rate for deposits in U.S. Dollars, for a
period comparable to the Interest Period and in an amount comparable to the
Administrative Agent's portion of such Advances, appearing on the Telerate
Page 3750 as of 11:00 A.M. (London, England time) on the day that is two
London Business Days prior to the first day of the Interest Period. If two
or more of such rates appear on the Telerate Page 3750, the rate for that
Interest Period shall be the arithmetic mean of such rates. If the
foregoing rate is unavailable from Telerate Page 3750 for any reason, then
such rate shall be determined by the Administrative Agent from the Reuters
Screen LIBO Page or, if such rate is also unavailable on such service, then
on any other interest rate reporting service of recognized standing
designated in writing by the Administrative Agent to Borrower and the other
Lenders; in any such case rounded, if necessary, to the next higher 1/16 of
1.0% if the rate is not such a multiple.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any written agreement to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement
to give any financing statement under the Uniform Commercial Code of any
jurisdiction.)
"MASLAND" shall mean Masland Carpets, Inc., an Alabama corporation and
a wholly-owned Subsidiary of the Borrower.
"MASLAND BONDS" shall mean those certain $7,000,000 State Industrial
Development Authority Taxable Revenue Bonds, Series 1995 (Masland Carpets,
Inc. Project), which are guaranteed by the Borrower pursuant to the Parent
Guaranty.
"MASLAND BOND EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Masland Bonds outstanding multiplied by such
Lender's Pro Rata Share of the Revolving Loan Commitments.
"MATERIAL ADVERSE EFFECT" shall mean any material adverse change in
(i) the business, results of operations, financial condition, assets or
prospects of the Borrower and its Subsidiaries, taken as a whole, (ii) the
ability of Borrower to perform its obligations under this Agreement, or
(iii) the ability of the other Credit Parties (taken as a whole) to perform
their respective obligations under the Credit Documents.
"MATERIAL SUBSIDIARY" shall mean each Subsidiary of the Borrower, now
existing or hereafter established or acquired, that at any time prior to
the Maturity Date, has or acquires total assets in excess of $1,000,000,
or that is otherwise material to the operations or business of the Borrower
or another Material Subsidiary or that has guaranteed any Subordinated
Debt; PROVIDED THAT, for so long as Xxxxx Funding, Inc. holds no assets and
undertakes no activities other than in connection with the Securitization
Program, Xxxxx Funding, Inc. shall not be deemed to be a Material
Subsidiary of the Borrower.
"MATURITY DATE" shall mean the earlier of (i) March 31, 2005, and (ii)
the date on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable (whether by
acceleration or otherwise).
"MULTIEMPLOYER PLAN" shall mean a "multiemployer plan" as defined in
section 4001(a)(3) of ERISA.
"NET INCOME" shall have the meaning afforded such term by GAAP,
calculated on a consolidated basis for the Consolidated Companies.
"NET PROCEEDS" shall mean, with respect to any Asset Disposition, all
cash, including (i) cash receivables (when received) by way of deferred
payment pursuant to a promissory note, a receivable or otherwise (other
than interest payable thereon), and (ii) with respect to Asset Disposition
resulting from the loss, damage, destruction or taking of property, the
proceeds of insurance settlements and condemnation awards (other than the
portion of the proceeds of such settlements and such awards that are used
to repair, replace, improve or restore the item of property in respect of
which such settlement or award was paid provided that the recipient of such
proceeds enters into a binding contractual obligation to effect such
repair, replacement, improvement or restoration within six (6) months of
such loss, damage or destruction and completes such repair, replacement,
improvement or restoration within twelve (12) months (or any longer period
provided that the Consolidated Company is diligently pursuing the repair,
replacement, improvement or restoration at all times during such period) of
such loss, damage, destruction or taking) as and when received in cash, in
either case, received by any Consolidated Company as a result of or in
connection with such transaction, net of reasonable sale expenses, fees and
commissions incurred, and taxes paid or expected to be payable within the
succeeding 12-month period in connection therewith, and net of any payment
required to be made with respect to the outstanding principal amount of,
premium or penalty, if any, and interest on any Debt (other than the Loans)
secured by a Lien (to the extent permitted by SECTION 8.01) upon the asset
sold in such Asset Disposition, net of (a) the costs of such sale, transfer
or other disposition (including cash taxes attributable to such sale,
transfer or other disposition), (b) amounts applied to repayment of Debt
(other than Obligations) secured by a Lien on the asset or property
disposed.
"NET TANGIBLE ASSETS" shall mean, as of any date, the assets of the
Borrower and its Subsidiaries, calculated on a consolidated basis, less
(without duplication) the sum of the following items: (i) any surplus
resulting from any write-up of assets subsequent to December 28, 1997, (ii)
good will, including any amounts (however designated on the balance sheet
of the Borrower or any of its Subsidiaries) representing the cost of
Acquisitions of Subsidiaries in excess of the value of such entity's
underlying tangible assets, unless an appraisal of such assets made by a
reputable firm of appraisers at the time of such acquisition shall indicate
sufficient value to cover such excess, (iii) any Investments that are
included within the permitted Investments allowed pursuant to SECTION
8.03(a) or (b) hereof, (iv) patents, trademarks, copyrights, leasehold
improvements not recoverable at the expiration of a lease, and deferred
charges (including, but not limited to, unamortized debt discount and
expense, organization expenses, experimental and development expenses, but
excluding prepaid expenses), and (v) any other items which would be
classified as intangible assets in accordance with GAAP.
"NET WORTH" shall mean, at any date, stockholders equity of the
Borrower as determined under GAAP, calculated on a consolidated basis,
which shall be a positive number.
"NOTES" shall mean, collectively, the Revolving Credit Notes, the
Swing Line Note and the Term Notes.
"OBLIGATIONS" shall mean all amounts owing to the Administrative
Agent, the Documentation Agent or any Lender pursuant to the terms of this
Agreement or any other Credit Document, including, without limitation, all
Borrowings (including all principal and interest payments due thereunder),
Letter of Credit Obligations, fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Credit Parties, direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with all
renewals, extensions, modifications or refinancings thereof.
"PARENT GUARANTY" shall mean that certain Guaranty of the Borrower,
dated as of March 31, 1995 in favor of the Administrative Agent,
unconditionally guaranteeing the repayment of the obligations of Masland in
connection with the Masland Bonds.
"PAYMENT OFFICE" shall mean the office specified as the "Payment
Office" for the Administrative Agent on the signature page of the
Administrative Agent, or such other location as to which the Administrative
Agent shall have given written notice to Borrower and the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereto.
"PERSON" shall mean an individual, partnership, limited liability
company, corporation (including a business trust), joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PLAN" shall mean any "employee benefit plan" maintained by or on
behalf of the Borrower or any ERISA Affiliate as defined in Section 3(3) of
ERISA, including, but not limited to, any defined benefit pension plan,
profit sharing plan, money purchase pension plan, savings or thrift plan,
stock bonus plan, employee stock ownership plan, Multiemployer Plan, or any
plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits.
"PRIME RATE" shall mean the per annum rate of interest designated from
time to time by Administrative Agent to be its prime rate, with any change
in the rate of interest resulting from a change in the Prime Rate to be
effective as of the opening of business of Administrative Agent on the day
of such change.
"PRO RATA SHARE" shall mean, with respect to the Revolving Loan
Commitment of each Lender, each Revolving Loan or Term Loan to be made by,
and each payment (including, without limitation, any payment of principal,
interest or fees) to be made to each Lender, the percentage designated as
such Lender's Pro Rata Share of the Revolving Loan Commitments, such Loans
or such payments, as applicable, set forth on SCHEDULE 1.1 opposite the
name of such Lender, in each case as such Pro Rata Share may change from
time to time as a result of assignments or amendments made pursuant to this
Agreement.
"REQUIRED LENDERS" shall mean, at any time, the Lenders holding at
least 66 2/3% of the amount of the sum of the Revolving Loan Commitments,
whether or not advanced, plus the outstanding principal amount of the Term
Loans or, upon the termination of the Revolving Loan Commitments, the
Lenders holding at least 66 2/3% of the sum of the Letter of Credit
Obligations, the Masland Bonds and the outstanding principal balance of the
Loans.
"REQUIREMENT OF LAW" for any person shall mean the articles or
certificate of incorporation and bylaws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of EXHIBIT B
hereto, evidencing the maximum aggregate principal indebtedness of the
Borrower to such Lender under such Lender's Revolving Loan Commitment,
either as originally executed or as it may be from time to time
supplemented, modified, amended, renewed or extended.
"REVOLVING LOAN" shall mean, collectively, the Loans made by the
Lenders to the Borrower pursuant to the Revolving Loan Commitments.
"REVOLVING LOAN COMMITMENT" shall mean, for each Lender, the amount
set forth opposite such Lender's name in SCHEDULE 1.1 hereto directly below
the column entitled "Revolving Loan Commitment", as same may be reduced
from time to time pursuant to SECTION 2.10 or adjusted from time to time as
a result of assignments to or from such Lender pursuant to SECTION 11.06.
"REVOLVING LOAN COMMITMENT FEE" shall have the meaning set forth in
SECTION 4.05(a).
"REVOLVING LOAN TERMINATION DATE" shall mean the earlier of (i)
March __, 2003, and (ii) the date on which all amounts outstanding under
this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"SECONDARY C/D BASE RATE" shall mean, with respect to any Interest
Period for any Secondary C/D Rate Borrowing, the consensus bid-side rate of
interest of the secondary certificate of deposit market as shown on page 5
of Telerate Service or a comparable service selected by the Administrative
Agent at 9:00 A.M. (Atlanta, Georgia time), or as soon thereafter as
practicable, on the first day of the Interest Period, for the purchase at
face value of certificates of deposit in an amount substantially equal to
the principal amount of the Secondary C/D Rate Borrowing and with a
maturity approximately equal to such Interest Period.
"SECONDARY C/D RATE" shall mean a rate per annum equal to the
following:
Secondary C/D Base Rate + Assessment Rate, divided by
1.00 - C/D Reserve Percentage
to be calculated on the basis of a 365 day year, if quoted to the
Administrative Agent on that basis, otherwise on the basis of a 360 day
year.
"SECONDARY C/D RATE ADVANCE" shall mean any Advance hereunder which
bears interest based on the Secondary C/D Rate.
"SECONDARY C/D RATE BORROWING" shall mean any Borrowing hereunder
which bears interest based on the Secondary C/D Rate.
"SECURITIZATION DOCUMENTS" shall mean all documents from time to time
executed in connection with the Securitization Program, including without
limitation that certain Xxxxx Funding Master Trust Pooling and Servicing
Agreement, dated as of October 15, 1993 among Xxxxx Funding, Inc. as
transferor, Xxxxx Yarns, Inc. as servicer and NationsBank of Virginia,
N.A., as Trustee for the Certificate holders as such document is originally
executed or as thereafter amended, modified or supplemented.
"SECURITIZATION PROGRAM" shall mean that certain accounts receivable
purchase program established by the Borrower and its wholly-owned
subsidiary, Xxxxx Funding, Inc., for the sale of the accounts receivable of
the Borrower and certain of its Subsidiaries to Xxxxx Funding, Inc. for
further transfer to a trust or series of trusts in return for certain
interests in such trust or trusts with such interests to be sold to certain
third party investors with all other interests in such trust or trusts to
be retained by Xxxxx Funding, Inc. or Xxxxx Yarns, Inc.
"SENIOR FUNDED DEBT" shall mean, with respect to any Person as of any
date of determination, Total Funded Debt of such Person LESS Subordinated
Debt of such Person.
"SENIOR SUBORDINATED NOTE AGREEMENT" shall mean that certain
agreement, dated February 6, 1990, by and among Borrower and various note
purchasers named therein relating to those certain 9.96% Senior
Subordinated Notes due February 1, 2010 in aggregate principal amount of
$50,000,000, as hereafter amended, supplemented or modified.
"STATED AMOUNT" shall have the meaning set forth in the Xxxxx Letter
of Credit.
"SUBORDINATED CONVERTIBLE DEBENTURES" shall mean those certain 7.0%
subordinated convertible debentures issued pursuant to that certain
Indenture dated as of May 15, 1987, by and between the Borrower and Xxxxxx
Guaranty Trust Company of New York as Trustee, as hereafter amended,
supplemented or modified.
"SUBORDINATED DEBT" shall mean all Debt of the Borrower which is
subordinated to the Obligations of the Borrower hereunder on terms
satisfactory to the Lenders in their sole discretion and shall include the
Debt of the Borrower pursuant to the Senior Subordinated Note Agreement and
the Subordinated Convertible Debentures as in effect at the date hereof or
as hereafter amended in accordance with the terms of this Agreement.
"SUBSIDIARY" shall mean, as applied to any Person, (a) any corporation
of which fifty percent (50%) or more of the outstanding capital stock
(other than directors' qualifying shares) having ordinary voting power to
elect a majority of its board of directors, regardless of the existence at
the time of a right of the holders of any class or classes of securities of
such corporation to exercise such voting power by reason of the happening
of any contingency, or any partnership of which fifty percent (50%) or more
of the outstanding partnership interests is at the time owned by such
Person, or by one or more Subsidiaries of such Person, or by such Person
and one or more Subsidiaries of such Person, and (b) any other entity which
is controlled or capable of being controlled by such Person, or by one or
more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person.
"SUBSIDIARY GUARANTY AGREEMENT" shall mean the Guaranty Agreement
executed by each of the Material Subsidiaries of the Borrower in favor of
the Lenders and the Administrative Agent, substantially in the form of
EXHIBIT C as the same may be amended, restated or supplemented from time to
time.
"SWING LINE ADVANCE" shall mean a Borrowing pursuant to SECTION 2.03
consisting of a Swing Line Loan made by the Swing Line Lender to Borrower.
"SWING LINE BORROWING" shall mean a Borrowing consisting or to consist
of a Swing Line Advance.
"SWING LINE BORROWING NOTICE" shall mean the notice given by Borrower
to the Administrative Agent and the Swing Line Lender requesting a Swing
Line Advance as provided in SECTION 4.01(a)(ii).
"SWING LINE EXPOSURE" shall mean, with respect to each Lender, the
outstanding principal amount of the Swing Loans multiplied by such Lender's
Pro Rata Share of the Revolving Loan Commitments.
"SWING LINE FACILITY" shall mean the credit facility described in
SECTION 2.03.
"SWING LINE LENDER" shall mean SunTrust Bank, Atlanta or any
subsequent Lender extending to Borrower the Swing Line Subcommitment
hereunder.
"SWING LINE LOANS" shall mean, collectively, the loans made to
Borrower by the Swing Line Lender pursuant to the Swing Line Subcommitment.
"SWING LINE NOTE" shall mean the promissory note evidencing the Swing
Line Loans substantially in the form of EXHIBIT E and duly completed in
accordance with the terms hereof.
"SWING LINE SUBCOMMITMENT" shall mean the commitment of the Swing Line
Lender to make Swing Line Loans in an aggregate principal amount at any
time outstanding not to exceed $15,000,000.
"TARBORO DISPOSITION" shall mean the sale or disposition of the
manufacturing facility of the Consolidated Companies located at Tarboro,
North Carolina, all machinery, equipment, supplies, parts and other
tangible assets located at the facility, all accounts receivable,
inventory, goodwill and other assets relating to the business being
conducted at the facility.
"TAXES" shall mean any present or future taxes, levies, imposts,
duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social security
and franchise taxes now or hereafter imposed or levied by the United
States, or any state, local or foreign government or by any department,
agency or other political subdivision or taxing authority thereof or
therein and all interest, penalties, additions to tax and similar
liabilities with respect thereto.
"TELERATE" shall mean, when used in connection with any designated
page and LIBOR, the display page so designated on the Dow Xxxxx Telerate
Service (or such other page as may replace that page on that service for
the purpose of displaying rates comparable to LIBOR).
"TERM LOAN" shall mean the term loan made by the Lenders to the
Borrower on the Closing Date pursuant SECTION 3.01 evidenced by the Term
Notes.
"TERM NOTE" shall mean any of the promissory notes issued by the
Borrower to each of the Lenders in the amount of their respective Term
Loans substantially in the form of EXHIBIT D, either as originally executed
or as the same may from time to time be supplemented, modified, amended,
renewed or extended.
"TOTAL CAPITALIZATION" shall mean, with respect to any Person as of
any date of determination, the sum of (i) Total Funded Debt, PLUS (ii) Net
Worth.
"TOTAL COMMITMENTS" shall mean, at any time, the sum of the Revolving
Loan Commitments of each of the Lenders.
"TOTAL FUNDED DEBT" shall mean all (i) indebtedness for money
borrowed, (ii) debt evidenced by bonds, debentures, notes, or other similar
instruments, (iii) purchase money debt, (iv) debt arising under conditional
sales contracts and similar title retention debt instruments, (v)
capitalized leases, (vi) letters of credit, (vii) indebtedness in respect
of mandatory redemption, put or mandatory dividend rights on capital stock
or other equity of such Person, (viii) indebtedness arising under Currency
Contracts, and (ix) all obligations under direct and indirect guaranties in
respect of obligations of others of the kinds referred to in (i) through
(viii) above, excluding regular trade payables PLUS, (x) with respect to
the Consolidated Companies, Deemed Debt of the Consolidated Companies in
excess of $60,000,000.
"TREASURY STOCK" shall mean stock of the Borrower purchased or
repurchased by the Borrower to be held or retired by the Borrower.
"TYPE" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances, Eurodollar Advances or Cost of Funds Rate Advances.
"VOTING STOCK" shall mean all stock of the Borrower entitled to vote
for the election of the Board of Directors of the Borrower.
SECTION 1.02 ACCOUNTING TERMS. Unless otherwise defined or specified
herein, all accounting terms shall be construed herein, all accounting
determinations hereunder shall be made, all financial statements required
to be delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP; PROVIDED, HOWEVER, that
compliance with the financial covenants and calculations set forth in
SECTION 8.11, the other provision of ARTICLE VIII, and elsewhere herein,
and in the definitions used in such covenants and calculations, shall be
calculated, made and applied in accordance with GAAP and such generally
accepted accounting principles as in effect on the date of this Agreement
applied on a basis consistent with the preparation of the financial
statements referred to in SECTION 6.14 unless and until the parties enter
into an agreement with respect thereto in accordance with SECTION 11.15.
SECTION 1.03 OTHER DEFINITIONAL TERMS. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Article, Section, Schedule, Exhibit and
like references are to this Agreement unless otherwise specified.
SECTION 1.04 EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
hereto are by reference made a part hereof.
ARTICLE II
AMOUNT AND TERMS OF REVOLVING LOAN COMMITMENTS
SECTION 2.01 DESCRIPTION OF REVOLVING CREDIT FACILITIES. Subject to
and upon the terms and conditions herein set forth (i) the Lenders hereby
establish in favor of the Borrower a revolving credit facility pursuant to
which such Lenders agree to make Revolving Loans to the Borrower in
accordance with SECTION 2.02, (ii) the Swing Line Lender hereby establishes
in favor of the Borrower a swing line credit facility pursuant to which the
Swing Line Lender agrees to make Swing Line Loans to the Borrower in
accordance with SECTION 2.03, and (iii) each Lender agrees to purchase a
participation interest in the Letters of Credit, the Masland Bonds and
Swing Line Loans in accordance with this ARTICLE II; PROVIDED, HOWEVER,
that in no event may the aggregate principal amount of all outstanding
Revolving Loans, Swing Line Loans, the Masland Bonds and the Letter of
Credit Obligations outstanding exceed at any time the Total Commitments
from time to time in effect.
SECTION 2.02 REVOLVING LOANS.
(a) Subject to and upon the terms and conditions herein set forth
(including the limitation set forth in SECTION 2.01), each Lender severally
agrees to make to the Borrower, from time to time prior to the Revolving
Loan Termination Date, Revolving Loans in an aggregate principal amount
outstanding at any time not to exceed an amount equal to (i) such Lender's
Revolving Loan Commitment, MINUS (ii) the sum of such Lender's L/C
Exposure, Masland Bond Exposure and Swing Line Exposure. The Borrower
shall be entitled to repay and reborrow Revolving Loans in accordance with
the provisions, and subject to the limitations, set forth herein (including
the limitation set forth in SECTION 2.01).
(b) Each Revolving Loan shall, at the option of Borrower, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Base Rate Advances, Secondary C/D Rate Advances or
Eurodollar Advances. The aggregate principal amount of each Borrowing of
Revolving Loans shall be not less than $5,000,000 or a greater integral
multiple of $1,000,000, PROVIDED that each Borrowing of Revolving Loans
comprised of Base Rate Advances shall be not less than $1,000,000 or a
greater integral multiple of $1,000,000, except to the extent otherwise
provided with respect to Revolving Loans made pursuant to SECTION 2.03(e).
At no time shall the total number of Borrowings outstanding under the Term
Loans and the Revolving Loan Commitments exceed eight; PROVIDED that, for
purposes of determining the number of Borrowings outstanding and the
minimum amount for Borrowings resulting from conversions or continuations,
all Borrowings of Base Rate Advances under the Term Loans and the Revolving
Loan Commitments shall be considered as one Borrowing.
(c) The Borrower's obligation to pay the principal of, and interest
on, the Revolving Loans to each Lender shall be evidenced by the records of
the Administrative Agent and such Lender and by the Revolving Note payable
to such Lender (or the assignor of such Lender) completed in conformity
with this Agreement.
(d) All outstanding principal amounts under the Revolving Loans, and
all accrued but unpaid interest thereon shall be due and payable in full on
the Revolving Loan Termination Date.
SECTION 2.03 SWING LINE LOANS.
(a) Subject to and upon the terms and conditions herein set forth
(including the limitation set forth in SECTION 2.01), the Swing Line Lender
agrees to make to the Borrower, from time to time prior to the Revolving
Loan Termination Date, Swing Line Loans in an aggregate principal amount
outstanding at any time not to exceed the Swing Line Subcommitment then in
effect. The Borrower shall be entitled to repay and reborrow Swing Line
Loans in accordance with the provisions, and subject to the limitations,
set forth herein (including the limitation set forth in SECTION 2.01).
(b) Each Swing Line Loan shall, at the option of the Borrower, be made
as a Base Rate Advance or a Cost of Funds Rate Advance. The aggregate
principal amount of each Swing Line Borrowing shall be not less than
$100,000 or a greater integral multiple of $50,000. At no time shall the
number of Swing Line Borrowings outstanding under this SECTION 2.03 exceed
three; PROVIDED THAT, for purposes of determining the number of Swing Line
Borrowings outstanding, all Swing Line Borrowings consisting of Base Rate
Advances shall be considered as one Swing Line Borrowing.
(c) The Borrower's obligation to pay the principal of, and interest
on, the Swing Line Loans shall be evidenced by the records of the
Administrative Agent and the Swing Line Lender and by the Swing Line Note
payable to the Swing Line Lender (or the assignor of such Swing Line
Lender) completed in conformity with this Agreement.
(d) The outstanding principal amount under each Swing Line Loan, and
all accrued but unpaid interest thereon, shall be due and payable in full
(i) on the expiration of the Interest Period applicable to such Swing Line
Loan if outstanding as a Cost of Funds Rate Advance, and (ii) on the
Revolving Loan Termination Date.
(e) At any time on the request of the Swing Line Lender, each Lender
other than the Swing Line Lender shall purchase a participating interest in
all outstanding Swing Line Loans in an amount equal to its Pro Rata Share
(based upon on its respective Pro Rata Share of the Revolving Loan
Commitments) of such Swing Line Loans, and the Swing Line Lender shall
furnish each Lender with a certificate evidencing such participating
interest. Such purchase shall be made on the third Business Day after such
request is made; PROVIDED, HOWEVER, that unless an Event of Default has
occurred and is continuing on the date such request is made, the purchase
of a participating interest in any Swing Line Loan outstanding as a Cost of
Funds Rate Advance shall not be required to be made until the expiration of
the current Interest Period in effect for such Swing Line Loan unless
otherwise requested by the Swing Line Lender. On the date of such required
purchase, each Lender will immediately transfer to the Swing Line Lender,
in immediately available funds, the amount of its participation. Whenever,
at any time after the Swing Line Lender has received from any such Lender
the funds for its participating interest in a Swing Line Loan, the
Administrative Agent or the Swing Line Lender receives any payment on
account thereof, the Administrative Agent or the Swing Line Lender, as the
case may be, will distribute to such Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating
interest was outstanding and funded); PROVIDED, HOWEVER, that if such
payment received by the Administrative Agent or the Swing Line Lender is
required to be returned, such Lender will return to the Administrative
Agent or the Swing Line Lender any portion thereof previously distributed
by the Administrative Agent or the Swing Line Lender to it. Each Lender's
obligation to purchase such participating interests shall be absolute and
unconditional and shall not be affected by any circumstance, including
without limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have against the Swing
Line Lender requesting such purchase or any other Person for any reason
whatsoever, (ii) the occurrence or continuation of a Default or an Event of
Default or the termination of the Revolving Loan Commitments, (iii) any
adverse change in the condition (financial or otherwise) of Borrower, any
of its Subsidiaries, or any other Person, (iv) any breach of this Agreement
by Borrower or any other Lender, or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing;
PROVIDED, HOWEVER, that no such obligation shall exist (A) to the extent
that the aggregate Swing Line Loans were advanced in excess of the Swing
Line Subcommitment then in effect, or (B) with respect to any Swing Line
Loan where the Swing Line Lender actually advanced to the Borrower net
proceeds from the Swing Line Loan (and therefore was not refunding a
previous Swing Line Loan) at a time when (x) the Swing Line Lender had
actual knowledge that an Event of Default had occurred and then existed,
and (y) the Required Lenders had not agreed to waive such Event of Default
for purposes of funding such Swing Line Loan.
SECTION 2.04 LETTER OF CREDIT SUBCOMMITMENT. Subject to, and upon the
terms and conditions, hereof (including the limitations of SECTION 2.01)
the Borrower may request, in accordance with the provisions of this SECTION
2.04 and SECTION 2.05, that on and after the Closing Date, the
Administrative Agent issue a Letter or Letters of Credit for the account of
the Borrower; PROVIDED that (i) no Letter of Credit shall have an
expiration date that is later than ten days prior to the Revolving Loan
Termination Date; (ii) each Letter of Credit issued by the Administrative
Agent shall be in a stated amount of at least $250,000; (iii) the Borrower
shall not request that the Administrative Agent issue any Letter of Credit,
if, after giving effect to such issuance, the aggregate Letter of Credit
Obligations would exceed the Letter of Credit Subcommitment.
SECTION 2.05 NOTICE OF ISSUANCE OF LETTER OF CREDIT; AGREEMENT TO
ISSUE.
(a) Whenever the Borrower desires the issuance of a Letter of Credit,
it shall, in addition to any application and documentation procedures
required by the Administrative Agent for the issuance of such Letter of
Credit, deliver to the Administrative Agent a written notice no later than
11:00 A.M. (Atlanta, Georgia time) at least ten (10) days in advance of the
proposed date of issuance. Each such notice shall specify (i) the proposed
date of issuance (which shall be a Business Day); (ii) the face amount of
the Letter of Credit; (iii) the expiration date of the Letter of Credit;
and (iv) the name and address of the beneficiary with respect to such
Letter of Credit and shall attach a precise description of the
documentation and a verbatim text of any certificate to be presented by the
beneficiary of such Letter of Credit which would require the Administrative
Agent to make payment under the Letter of Credit, PROVIDED that the
Administrative Agent may require changes in any such documents and
certificates in accordance with its customary letter of credit practices,
and PROVIDED FURTHER, that no Letter of Credit shall require payment
against a conforming draft to be made thereunder on the same Business Day
that such draft is presented if such presentation is made after 11:00 A.M.
(Atlanta, Georgia time). In determining whether to pay under any Letter of
Credit, the Administrative Agent shall be responsible only to determine
that the documents and certificate required to be delivered under its
Letter of Credit have been delivered, and that they comply on their face
with the requirements of the Letter of Credit. Promptly after receiving
the notice of issuance of a Letter of Credit, the Administrative Agent
shall notify each Lender of such Lender's respective participation therein,
determined in accordance with its respective Pro Rata Share of the
Revolving Loan Commitments as determined on the date of the issuance of
such Letter of Credit.
(b) The Administrative Agent agrees, subject to the terms and
conditions set forth in this Agreement, to issue for the account of the
Borrower, a Letter of Credit in a face amount equal to the face amount
requested under paragraph (a) above, following its receipt of a notice and
the application and other documents required by SECTION 2.05(a).
Immediately upon the issuance of each Letter of Credit, each Lender shall
be deemed to, and hereby agrees to, have irrevocably purchased from the
Administrative Agent a participation in such Letter of Credit and any
drawing thereunder in an amount equal to such Lender's Pro Rata Share of
the Total Commitments multiplied by the face amount of such Letter of
Credit.
(c) In addition, upon the terms and subject to the conditions of the
Xxxxx Reimbursement Agreement, the terms of which are expressly
incorporated herein by this reference, the Administrative Agent will issue,
within thirty (30) days after the Closing Date, the Xxxxx Letter of Credit
which for purposes of this Agreement, shall be deemed to have been issued
hereunder pursuant to the Revolving Loan Commitments, and the Revolving
Loan Commitments and Letter of Credit Subcommitment shall be reduced by the
stated amount thereof. Each Lender hereby agrees to irrevocably and
automatically purchases participation interest in such Xxxxx Letter of
Credit upon the date of issuance thereof and in an draw paid pursuant to
such Xxxxx Letter of Credit in accordance with subsection (b) above.
Notwithstanding anything in this Agreement to the contrary, the Lenders
(other than SunTrust) shall not be entitled to receive any fees paid with
respect to the Xxxxx Letter of Credit pursuant to the Xxxxx Reimbursement
Agreement except as specifically provided in SECTION 4.05(c) hereof.
SECTION 2.06 PAYMENT OF AMOUNTS DRAWN UNDER LETTER OF CREDIT.
(a) In the event of any request for a drawing under any Letter of
Credit by the beneficiary thereof, the Administrative Agent shall notify
the Borrower and the Lenders on or before the date on which the
Administrative Agent intends to honor such drawing, and the Borrower shall
reimburse the Administrative Agent on the day on which such drawing is
honored in an amount, in same day funds, equal to the amount of such
drawing, PROVIDED that anything contained in this Agreement to the contrary
notwithstanding, unless the Borrower shall have notified the Administrative
Agent prior to 11:00 A.M. (Atlanta, Georgia time) on the Business Day
immediately prior to the date on which such drawing is honored, that the
Borrower intends to reimburse the Administrative Agent for the amount of
such drawing in funds other than the proceeds of Revolving Loans, the
Borrower shall be deemed to have timely given a Notice of Revolving
Borrowing to the Administrative Agent requesting Revolving Loans which are
Base Rate Advances on the date on which such drawing is honored in an
amount equal to the amount of such drawing, and the Lenders shall by 1:00
P.M. (Atlanta, Georgia time) on the date of such drawing, make Revolving
Loans which are Base Rate Advances in the amount of such drawing, the
proceeds of which shall be applied directly by the Administrative Agent to
reimburse the Administrative Agent for the amount of such drawing, PROVIDED
that for the purposes solely of such Borrowing, the conditions and
precedents set forth in SECTIONS 5.01 and 5.02 hereof shall not be
applicable, and PROVIDED FURTHER that if for any reason proceeds of the
Revolving Loans are not received by the Administrative Agent on such date
in the amount equal to the amount of such drawing, the Borrower shall
reimburse the Administrative Agent on the Business Day immediately
following the date of such drawing in an amount, in Dollars and immediately
available funds, equal to the excess of the amount of such drawing over the
amount of such Revolving Loans, if any, which are so received, plus accrued
interest on the amount at the applicable rate of interest for Base Rate
Advances.
Notwithstanding the foregoing, with respect to the Xxxxx Letter of
Credit, if the Borrower's reimbursement obligations for such draft arise
under Section 2A(i) of the Xxxxx Reimbursement Agreement, the
Administrative Agent shall give immediate notice to each of the Lenders of
such payment by the Administrative Agent. If the Borrower's reimbursement
obligations for such draft arise under Section 2(a)(ii) or 2(a)(iii) of the
Xxxxx Reimbursement Agreement, the Administrative Agent shall give notice
to each of the Lenders of such payment by the Administrative Agent on the
next succeeding Business Day unless such draw is sooner reimbursed by the
Borrower.
(b) Notwithstanding any provision of this Agreement to the contrary,
to the extent that any Letter of Credit or portion thereof remains
outstanding on the Revolving Loan Termination Date, the parties hereby
agree that the beneficiary or beneficiaries thereof shall be deemed to have
made a drawing of all available amounts pursuant to such Letters of Credit
on the Revolving Loan Termination Date, which amounts shall be reimbursed
to the Administrative Agent as set forth above and thereafter held by the
Administrative Agent as cash collateral for its remaining obligations
pursuant to such Letters of Credit in the L/C Cash Collateral Account.
SECTION 2.07 PAYMENT BY LENDERS. In the event that the Borrower shall
fail to reimburse the Administrative Agent as provided in SECTION 2.06 by
borrowing Revolving Loans, or otherwise providing an amount equal to the
amount of any drawing honored by the Administrative Agent pursuant to any
Letter of Credit issued by it, the Administrative Agent shall promptly
notify each Lender of the unreimbursed amount of such drawing and of such
Lender's respective participation therein. Each Lender shall make
available to the Administrative Agent an amount equal to its respective
participation, in Dollars and in immediately available funds, at the office
of the Administrative Agent specified in such notice not later than 1:00
P.M. (Atlanta, Georgia time) on the Business Day after the date notified by
the Administrative Agent. In the event that any such Lender fails to make
available to the Administrative Agent the amount of such Lender's
participation in such Letter of Credit, the Administrative Agent shall be
entitled to recover such amount on demand from such Lender together with
interest as provided for in SECTION 4.02(d). The Administrative Agent
shall distribute to each other Lender which has paid all amounts payable
under this Section with respect to any Letter of Credit, such Lender's Pro
Rata Share of all payments received by the Administrative Agent from the
Borrower in reimbursement of drawings honored by the Administrative Agent
under such Letter of Credit when such payments are received.
SECTION 2.08 OBLIGATIONS ABSOLUTE. The obligation of the Borrower to
reimburse the Administrative Agent for drawings made under Letters of
Credit issued for the account of the Borrower and the Lenders' obligation
to honor their participations purchased therein shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including without limitation, the
following circumstances:
(a) Any lack of validity or enforceability of any Letter of Credit;
(b) The existence of any claim, set-off, defense or other right which
the Borrower or any Subsidiary or Affiliate of the Borrower may have at any
time against a beneficiary or any transferee of any Letter of Credit (or
any Persons or entities for whom any such beneficiary or transferee may be
acting), any Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated
transaction (including without limitation any underlying transaction
between the Borrower or any of its Subsidiaries and Affiliates and the
beneficiary for which such Letter of Credit was procured); PROVIDED that
nothing in this Section shall affect the right of the Borrower to seek
relief against any beneficiary, transferee, Lender or any other Person in
any action or proceeding or to bring a counterclaim in any suit involving
such Persons;
(c) Any draft, demand, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any
respect;
(d) Payment by the Administrative Agent under any Letter of Credit
against presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit;
(e) Any other circumstance or happening whatsoever which is similar to
any of the foregoing; or
(f) the fact that a Default or an Event of Default shall have occurred
and be continuing.
Nothing in this SECTION 2.08 shall prevent an action against the
Administrative Agent for its gross negligence or willful misconduct.
SECTION 2.09 INDEMNIFICATION; NATURE OF ADMINISTRATIVE AGENT'S DUTIES.
(a) In addition to amounts payable elsewhere provided in this
Agreement, without duplication, the Borrower hereby agrees to protect,
indemnify, pay and save the Administrative Agent and each Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and reasonable expenses (including reasonable attorney's
fees and disbursements) which the Administrative Agent or any Lender may
incur or be subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit for the account of the Borrower, other
than as a result of the gross negligence or willful misconduct of the
Administrative Agent; or (ii) the failure of the Administrative Agent to
honor a drawing under any Letter of Credit due to any act or omission
(whether rightful or wrongful) of any present or future DE JURE or DE FACTO
government or governmental authority.
(b) Notwithstanding any other provision contained in this Agreement,
the Administrative Agent shall not be obligated to issue any Letter of
Credit, nor shall any Lender be obligated to purchase its participation in
any Letter of Credit to be issued hereunder, if the issuance of such Letter
of Credit or purchase of such participation shall have become unlawful or
prohibited by compliance by Administrative Agent or such Lender in good
faith with any law, governmental rule, guideline, request, order,
injunction, judgment or decree (whether or not having the force of law);
PROVIDED that in the case of the obligation of a Lender to purchase such
participation, such Lender shall have notified the Administrative Agent to
such effect in writing at least ten (10) Business Days' prior to the
issuance thereof by the Administrative Agent, which notice shall relieve
the Administrative Agent of its obligation to issue such Letter of Credit
pursuant to SECTION 2.04 and SECTION 2.05 hereof.
SECTION 2.10 REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
(a) Upon at least ten (10) days' prior telephonic notice (promptly
confirmed in writing) to the Administrative Agent, the Borrower shall have
the right, without premium or penalty, to terminate the Revolving Loan
Commitments, in part or in whole, provided that (i) any such termination
shall apply to proportionately and permanently reduce the Revolving Loan
Commitment of each of the Lenders, (ii) any partial termination pursuant to
this SECTION 2.10(a) shall be in an amount of at least $5,000,000 and
integral multiples of $1,000,000, and (iii) no such reduction shall be
permitted which would reduce the Total Commitments to an amount less than
the greater of (A) $50,000,000 and (B) the sum of (1) the Letter of Credit
Obligations, (2) the aggregate outstanding principal amount of the
Revolving Loans, (3) the aggregate outstanding principal amount of the
Swing Line Loans, and (4) the aggregate outstanding principal amount of the
Masland Bonds.
(b) If any mandatory prepayment shall be due with respect to the Term
Loans pursuant to SECTION 3.03, but such prepayment cannot be applied, in
whole or in part, because the Term Loans have been, or are then being, paid
in full, then the Revolving Loan Commitments shall automatically and
ratably be reduced by an amount equal to such prepayment or portion thereof
which cannot be so applied to prepay the Term Loans; PROVIDED, HOWEVER,
that the aggregate reduction of the Total Commitments required pursuant to
this SECTION 2.10(b) shall not exceed $20,000,000 in the aggregate during
the term of this Agreement. Any such reduction of the Revolving Loan
Commitments shall apply as a proportional and permanent reduction with
respect to the Revolving Loan Commitments of each of the Lenders.
SECTION 2.11 MANDATORY PREPAYMENTS OF REVOLVING LOANS. If the sum of
the (i) aggregate outstanding principal amount of the Revolving Loans, (ii)
aggregate outstanding principal amount of the Swing Line Loans, (iii)
principal amount of the Masland Bonds and (iv) Letter of Credit Obligations
exceed at any time the Total Commitments, as reduced pursuant to SECTION
2.10 or otherwise, the Borrower shall immediately repay the Revolving Loans
and/or Swing Line Loans by an amount equal to such excess. Each prepayment
of Revolving Loans or Swing Line Loans shall be applied first to Base Rate
Advances to the full extent thereof before application to Fixed Rate
Advances. In the event that following such reduction, the sum of the
Letter of Credit Obligations and Masland Bonds still exceeds the Total
Commitments, the Borrower shall immediately deliver to the Administrative
Agent an amount in Dollars equal to the amount of such excess to be held by
the Administrative Agent in the L/C Cash Collateral Account.
SECTION 2.12 USE OF PROCEEDS. The proceeds of the Revolving Loans and
Swing Line Loans shall be used, initially, to refund Debt outstanding
pursuant to the Former Credit Agreement and thereafter, as working capital
and for other general corporate purposes of the Borrower and its
Subsidiaries, including without limitation, Acquisitions.
SECTION 2.13 MASLAND BONDS.
(a) PURCHASE OF PARTICIPATION. Each of the Lenders acknowledges that
the Administrative Agent is the owner of the Masland Bonds. On the Closing
Date, the Administrative Agent shall sell to each Lender and each Lender
shall automatically be deemed to have purchased from the Administrative
Agent a ratable participation in the Masland Bonds equal to such Lender's
Pro Rata Share of the Revolving Loan Commitments. Each Lender shall pay
the full purchase price of its Pro Rata Share of the Masland Bonds in
immediately available funds at the main office of the Administrative Agent
on the Closing Date. The Pro Rata Shares of each of the Lenders in the
Masland Bonds shall be ratably concurrent, without preference or priority
one over another and each Lender purchasing such participation shall be
entitled to receive its Pro Rata Share of any payments or principal or
interest received by the Administrative Agent with respect to the Masland
Bonds.
(b) AGREEMENTS CONSTITUTES GUARANTOR CREDIT AGREEMENT UNDER MASLAND
BONDS. The parties hereby agree that, as of the Closing Date, this
Agreement shall constitute an amendment and restatement of the Former
Credit Agreement and not a novation thereof and that this Agreement shall
constitute the "Guarantor Credit Agreement" as such term is defined in the
Bond Purchase Agreement and shall constitute an amendment of the Former
Credit Agreement for purposes of Section 7.1(e) of the Loan Agreement
executed in connection with the Masland Bonds. Without limiting the
generality of the foregoing, the references in the Bond Purchase Agreement
to the "Applicable Margin" and "LIBOR" shall have the meanings set forth
herein for purposes of the Masland Bonds, as provided in Section 6(b) of
the Bond Purchase Agreement.
(c) TERMINATION OF PARTICIPATION UPON REVOLVING LOAN TERMINATION
DATE. Upon the Revolving Loan Termination Date, unless a Default or an
Event of Default has occurred and is continuing or unless SunTrust has
exercised its put with respect to the Masland Bonds pursuant to Section
6(c) of the Bond Purchase Agreement, the participation of the Lenders in
the Masland Bonds shall terminate and be of no further force and effect and
SunTrust shall repay the Lenders any amounts due with respect to the
participation in the Masland Bonds.
(d) FUNDING OF DEFAULT UNDER MASLAND BONDS. The Borrower hereby
agrees that upon the failure of Masland to repay all amounts outstanding
pursuant to Masland Bonds in full upon maturity, whether due to demand,
acceleration, put or otherwise, and the subsequent failure of the Borrower
to immediately pay such defaulted amount pursuant to the Parent Guaranty,
the Borrower shall be deemed to have requested a Base Rate Borrowing
pursuant to the Revolving Loan Commitments hereunder in an amount equal to
such defaulted amount payable to the Lenders pro rata based upon the
respective participations of the Lenders in the Masland Bonds.
(e) MASLAND CONSENT. Masland, by its execution and delivery of the
Subsidiary Guaranty Agreement, shall be deemed to have consented to the
provisions of this SECTION 2.13.
ARTICLE III
AMOUNT AND TERMS OF TERM LOANS
SECTION 3.01 TERM LOANS.
(a) Subject to and upon the terms and conditions herein set forth,
each Lender severally agrees to make to the Borrower on the Closing Date a
Term Loan in an amount equal to the amount set forth opposite such Lender's
name on SCHEDULE 1.1, such Term Loans to be repaid as set forth in
SECTION 3.02(b). The Borrower shall not be entitled to reborrow any
amounts repaid with respect to the Term Loans.
(b) Each Term Loan shall, at the option of the Borrower, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Base Rate Advances, Secondary C/D Rate Advances or
Eurodollar Advances. The aggregate principal amount of each Borrowing of
Term Loans consisting of Eurodollar Advances or Secondary C/D Rate Advances
shall be not less than $5,000,000 or a greater integral multiple of
$1,000,000, and the aggregate principal amount of each Borrowing of Term
Loans consisting of Base Rate Advances shall not be less than $1,000,000 or
a greater integral multiple of $1,000,000. At no time shall the number of
Borrowings outstanding under the Term Loans and the Revolving Loan
Commitments exceed eight; PROVIDED that, for the purpose of determining the
number of Borrowings outstanding and the minimum amount for Borrowings
resulting from conversions or continuations, all Borrowings under the Term
Loans and the Revolving Loan Commitments comprised of Base Rate Advances
shall be considered in each case as one Borrowing.
SECTION 3.02 NOTES; REPAYMENT OF PRINCIPAL.
(a) The Borrower's obligation to pay the principal of, and interest
on, the Term Loans to each Lender shall be evidenced by the records of the
Administrative Agent and such Lender and by the respective Term Note
payable to such Lender (or the assignor of such Lender) completed in
conformity with this Agreement.
(b) The Borrower agrees to repay the Term Loans in twenty-eight (28)
consecutive quarterly installments, commencing on June 30, 1998, and
continuing on the last day of each calendar quarter (each, a "Mandatory
Reduction Date") in accordance with the chart set forth below:
Quarter Ending Quarterly Payment Amount
June 30, 1998 through March 31, 1999 $1,500,000
June 30, 1999 through March 31, 2000 2,000,000
June 30, 2000 through March 31, 2001 2,250,000
June 30, 2001 through March 31, 2002 2,250,000
June 30, 2002 through March 31, 2003 2,250,000
June 30, 2003 through March 31, 2004 2,250,000
June 30, 2004 through March 31, 2005 2,500,000
Additionally, the Term Loans shall be repaid as required by SECTION 3.03
hereof. Any remaining principal and interest with respect to the Term
Loans shall be due and payable in full on the Maturity Date.
SECTION 3.03 MANDATORY PREPAYMENTS.
(a) No mandatory prepayment shall be required pursuant to this SECTION
3.03 except in connection with an Asset Disposition or series of related
Asset Dispositions where the aggregate value of the assets subject to such
Asset Disposition(s) exceeds $1,000,000 (based on the Asset Fair Market
Values thereof); PROVIDED THAT, regardless of the value of the assets
disposed of, no mandatory prepayment shall be required with respect to (i)
Asset Dispositions resulting from loss, damage, destruction, or taking
where the proceeds thereof are utilized so as to be excluded from the
definition of Net Proceeds, (ii) Asset Dispositions occurring as a part of
any sale and leaseback transactions permitted pursuant to SECTION 8.07,
(iii) the Tarboro Disposition, and (iv) Asset Dispositions in connection
with off-balance sheet financings resulting in Deemed Debt hereunder.
Whenever any Asset Disposition shall have occurred in which such Asset
Fair Market Values shall have equaled or exceeded such amount, then within
fifteen (15) Business Days after each date on which any Consolidated
Company receives any Net Proceeds as a result of or in connection with an
Asset Disposition by any Consolidated Company, the Term Loans shall be
prepaid, or in the event that the Term Loans have been prepaid in full, the
Total Commitments shall be reduced, on a pro rata basis by an amount equal
to the Net Proceeds of such Asset Disposition PLUS interest accrued and
unpaid on the amount of such prepayment; PROVIDED THAT, in the event that
the Borrower has invested or intends to reinvest the Net Proceeds of such
Asset Disposition in other capital assets to be used in the business of the
Borrower, the Borrower may deliver to the Administrative Agent a
certificate of a Financial Officer (a "Reinvestment Certificate") of the
Borrower indicating either that Borrower has reinvested or that Borrower's
intends to reinvest such Net Proceeds in capital assets to be used in
Borrower's business within 180 days (or such longer period as may be
allowed in the definition of Net Proceeds in the case of certain Asset
Dispositions), then the application of the Net Proceeds of such Asset
Disposition to repay the Term Loans or reduce the Total Commitments
hereunder shall not be required. At the end of such 180 day period (or
such longer period as may be specified in the applicable Reinvestment
Certificate in the circumstances described above), any portion of the Net
Proceeds of such Asset Disposition in excess of $100,000 which have not
been used as set forth in the Reinvestment Certificate shall immediately be
used to repay the Term Loans or, in the event that the Term Loans have been
paid in full, to reduce the Total Commitments as provided herein.
(b) Notwithstanding the provisions of paragraph (a) of this
SECTION 3.03, (i) no mandatory prepayment shall be required to be made
under paragraph (a) if the amount of such payment is less than $100,000 in
any instance, (ii) mandatory prepayments in aggregate amounts of less than
$1,000,000 may be paid within fifteen (15) Business Days after the last day
of the calendar month in which received rather than on the date received as
provided above, and (iii) mandatory prepayment amounts otherwise required
under said paragraph (a) shall be rounded to nearest multiple of $100,000
(such that, for example, if the portion of Net Proceeds required to be
prepaid pursuant to paragraph (a) is $250,000 or more, but less than
$350,000, the mandatory prepayment amount under this SECTION 3.03 shall
equal $300,000 PLUS interest accrued and unpaid on such amount).
(c) All mandatory prepayments hereunder shall be applied pro rata to
reduce the remaining installments on the Term Loans. Each mandatory
prepayment of Term Loans pursuant to this SECTION 3.03 shall be applied on
a pro rata basis first to Base Rate Advances outstanding under the Term
Loans to the full extent thereof before application to Fixed Rate Advances
outstanding thereunder. Mandatory reductions of the Total Commitments
shall be limited as set forth in SECTION 2.10(b) hereof.
Section 3.04 Use of Proceeds. The proceeds of the Term Loans will be
used by the Borrower to refund existing Debt outstanding pursuant to the
Former Credit Agreement on the Closing Date.
ARTICLE IV
GENERAL PAYMENT PROVISIONS
SECTION 4.01 FUNDING NOTICES.
(a) (i) Whenever the Borrower desires to make a Borrowing of Revolving
Loans with respect to the Revolving Loan Commitments (other than one
resulting from a conversion or continuation pursuant to SECTION 4.01(b)),
it shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of such Borrowing (a "Notice of
Revolving Borrowing"), such Notice of Revolving Borrowing to be given at
its Payment Office (x) prior to 12:00 noon (local time for the
Administrative Agent) on the date of such requested Borrowing in the case
of Base Rate Advances, and (y) prior to 2:00 p.m. (local time for the
Administrative Agent) three Business Days prior to the requested date of
such Borrowing in the case of Eurodollar Advances and Secondary C/D Rate
Advances. Notices received after the times set forth above shall be deemed
received on the next Business Day. Each Notice of Revolving Borrowing
shall be irrevocable and shall specify the aggregate principal amount of
the Borrowing, the date of Borrowing (which shall be a Business Day),
whether the Borrowing is to consist of Base Rate Advances, Secondary C/D
Rate Advances or Eurodollar Advances and (in the case of Fixed Rate
Advances) the Interest Period to be applicable thereto.
(ii) Whenever the Borrower desires to make a Swing Line Borrowing,
it shall give the Swing Line Lender (with a copy to the Administrative
Agent) prior written notice (or telephonic notice promptly confirmed in
writing) of such Swing Line Borrowing (each a "Swing Line Borrowing
Notice") prior to 2:00 p.m. (local time for the Swing Line Lender) on the
date of such Swing Line Borrowing. Each Swing Line Borrowing Notice shall
specify the aggregate principal amount of the Swing Line Borrowing, the
date of such Swing Line Borrowing (which shall be a Business Day), whether
a Cost of Funds Rate Quote is being requested and, if so, the Interest
Period to be applicable thereto. If the Borrower requests a Cost of Funds
Rate Quote as aforesaid, then prior to 2:00 p.m. (local time for the Swing
Line Lender) on such date, the Swing Line Lender shall furnish the Borrower
with a quotation of the interest rate being offered with respect to such
Swing Line Borrowing (whether expressed as a fixed rate of interest in
effect for the Interest Period applicable thereto or as a floating rate of
interest based on a specified interest rate index and applicable margin for
the Interest Period to be applicable thereto; in either case, a "Cost of
Funds Rate Quote") by telephone (promptly confirmed in writing) or by
facsimile transmission. The Borrower shall immediately inform the Swing
Line Lender of its decision as to whether to accept the Cost of Funds Rate
Quote and to confirm the Swing Line Borrowing (which may be done by
telephone, promptly confirmed in writing, and which decision shall be
irrevocable). If Borrower has so informed the Swing Line Lender and
confirmed the terms of the Swing Line Borrowing, then no later than 3:00
p.m. (local time for the Swing Line Lender) on such date, the Swing Line
Lender shall make the principal amount of the Swing Line Loan available to
the Borrower by crediting such amount to Borrower's demand deposit account
maintained with the Swing Line Lender. If no Cost of Funds Rate Quote is
requested or specified in the Notice of Swing Line Borrowing the Swing Line
Loan shall be made as a Base Rate Advance.
(iii) The Borrower shall notify the Administrative Agent at least
three (3) Business Days prior to the Closing Date of the Borrowings which
will comprise the Term Loans.
(b) Whenever the Borrower desires to convert all or a portion of an
outstanding Borrowing under the Revolving Loan Commitments or the Term
Loans consisting of Base Rate Advances into a Borrowing consisting of Fixed
Rate Advances or to convert all or a portion of an outstanding Borrowing
consisting of Fixed Rate Advances into another type of Fixed Rate Advances,
or to continue outstanding a Borrowing consisting of Fixed Rate Advances
for a new Interest Period, it shall give the Administrative Agent at least
three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each such Borrowing to be converted into or
continued as Fixed Rate Advances. Such notice (a "Notice of
Conversion/Continuation") shall be given prior to 2:00 p.m. (local time for
the Administrative Agent) on the date specified at the Payment Office of
the Administrative Agent. Each such Notice of Conversion/Continuation
shall be irrevocable and shall specify the aggregate principal amount of
the Advances to be converted or continued, the applicable type of Fixed
Rate Advances, the date of such conversion or continuation and the Interest
Period to be applicable thereto. If, upon the expiration of any Interest
Period in respect of any Borrowing consisting of Fixed Rate Advances, the
Borrower shall have failed to deliver the Notice of
Conversion/Continuation, the Borrower shall be deemed to have elected to
convert or continue such Borrowing to a Borrowing consisting of Base Rate
Advances. So long as any Default or Event of Default shall have occurred
and be continuing, no Borrowing may be converted into or continued as (upon
expiration of the current Interest Period) Fixed Rate Advances unless the
Administrative Agent and each of the Lenders shall have otherwise consented
in writing. No conversion of any Borrowing of Fixed Rate Advances shall be
permitted except on the last day of the Interest Period in respect thereof.
(c) Without in any way limiting the Borrower's obligation to confirm
in writing any telephonic notice, the Administrative Agent and the Swing
Line Lender may act without liability upon the basis of telephonic notice
believed by the Administrative Agent or the Swing Line Lender, as the case
may be, in good faith to be from the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to
dispute the Administrative Agent's or the Swing Line Lender's, as the case
may be, record of the terms of such telephonic notice.
(d) The Administrative Agent shall promptly (and in any event by the
same time on the next succeeding Business Day as such notice is received)
give (i) each Lender notice by telephone (confirmed in writing) or by
telex, telecopy or facsimile transmission of the matters covered by the
notices given to the Administrative Agent pursuant to this SECTION 4.01.
SECTION 4.02 DISBURSEMENT OF FUNDS.
(a) No later than 12:00 noon (local time for the Administrative Agent)
in the case of a Borrowing consisting of Fixed Rate Advances and no later
than 3:00 p.m. (local time for the Administrative Agent) in the case of a
Borrowing consisting of Base Rate Advances on the date of each Borrowing
pursuant to the Revolving Loan Commitments (other than one resulting from a
conversion or continuation pursuant to SECTION 4.01(b)), each Lender will
make available its Pro Rata Share of the amount of such Borrowing in
immediately available funds at the Payment Office of the Administrative
Agent. The Administrative Agent will make available to the Borrower the
aggregate of the amounts (if any) so made available by the Lenders to the
Administrative Agent in a timely manner by crediting such amounts to the
Borrower's demand deposit account maintained with the Administrative Agent
or at the Borrower's option, by effecting a wire transfer of such amounts
to the Borrower's account specified by the Borrower, by the close of
business on such Business Day. In the event that the Lenders do not make
such amounts available to the Administrative Agent by the time prescribed
above, but such amount is received later that day, such amount may be
credited to Borrower in the manner described in the preceding sentence on
the next Business Day (with interest on such amount to begin accruing
hereunder on such next Business Day).
(b) No later than 3:00 p.m. (local time for the Swing Line Lender) on
the date of each Swing Line Loan, the Swing Line Lender shall make
available to the Borrower the requested Swing Line Loan by crediting such
amounts to the Borrower's demand deposit account maintained with the
Administrative Agent or at the Borrower's option, by effecting a wire
transfer of such amounts to the Borrower's account specified by the
Borrower, by the close of business on such Business Day.
(c) On the Closing Date, each Lender will make available its Pro Rata
Share of the amount of the Term Loans in immediately available funds at the
Payment Office of the Administrative Agent by 2:00 p.m. (local time for the
Administrative Agent). The Administrative Agent will make available to the
Borrower the aggregate of the amounts (if any) so made available by the
Lenders to the Administrative Agent in a timely manner by crediting such
amounts to the Borrower in accordance with its written instructions by the
close of business on such Business Day. In the event that the Lenders do
not make such amounts available to the Administrative Agent by the time
prescribed above, but such amount is received later that day, such amount
may be credited to the Borrower in the manner described in the preceding
sentence on the next Business Day (with interest on such amount to begin
accruing hereunder on such next Business Day).
(d) Unless the Administrative Agent shall have been notified by any
Lender prior to the date of a Borrowing that such Lender does not intend to
make available to the Administrative Agent such Lender's portion of the
Borrowing to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on
such date and the Administrative Agent may make available to Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at
the Federal Funds Rate. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agent's demand therefor, the
Administrative Agent shall promptly notify Borrower, and Borrower shall
immediately pay such corresponding amount to the Administrative Agent
together with interest at the rate specified for the Borrowing which
includes such amount paid and any amounts due under SECTION 4.12 hereof.
Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Term Loan or Revolving Loan Commitment hereunder or
to prejudice any rights which Borrower may have against any Lender as a
result of any default by such Lender hereunder.
(e) All Borrowings under the Revolving Loan Commitments and the Term
Loans shall be loaned by the Lenders on the basis of their Pro Rata Share
on the date of such Borrowing. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender
shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fund its Pro Rata Share of
any Borrowing hereunder.
SECTION 4.03 INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Revolving Loans and the Term Loans from the respective dates
such principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at rates per annum equal to the
applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect from time to
time;
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate PLUS
the Applicable Margin; and
(iii) For Secondary C/D Rate Advances-- The relevant Secondary C/D
Rate PLUS the Applicable Margin.
(b) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Swing Line Loans made to Borrower from the respective dates
such principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at rates per annum equal to the
applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in effect on each day that
the Swing Line Loan is outstanding; and
(ii) For Cost of Funds Rate Advances--The relevant Cost of Funds
Rate for such Interest Period.
(c) Overdue principal and, to the extent not prohibited by applicable
law, overdue interest, in respect of the Revolving Loans, Swing Line Loans
and Term Loans, and all other overdue amounts owing hereunder, shall bear
interest from each date that such amounts are overdue:
(i) in the case of overdue principal and interest with respect to
all Loans outstanding as Fixed Rate Advances, at the rate applicable for
the then-current Interest Period PLUS an additional two percent (2.0%) per
annum and, following the termination of such Interest Period, at the rate
in effect for Base Rate Advances PLUS an additional two percent (2.0%) per
annum; and
(ii) in the case of overdue principal and interest with respect to
all other Loans outstanding as Base Rate Advances and all other Obligations
hereunder (other than Loans), at the rate in effect for Base Rate Advances
PLUS an additional two percent (2.0%) per annum.
(d) Interest on each Loan shall accrue from and including the date of
such Loan to but excluding the date of any repayment thereof; PROVIDED
that, if a Loan is repaid on the same day made, one day's interest shall be
paid on such Loan. Interest on all outstanding Base Rate Advances shall be
payable quarterly in arrears on the last day of each calendar quarter,
commencing on June 30, 1998. Interest on all outstanding Fixed Rate
Advances shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of Fixed Rate Advances having an
Interest Period in excess of three months, on each three month anniversary
of the initial date of such Interest Period. Interest on all Loans shall
be payable on any conversion of any Advances comprising such Loans into
Advances of another Type, prepayment (on the amount prepaid), at maturity
(whether by acceleration, notice of prepayment or otherwise) and, after
maturity, on demand.
(e) The Administrative Agent, upon determining the Adjusted LIBO Rate
or Secondary C/D Rate for any Interest Period, shall promptly notify by
telephone (confirmed in writing) or in writing the Borrower and the
Lenders. Any such determination shall, absent manifest error, be final,
conclusive and binding for all purposes.
SECTION 4.04 INTEREST PERIODS.
(a) In connection with the making or continuation of, or conversion
into, each Borrowing of Eurodollar Advances, the Borrower shall select an
Interest Period to be applicable to such Eurodollar Advances, which
Interest Period shall be either a 1, 2, 3 or 6 month period.
(b) In connection with the making or continuation of, or conversion
into, each Borrowing of Secondary C/D Rate Advances, the Borrower shall
select an Interest Period to be applicable to such Secondary C/D Rate
Advances, which Interest Period shall be either a 30, 60, 90 or 180 days
period.
(c) In connection with the submission of each Cost of Funds Rate
Request, the requesting Borrower may select an Interest Period to be
applicable to such Swing Line Loan not to exceed fifteen (15) days.
(d) Notwithstanding paragraphs (a), (b) and (c) of this SECTION 4.04:
(i) The initial Interest Period for any Borrowing of Fixed Rate
Advances shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing consisting of Base Rate Advances) and
each Interest Period occurring thereafter in respect of such Borrowing
shall commence on the day on which the next preceding Interest Period
expires;
(ii) If any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, PROVIDED that if any Interest Period in respect of
Eurodollar Advances would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall, subject to part
(iv) and (v) below, expire on the last Business Day of such calendar month;
(iv) No Interest Period with respect to the Revolving Loans or the
Swing Line Loans shall extend beyond the Revolving Loan Termination Date;
and
(v) No Interest Period with respect to the Term Loans shall extend
beyond the Maturity Date nor shall any Interest Period with respect to the
Term Loans extend beyond any Mandatory Reduction Date, unless the amount of
the Term Loans outstanding as Base Rate Advances or Fixed Rate Advances
with Interest Periods maturing prior to such Mandatory Reduction Date
exceeds the scheduled principal reduction of the Term Loans due on such
date.
SECTION 4.05 FEES.
(a) The Borrower shall pay to the Administrative Agent, for the
ratable benefit of each Lender based upon its respective Pro Rata Share of
the Revolving Loan Commitments, a commitment fee (the "Revolving Loan
Commitment Fee") for the period commencing on the Closing Date to and
including the Revolving Loan Termination Date, payable quarterly in arrears
on the last day of each calendar quarter, commencing on June 30, 1998, and
on the Revolving Loan Termination Date, equal to the Applicable Commitment
Fee Percentage multiplied by the average daily amount of the unused
Revolving Loan Commitments (with the express understanding that the Letter
of Credit Obligations and the Masland Bond Exposure shall be deemed to be
utilizations of the Revolving Loan Commitments but the Swing Line Loans
shall not be deemed to be an utilization of the Revolving Loan
Commitments).
(b) The Borrower shall pay to the Administrative Agent, for the
account of itself and the Lenders, a letter of credit fee equal to the
Applicable Margin for Eurodollar Advances outstanding pursuant to the
Revolving Loan Commitments multiplied by the average daily aggregate
Letter of Credit Obligations MINUS the Stated Amount of the Xxxxx Letter of
Credit (the "Letter of Credit Fee"). The Letter of Credit Fee shall be
payable by the Borrower quarterly, in arrears, commencing on June 30, 1998
and continuing thereafter on the last day of each succeeding calendar
quarter and on the Revolving Loan Termination Date.
(c) With respect to the Xxxxx Letter of Credit, the Borrower shall pay
to the Administrative Agent the fee to be paid to SunTrust pursuant to
Section 1(b) of the Xxxxx Reimbursement Agreement, and from such amount,
the Administrative Agent shall pay to the Lenders, a letter of credit fee
which is equal to the Applicable Margin for Eurodollar Advances outstanding
pursuant to the Revolving Loan Commitments multiplied by the Stated Amount
of the Xxxxx Letter of Credit (the "Bond Letter of Credit Fee") and shall
retain for its own account the remainder of any fees paid under the Xxxxx
Reimbursement Agreement. The Bond Letter of Credit Fee shall be payable by
the Borrower quarterly, in arrears, commencing on June 30, 1998 and
continuing thereafter on the last day of each succeeding calendar quarter
and on the Revolving Loan Termination Date (or such earlier date on which
the Xxxxx Letter of Credit or the Lenders' participation therein shall be
terminated). Nothing set forth in this Agreement shall be deemed to have
relieved the Borrower from its obligations pursuant to the Xxxxx
Reimbursement Agreement.
(d) Borrower shall pay to the Administrative Agent such other
administrative fees in the respective amounts and on the dates as agreed in
writing by the Borrower with the Administrative Agent.
SECTION 4.06 VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) The Borrower may, at its option, prepay Borrowings consisting of
Base Rate Advances outstanding as Revolving Loans at any time in whole, or
from time to time in part, in amounts aggregating $1,000,000 or any greater
integral multiple of $1,000,000, by paying the principal amount to be
prepaid together with interest accrued and unpaid thereon to the date of
prepayment. Borrowings consisting of Fixed Rate Advances may be prepaid,
at the Borrower's option, in whole, or from time to time in part, in
amounts aggregating $5,000,000 or any greater integral multiple of
$1,000,000, by paying the principal amount to be prepaid, together with
interest accrued and unpaid thereon to the date of prepayment, and all
compensation payments pursuant to SECTION 4.12 if such prepayment is made
on a date other than the last day of an Interest Period applicable thereto.
The Borrower may, at its option, prepay Borrowings consisting of Base Rate
Advances outstanding as Swing Line Loans at any time in whole, or from time
to time in part, in amounts aggregating $25,000 or any greater integral
multiple of $1,000, by paying the principal amount to be prepaid together
with interest accrued and unpaid thereon to the date of prepayment.
Borrowings consisting of Cost of Funds Rate Advances may be prepaid, at the
Borrower's option, in whole, or from time to time in part, in amounts
aggregating $100,000 or any greater integral multiple of $10,000, by paying
the principal amount to be prepaid, together with interest accrued and
unpaid thereon to the date of prepayment, and all compensation payments
pursuant to SECTION 4.12 if such prepayment is made on a date other than
the last day of an Interest Period applicable thereto. Each such optional
prepayment shall be applied in accordance with SECTION 4.06(c) below.
(b) The Borrower shall give written notice (or telephonic notice
confirmed in writing) to the Administrative Agent of any intended
prepayment of the Loans (i) by 12:00 noon (local time for the
Administrative Agent) on the Business Day of any prepayment of Base Rate
Advances (or by 2:00 p.m (local time for the Administrative Agent in the
case of Base Rate Advances outstanding as Swing Line Loans) and (ii) by
12:00 noon (local time for the Administrative Agent) not less than three
(3) Business Days prior to any prepayment of Fixed Rate Advances. Such
notice, once given, shall be irrevocable. Upon receipt of such notice of
prepayment pursuant to the first sentence of this paragraph (b) with
respect to any prepayment of Revolving Loans or Term Loans, the
Administrative Agent shall promptly (and in any event by the same time on
the next succeeding Business Day as such notice is received) notify each
Lender of the contents of such notice and of such Lender's Pro Rata Share
(as determined pursuant to clause (ii) of such definition) of each of the
Loans subject to such prepayment.
(c) The Borrower, when providing notice of prepayment pursuant to
SECTION 4.06(b), may designate the Types of Advances and the specific
Borrowing or Borrowings which are to be prepaid, provided that (i) if any
prepayment of Eurodollar Advances or Secondary C/D Rate Advances made
pursuant to a single Borrowing of the Loans shall reduce the outstanding
Advances made pursuant to such Borrowing to an amount less than $5,000,000,
such Borrowing shall immediately be converted into Base Rate Advances; and
(ii) each prepayment made pursuant to a single Borrowing shall be applied
pro rata among the Loans comprising such Borrowing. In the absence of a
designation by the Borrower, the Administrative Agent or, with respect to
the Swing Line Loans, the Swing Line Lender, shall, subject to the
foregoing, make such designation in its discretion but using reasonable
efforts to avoid funding losses to the Lenders pursuant to SECTION 4.12.
All voluntary prepayments shall be applied to the payment of interest
before application to principal.
SECTION 4.07 PAYMENTS, ETC.
(a) All payments under this Agreement and the other Credit Documents,
unless otherwise specified, shall be made without defense, set-off or
counterclaim to the Administrative Agent not later than 12:00 noon (local
time for the Administrative Agent) on the date when due and shall be made
in Dollars in immediately available funds at the Administrative Agent's
Payment Office.
(b) (i) All such payments shall be made free and clear of and without
deduction or withholding for any Taxes in respect of this Agreement, the
Notes or other Credit Documents, or any payments of principal, interest,
fees or other amounts payable hereunder or thereunder (but excluding,
except as provided in paragraph (iii) hereof, any Taxes imposed on the
overall net income of the Lenders pursuant to the laws of (x) the United
States, (y) the jurisdiction in which such Lender is organized, or (z) the
jurisdiction in which the principal executive office or appropriate Lending
Office of such Lender is located). If the Borrower or other Person is
required by applicable law to make any deduction or withholding of any Tax,
the Borrower agrees (A) to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every net payment of all
amounts due hereunder and under the Notes and other Credit Documents, after
withholding or deduction for or on account of any such Taxes (including
additional sums payable under this SECTION 4.07), will not be less than the
full amount provided for herein had no such deduction or withholding been
required, (B) to make such withholding or deduction and (C) to pay the full
amount deducted to the relevant authority in accordance with applicable
law. The Borrower will furnish to the Administrative Agent and each
Lender, within 30 days after the date the payment of any Taxes is due
pursuant to applicable law, certified copies of tax receipts evidencing
such payment by Borrower. Borrower will indemnify and hold harmless the
Administrative Agent and each Lender and reimburse the Administrative Agent
and each Lender upon written request for the amount of any Taxes so levied
or imposed and paid by the Administrative Agent or Lender and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes were correctly or illegally
asserted. A certificate as to the amount of such payment by such Lender or
the Administrative Agent, absent manifest error, shall be final, conclusive
and binding for all purposes.
(ii) Each Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Borrower and the
Administrative Agent, prior to the time it becomes a Lender hereunder, two
copies of either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or any successor forms thereto (wherein such
Lender claims entitlement to complete exemption from or reduced rate of
U.S. Federal withholding tax on interest paid by Borrower hereunder) and to
provide to the Borrower and the Administrative Agent a new Form 4224 or
Form 1001 or any successor forms thereto if any previously delivered form
is found to be incomplete or incorrect in any material respect or upon the
obsolescence of any previously delivered form; PROVIDED, HOWEVER, that no
Lender shall be required to furnish a form under this paragraph (ii) after
the date that it becomes a Lender hereunder if it is not entitled to claim
an exemption from or a reduced rate of withholding under applicable law.
(iii) Borrower shall also reimburse the Administrative Agent and
each Lender, upon written request, for any Taxes imposed (including,
without limitation, Taxes imposed on the overall net income of the
Administrative Agent or Lender or its applicable Lending Office pursuant to
the laws of the jurisdiction in which the principal executive office or the
applicable Lending Office of the Administrative Agent or Lender is located)
as the Administrative Agent or Lender shall determine are payable by the
Administrative Agent or Lender in respect of amounts paid by or on behalf
of Borrower to or on behalf of the Administrative Agent or Lender pursuant
to paragraph (i) hereof.
(iv) Within sixty (60) days of the written request of Borrower, each
Lender shall execute and deliver such certificates, assignments of claims,
forms or other documents, which can be reasonably furnished consistent with
the facts and which are reasonably necessary to assist in applying for
refunds of Taxes remitted hereunder.
(v) To the extent that the payment of any Lender's Taxes by Borrower
gives rise from time to time to a Tax Benefit (as hereinafter defined) to
such Lender, such Lender shall pay to Borrower the amount of each such Tax
Benefit so recognized or received. The amount of each Tax Benefit and,
therefore, payment to Borrower will be determined from time to time by the
relevant Lender in its sole discretion, which determination shall be
binding and conclusive on all parties hereto. Each such payment will be
due and payable by such Lender to Borrower within a reasonable time after
the filing of the income tax return in which such Tax Benefit is recognized
or, in the case of any tax refund, after the refund is received; PROVIDED,
HOWEVER, if at any time thereafter such Lender is required to rescind such
Tax Benefit or such Tax Benefit is otherwise disallowed or nullified, the
Borrower shall promptly, after notice thereof from such Lender, repay to
Lender the amount of such Tax Benefit previously paid to the Borrower and
rescinded, disallowed or nullified. For purposes of this section, "Tax
Benefit" shall mean the amount by which any Lender's income tax liability
for the taxable period in question is reduced below what would have been
payable had the Borrower not been required to pay the Lender's Taxes. In
case of any dispute with respect to the amount of any payment, the Borrower
shall have no right to any offset or withholding of payments with respect
to future payments due to any Lender under this Agreement, the Notes, or
any other Credit Document.
(c) Subject to SECTION 4.04(d), whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not
a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the applicable rate during such
extension.
(d) All computations of interest and fees shall be made on the basis
of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed). Interest on Base Rate Advances shall be calculated based on the
Base Rate from and including the date of such Loan to but excluding the
date of the repayment or conversion thereof. Interest on Fixed Rate
Advances shall be calculated as to each Interest Period from and including
the first day thereof to but excluding the last day thereof. Each
determination by the Administrative Agent of an interest rate or fee
hereunder shall be made in good faith and, except for manifest error, shall
be final, conclusive and binding for all purposes.
(e) Payment by the Borrower to the Administrative Agent in accordance
with the terms of this Agreement shall, as to the Borrower, constitute
payment to the Lenders under this Agreement.
SECTION 4.08 INTEREST RATE NOT ASCERTAINABLE, ETC. In the event that
the Administrative Agent shall have determined (which determination shall
be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) that on any date for determining
the Adjusted LIBO Rate for any Interest Period, by reason of any changes
arising after the date of this Agreement affecting the London interbank
market, or the Administrative Agent's position in such market, adequate and
fair means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of Adjusted LIBO Rate, then, and
in any such event, the Administrative Agent shall forthwith give notice (by
telephone confirmed in writing) to the Borrower and to the Lenders, of such
determination and a summary of the basis for such determination. Until the
Administrative Agent notifies the Borrower that the circumstances giving
rise to the suspension described herein no longer exist, the obligations of
the Lenders to make or permit portions of the Revolving Loans and the Term
Loans to remain outstanding past the last day of the then current Interest
Periods as Eurodollar Advances shall be suspended, and such affected
Advances shall bear the same interest as Base Rate Advances.
SECTION 4.09 ILLEGALITY. Notwithstanding any other provision
contained in this Agreement, if any change in any applicable law,
regulation or directive, or in the interpretation or application thereof
shall make it unlawful or impractical for any Lender to make or maintain
its portion of any Eurodollar Borrowings or Secondary C/D Rate Borrowings
or to maintain Eurodollar deposits in the London interbank market, the
obligation of the Lenders hereunder to advance or maintain Eurodollar
Borrowings or Secondary C/D Rate Borrowings, as the case may be, shall
forthwith be canceled and the Borrower shall, if any Eurodollar Borrowings
or Secondary C/D Rate Borrowings are then outstanding, promptly upon
request from the Administrative Agent, either, at the option of the
Borrower, pay all such Eurodollar Borrowings or Secondary C/D Rate
Borrowings or convert such Eurodollar Borrowings or Secondary C/D Rate
Borrowings to Base Rate Borrowings. If any such payment or conversion of
Eurodollar Borrowings or Secondary C/D Rate Borrowings is made on a day
that is not the last day of the then current Interest Period applicable to
such Eurodollar Borrowings or Secondary C/D Rate Borrowings, the Borrower
shall promptly pay, upon demand of such Lender (with a copy of such demand
to the Administrative Agent) such amount or amounts as may be necessary to
compensate such Lender for any loss or expense sustained or incurred by
such Lender as a result of such payment or conversion. Each Lender shall
certify the amount of such loss or expense to the Borrower, and such
certification shall be conclusive absent manifest error.
SECTION 4.10 INCREASED COSTS. In the event that any change (other
than any change by way of imposition or increase of reserve requirements,
in the case of Eurodollar Borrowings, included in the definition of
Adjusted LIBO Rate or, in the case of Secondary C/D Rate Borrowings,
included in the C/D Reserve Percentage) in any applicable law, treaty or
governmental regulation, or in the interpretation or application thereof,
or compliance by any Lender with any guideline, request or directive
(whether or not having the force of law) from any central bank or other
U.S. or foreign financial, monetary or other governmental authority, shall:
(a) subject any Lender to any tax of any kind whatsoever with respect to
this Agreement, any Borrowing or Letter of Credit Obligation or change the
basis of taxation of payments to any Lender of principal, interest, fees or
any other amount payable hereunder (except for changes in the rate of tax
on the overall net income of any Lender); (b) impose, modify, or hold
applicable any reserve, special deposit, assessment or similar requirement
against assets held by, or deposits in or for the account of, advances or
loans by, or other credit extended by or committed to be extended by any
office of any Lender, including, without limitation, pursuant to Regulation
D of the Board of Governors of the Federal Reserve System; or (c) impose on
any Lender or on the London interbank market any other condition with
respect to this Agreement, the Notes, the Letter of Credit Obligations or
any Eurodollar Borrowing or Secondary C/D Rate Borrowing hereunder; and the
result of any of the foregoing is to increase the cost to any Lender of
making or committing to make, renewing or maintaining any Eurodollar
Borrowing or Secondary C/D Rate Borrowing or to reduce the amount of any
payment (whether of principal, interest or otherwise) in respect of any
Eurodollar Borrowing or Secondary C/D Rate Borrowing, THEN, IN ANY CASE,
the Borrower shall promptly pay from time to time, upon demand of such
Lender (with a copy of such demand to the Administrative Agent), such
additional amounts as will compensate such Lender for such additional cost
or such reduction, as the case may be. Each Lender shall certify the
amount of such reduced amount to the Borrower, and such certification shall
be conclusive absent manifest error.
SECTION 4.11 CAPITAL ADEQUACY. If, after the date of this Agreement,
the Lender shall have determined that the adoption, implementation of
phase-in of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by the Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the Lender's capital (whether on
this credit facility or otherwise) as a consequence of its obligations
hereunder to a level below that which the Lender could have achieved but
for such adoption, change or compliance (taking into consideration the
Lender's policies with respect to capital adequacy) by a material amount,
then from time to time, promptly upon demand by the Lender, the Borrower
shall pay the Lender such additional amount or amounts as will compensate
the Lender for such reduction. A certificate of the Lender claiming
compensation under this SECTION 4.11 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive absent
manifest error. In determining any such amount, the Lender may use any
reasonable averaging and attribution methods generally accepted in the
banking industry.
SECTION 4.12 FUNDING LOSSES. The Borrower shall compensate each
Lender, upon its written request to the Borrower (which request shall set
forth the basis for requesting such amounts in reasonable detail and which
request shall be made in good faith and, absent manifest error, shall be
final, conclusive and binding upon all of the parties hereto), for all
losses, expenses and liabilities (including, without limitation, any
interest paid by such Lender to lenders of funds borrowed by it to make or
carry its Fixed Rate Advances, in either case to the extent not recovered
by such Lender in connection with the re-employment of such funds and
including loss of anticipated profits), which the Lender may sustain: (i)
if for any reason (other than a default by such Lender) a borrowing of, or
conversion to or continuation of, Fixed Rate Advances to the Borrower does
not occur on the date specified therefor on the Closing Date or in a Notice
of Revolving Borrowing, Notice of Swing Line Loan or Notice of
Conversion/Continuation (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to SECTION
4.09) of any Fixed Rate Advances to Borrower occurs on a date which is not
the last day of an Interest Period applicable thereto, or (iii), if, for
any reason, the Borrower defaults in its obligation to repay its Fixed Rate
Advances when required by the terms of this Agreement.
SECTION 4.13 LENDING OFFICES.
Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of its
Fixed Rate Advances affected by the matters or circumstances described in
SECTIONS 4.07(b), 4.08, 4.09, 4.10 or 4.11 to reduce the liability of
Borrower or avoid the results provided thereunder, so long as such
designation is not disadvantageous to such Lender as reasonably determined
by such Lender, which determination shall be conclusive and binding on all
parties hereto. Nothing in this SECTION 4.13 shall affect or postpone any
of the obligations of Borrower or any right of any Lender provided
hereunder.
SECTION 4.14 ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR ADVANCES.
Calculation of all amounts payable to a Lender under this ARTICLE IV shall
be made as though that Lender had actually funded its relevant Eurodollar
Advances through the purchase of deposits in the relevant market bearing
interest at the rate applicable to such Eurodollar Advances in an amount
equal to the amount of the Eurodollar Advances and having a maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar Advances from an offshore office of that Lender to a domestic
office of that Lender in the United States of America; PROVIDED, HOWEVER,
that each Lender may fund each of its Eurodollar Advances in any manner it
sees fit and the foregoing assumption shall be used only for calculation of
amounts payable under this ARTICLE IV.
SECTION 4.15 APPORTIONMENT OF PAYMENTS. Aggregate principal and
interest payments in respect of Loans and payments in respect of the
Letters of Credit, Masland Bonds and Commitment Fees shall be apportioned
among all outstanding Commitments and Loans to which such payments relate,
proportionately to the Lenders' respective pro rata portions of such
Commitments and outstanding Loans. The Administrative Agent shall promptly
distribute to each Lender at its payment office specified by any Lender its
share of all such payments received by the Administrative Agent on the same
Business Day as such payment is deemed to be received by the Administrative
Agent.
SECTION 4.16 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment or reduction (including, without limitation, any amounts received
as adequate protection of a deposit treated as cash collateral under the
Bankruptcy Code) of the Obligations (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in excess of
its Pro Rata Share of payments or reductions on account of such obligations
obtained by all the Lenders (other than payments of principal, interest and
fees with respect to the Swing Line Loans which are payable solely to the
Swing Line Lender unless the other Lenders are participating therein), such
Lender shall forthwith (i) notify each of the other Lenders and
Administrative Agent of such receipt, and (ii) purchase from the other
Lenders such participations in the affected obligations as shall be
necessary to cause such purchasing Lender to share the excess payment or
reduction, net of costs incurred in connection therewith, ratably with each
of them, provided that if all or any portion of such excess payment or
reduction is thereafter recovered from such purchasing Lender or additional
costs are incurred, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery or such additional costs, but
without interest unless the Lender obligated to return such funds is
required to pay interest on such funds. Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this SECTION
4.16 may, to the fullest extent permitted by law, exercise all its rights
of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. Any payment received by the
Administrative Agent or any Lender following the occurrence and during the
continuation of an Event of Default shall be distributed pro rata amongst
the Lenders based upon the percentage obtained by dividing the Obligations
owing to each Lender by the total amount of Obligations on the date of
receipt of such payment, with such amounts to be applied to the outstanding
Obligations in accordance with the terms of this Agreement.
SECTION 4.17 INTEREST RATE ARRANGEMENTS. The Borrower may from time
to time enter into an Interest Rate Contract with respect to its Debt which
arrangement provides the Borrower effective fixed, maximum, and/or minimum
rates of interest with Persons and on terms satisfactory to the Borrower.
ARTICLE V
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to the Borrower
hereunder and to extend the Term Loans and the obligation of the
Administrative Agent to issue any Letters of Credit hereunder is subject to
the satisfaction of the following conditions:
SECTION 5.01 CONDITIONS PRECEDENT TO INITIAL ADVANCES AND LETTERS OF
CREDIT. At the time of the making by each Lender of its initial Advance
hereunder or the issuance of the initial Letter of Credit hereunder, all
obligations of the Borrower to the Administrative Agent or any Lender
incurred prior to the initial Advances or issuance of the initial Letter of
Credit (including, without limitation, the Borrower's obligation to
reimburse the fees and disbursements of counsel to the Administrative Agent
and any fees payable to the Administrative Agent or the Lenders on or prior
to such date) shall have been paid in full or shall be paid simultaneously
with such initial Advances or issuance of the initial Letter of Credit, and
the Administrative Agent shall have received the following, each dated as
of the date of the initial Advances or issuance of initial Letter of
Credit, in form and substance satisfactory to the Lenders and (except for
the Notes) in sufficient copies for each Lender:
(a) Duly executed counterparts of this Agreement;
(b) Duly completed Revolving Credit Notes payable to the order of each
Lender in the principal amount of each of such Lender's Revolving Loan
Commitment;
(c) Duly completed Term Notes payable to the order of each Lender in
the principal amount of each such Lender's Term Loan;
(d) Duly completed Swing Line Note payable to the order of the Swing
Line Lender in the principal amount of the Swing Line Subcommitment;
(e) A duly executed Subsidiary Guaranty Agreement from each of the
Material Subsidiaries of the Borrower;
(f) Copies of the organizational papers of each of the Credit Parties,
certified as true and correct by the Secretary of State of the State of
such Credit Party's incorporation, and certificates from the Secretaries of
State of the State of such Credit Party's incorporation and of those States
in which such Credit Party is legally required to qualify to transact
business as a foreign corporation, certifying such Credit Party's good
standing as a corporation in such States (provided that, in the case of any
Credit Party qualified to do business in more than three states, good
standing certificates shall only be required with respect to the three (or
in the case of the Borrower, five) states in which such Credit Party
receives the greatest percentage of its Net Income);
(g) Certified copies of the by-laws of each of the Credit Parties, of
resolutions of the Board of Directors of each Credit Party approving this
Agreement, the Notes and the other Credit Documents to which such Credit
Party is a party, and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to the Credit
Documents;
(h) A certificate of the Secretary or Assistant Secretary of each of
the Credit Parties certifying the names and true signatures of the officers
of such Credit Party authorized to execute this Agreement and the Notes and
the other Credit Documents to be delivered hereunder by such Credit Party;
(i) A favorable written opinion of Xxxx, Xxxxxxx & Xxxxxxxx, counsel
for the Credit Parties, substantially in the form of EXHIBIT F hereto, and
covering such additional matters relating to the transactions contemplated
hereby as the Required Lenders may reasonably request, addressed to the
Administrative Agent and the Lenders;
(j) A duly executed Ratification of the Xxxxx Guaranty in form and
substance satisfactory to the Lenders;
(k) Copies of all documents and instruments, including all consents,
authorizations and filings, required or advisable under any Requirement of
Law or by any Contractual Obligations of the Credit Parties, in connection
with the execution, delivery, performance, validity and enforceability of
the Credit Documents and the other documents to be executed and delivered
hereunder, and such consents, authorizations, filings and orders shall be
in full force and effect and all applicable waiting periods shall have
expired;
(l) Certified copies of each of the documents evidencing the
Subordinated Debt, including without limitation, a copy of the amendment to
the Subordinated Note Purchase Agreement authorizing the issuance of the
Subsidiary Guaranty Agreement and evidence satisfactory to the
Administrative Agent that all conditions to such issuance have been
fulfilled;
(m) A duly executed closing certificate from the Borrower
substantially in the form of EXHIBIT G hereto; and
(n) All corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all Credit
Documents and other documents incident thereto or delivered in connection
therewith shall be satisfactory in form and substance to each Lender.
SECTION 5.02 CONDITIONS PRECEDENT TO EACH ADVANCE AND LETTER OF
CREDIT. At the time of the making of each Advance and issuance of all
Letters of Credit (before as well as after giving effect to such Loans and
the proposed use of the proceeds thereof and the issuance of such Letters
of Credit) the following conditions shall have been satisfied or shall
exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein,
other than those relating to a specific date, shall be true and correct in
all material respects with the same effect as though such representations
and warranties had been made on and as of the date of such Loans or the
issuance of such Letter of Credit;
(c) since the date of the latest financial statements delivered by
Borrower pursuant to SECTION 7.07(a) hereof, there shall have been no
change which has had or could reasonably be expected to (x) result in a
covenant default or (y) the failure of the Borrower to make any payments
due under the Credit Documents (whether or not any notice with respect to
such change has been furnished to the Lenders pursuant to SECTION 7.07);
(d) there shall be no action or proceeding instituted or pending
before any court or other governmental authority or, to the knowledge of
the Borrower, threatened (i) which reasonably could be expected to (x)
result in a covenant default or (y) the failure of the Borrower to make any
payments due under the Credit Documents (whether or not any notice with
respect to such action or proceeding has been furnished to the Lenders
pursuant to SECTION 7.07);
(e) the Loans to be made and the use of proceeds thereof or the
issuance of such Letters of Credit shall not contravene, violate or
conflict with, or involve the Administrative Agents or any Lender in a
violation of, any law, rule, injunction, or regulation, or determination of
any court of law or other governmental authority applicable to the
Borrower; and
(g) The Administrative Agent shall have received such other documents
(including, without limitation, any necessary Federal Reserve Form U-1 or
other similar form required by the Margin Regulations) or legal opinions as
the Administrative Agent or any Lender may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent.
Each request for a Borrowing or issuance of a Letter of Credit and the
acceptance by the Borrower of the proceeds thereof shall constitute a
representation and warranty by the Borrower, as of the date of the Loans
comprising such Borrowing or the issuance of such Letter of Credit, that
the applicable conditions specified in SECTIONS 5.01 and 5.02 have been
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower, as to itself and each of its Subsidiaries represents and
warrants as follows:
SECTION 6.01 ORGANIZATIONAL EXISTENCE; COMPLIANCE WITH LAW. Each of
the Consolidated Companies is duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its organization, and each
of the Consolidated Companies has the corporate or other organizational
power and authority and the legal right to own and operate its property and
to conduct its business. Each of the Consolidated Companies has the
corporate or other organizational power and authority and the legal right
to own and operate its property and to conduct its business, (ii) is duly
qualified as a foreign corporation or other organization and in good
standing under the laws of each jurisdiction where its ownership of
property or the conduct of its business requires such qualification, and
(iii) is in compliance with all Requirements of Law, except where the
failure to have such power, authority and legal right as set forth in
clause (i), (b) the failure to be so qualified or in good standing as set
forth in clause (ii), or (c) the failure to comply with Requirements of Law
as set forth in clause (iii), would not reasonably be expected to have a
Materially Adverse Effect. The jurisdiction of incorporation or
organization, and the ownership of all issued and outstanding capital stock
or other equity interests, for each Subsidiary as of the date of this
Agreement is accurately described on SCHEDULE 6.01.
SECTION 6.02 ORGANIZATIONAL POWER; AUTHORIZATION. Each of the Credit
Parties has the corporate or other organizational power and authority to
make, deliver and perform the Credit Documents to which it is a party and
has taken all necessary corporate or other organizational action to
authorize the execution, delivery and performance of such Credit Documents.
No consent or authorization of, or filing with, any Person (including,
without limitation, any governmental authority), is required in connection
with the execution, delivery or performance by any Credit Party, or the
validity or enforceability against any Credit Party, of the Credit
Documents, other than such consents, authorizations or filings which have
been made or obtained.
SECTION 6.03 ENFORCEABLE OBLIGATIONS. This Agreement has been duly
executed and delivered, and each other Credit Document will be duly
executed and delivered, by the respective Credit Parties, and this
Agreement constitutes, and each other Credit Document when executed and
delivered will constitute, legal, valid and binding obligations of the
Credit Parties, respectively, enforceable against the Credit Parties in
accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
SECTION 6.04 NO LEGAL BAR. The execution, delivery and performance by
the Credit Parties of the Credit Documents will not violate any Requirement
of Law or cause a breach or default under any of their respective
Contractual Obligations.
SECTION 6.05 NO MATERIAL LITIGATION. Except as set forth on SCHEDULE
6.05 or in any notice furnished to the Lenders pursuant to SECTION 7.07(i)
at or prior to the respective times the representations and warranties set
forth in this SECTION 6.05 are made or deemed to be made hereunder, no
litigation, investigations or proceedings of or before any courts,
tribunals, arbitrators or governmental authorities are pending or, to the
knowledge of the Borrower, threatened by or against any of the Consolidated
Companies, or against any of their respective properties or revenues,
existing or future (a) with respect to any Credit Document, or any of the
transactions contemplated hereby or thereby, or (b) which, if adversely
determined, would reasonably be expected to (x) result in a breach of a
covenant hereunder or (y) the inability of the Borrower to make the
payments required under the Credit Documents as and when due.
SECTION 6.06 INVESTMENT COMPANY ACT, ETC. None of the Credit Parties
is an "investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the Investment
Company Act of 1940, as amended). None of the Credit Parties is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed, guarantee
such indebtedness, or pledge its assets to secure such indebtedness, as
contemplated hereby or by any other Credit Document.
SECTION 6.07 MARGIN REGULATIONS. No part of the proceeds of any of
the Loans will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable
Margin Regulations.
SECTION 6.08 COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) The Consolidated Companies have received no notices of claims or
potential liability under, and are in compliance with, all applicable
Environmental Laws, where such claims and liabilities under, and failures
to comply with, such statutes, regulations, rules, ordinances, laws or
licenses, would reasonably be expected to result in penalties, fines,
claims or other liabilities (including, without limitation, remediation
costs and expenses) to the Consolidated Companies in amounts in excess of
$1,500,000, either individually or in the aggregate, except as set forth on
SCHEDULE 6.08(a) or in any notice furnished to the Lenders pursuant to
SECTION 7.07(j) at or prior to the respective times the representations and
warranties set forth in this SECTION 6.08(a) are made or deemed to be made
hereunder.
(b) Except as set forth on SCHEDULE 6.08(b) or in any notice furnished
to the Lenders pursuant to SECTION 7.07(j) at or prior to the respective
times the representations and warranties set forth in this SECTION 6.08(b)
are made or deemed to be made hereunder, none of the Consolidated Companies
has received any notice of violation, or notice of any action, either
judicial or administrative, from any governmental authority (whether United
States or foreign) relating to the actual or alleged violation of any
Environmental Law, including, without limitation, any notice of any actual
or alleged spill, leak, or other release of any Hazardous Substance, waste
or hazardous waste by any Consolidated Company or its employees or agents,
or as to the existence of any contamination on any properties owned by any
Consolidated Company, where any such violation, spill, leak, release or
contamination would reasonably be expected to result in penalties, fines,
claims or other liabilities (including, without limitation, remediation
costs and expenses) to the Consolidated Companies in amounts in excess of
$1,500,000, either individually or in the aggregate; and
(c) The Consolidated Companies have obtained all necessary
governmental permits, licenses and approvals which are material to the
operations conducted on their respective properties, including without
limitation, all required material permits, licenses and approvals for (i)
the emission of air pollutants or contaminates, (ii) the treatment or
pretreatment and discharge of waste water or storm water, (iii) the
treatment, storage, disposal or generation of hazardous wastes, (iv) the
withdrawal and usage of ground water or surface water, and (v) the disposal
of solid wastes.
SECTION 6.09 INSURANCE. The Consolidated Companies currently maintain
insurance with respect to their respective properties and businesses, with
financially sound and reputable insurers, having coverages against losses
or damages of the kinds customarily insured against by reputable companies
in the same or similar businesses, such insurance being in amounts no less
than those amounts which are customary for such companies under similar
circumstances. The Consolidated Companies have paid all material amounts
of insurance premiums now due and owing with respect to such insurance
policies and coverages, and such policies and coverages are in full force
and effect.
SECTION 6.10 NO DEFAULT. None of the Consolidated Companies is in
default under or with respect to any Contractual Obligation in any respect
which has had or is reasonably expected to have a Materially Adverse
Effect.
SECTION 6.11 NO BURDENSOME RESTRICTIONS. Except as set forth on
SCHEDULE 6.11 or in any notice furnished to the Lenders pursuant to SECTION
7.07(p) at or prior to the respective times the representations and
warranties set forth in this SECTION 6.11 are made or deemed to be made
hereunder, none of the Consolidated Companies is a party to or bound by any
Contractual Obligation or Requirement of Law which has had or would
reasonably be expected to have a Materially Adverse Effect.
SECTION 6.12 TAXES. Except as set forth on SCHEDULE 6.12, each of the
Consolidated Companies have filed or caused to be filed all declarations,
reports and tax returns which are required to have been filed, and has paid
all taxes, custom duties, levies, charges and similar contributions
("taxes" in this SECTION 6.12) shown to be due and payable on said returns
or on any assessments made against it or its properties, and all other
taxes, fees or other charges imposed on it or any of its properties by any
governmental authority (other than those the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided in its
books); and no tax liens have been filed and, to the knowledge of Borrower,
no claims are being asserted with respect to any such taxes, fees or other
charges; excluding, however, for purposes of the foregoing portions of this
Section, tax returns not filed or taxes not paid where the aggregate amount
of taxes involved does not exceed $100,000 in the aggregate and the failure
to file such returns or pay such taxes has resulted from the Consolidated
Companies being without knowledge that the respective tax authorities are
claiming such taxes to be due.
SECTION 6.13 SUBSIDIARIES. Except as disclosed on SCHEDULE 6.01, on
the date of this Agreement, Borrower has no Subsidiaries and neither
Borrower nor any Subsidiary is a joint venture partner or general partner
in any partnership. After the date of this Agreement, except as disclosed
on SCHEDULE 6.13 or in any notice furnished pursuant to SECTION 7.07(q) at
or prior to the respective times the representations and warranties set
forth in this SECTION 6.13 are made or deemed to be made hereunder,
Borrower has no Material Subsidiaries.
SECTION 6.14 FINANCIAL STATEMENTS. The Borrower has furnished to the
Administrative Agent and the Lenders the audited consolidated balance sheet
of the Borrower and the Consolidated Companies as at December 27, 1997 and
the related consolidated statements of income, shareholders' equity and
cash flows for the 52-week period then ended, including in each case the
related schedules and notes. The foregoing financial statements fairly
present in all material respects the consolidated financial condition of
such Consolidated Companies as at the date thereof and results of
operations for such periods in conformity with GAAP consistently applied.
Such Consolidated Companies taken as a whole do not have any material
contingent obligations, contingent liabilities, or material liabilities for
known taxes, long-term leases or unusual forward or long-term commitments
required to be disclosed in accordance with GAAP which are not reflected in
the foregoing financial statements or the notes thereto. As of the Closing
Date, since December 27, 1997, there have been no changes with respect to
such Consolidated Companies which has had or would reasonably be expected
to have a Materially Adverse Effect.
SECTION 6.15 ERISA. Except as disclosed on SCHEDULE 6.15 or in any
notice furnished to the Lenders pursuant to SECTION 7.07(k) at or prior to
the respective times the representations and warranties set forth in this
SECTION 6.15 are made or deemed to be made hereunder:
(a) IDENTIFICATION OF PLANS. None of the Consolidated Companies nor
any of their respective ERISA Affiliates maintains or contributes to, or
has during the past six years maintained or contributed to, any Plan that
is subject to Title IV of ERISA;
(b) COMPLIANCE. Each Plan maintained by the Consolidated Companies
have at all times been maintained, by their terms and in operation, in
compliance with all applicable laws, and the Consolidated Companies have
not incurred and are not likely to incur any tax or penalty with respect to
any Plan of such Consolidated Company or any ERISA Affiliate thereof,
including without limitation, any tax or penalty under Title I or Title IV
of ERISA or under Chapter 43 of the Tax Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404, or 419 of the
Tax Code, where the failure to comply with such laws, and such taxes and
penalties, together with all other liabilities referred to in this SECTION
6.15 (taken as a whole), would in the aggregate have a Materially Adverse
Effect;
(c) LIABILITIES. The Consolidated Companies are subject to no
liabilities (including withdrawal liabilities) with respect to any Plans of
such Consolidated Companies or any of their ERISA Affiliates, including
without limitation, any liabilities arising from Titles I or IV of ERISA,
other than obligations to fund benefits under an ongoing Plan and to pay
current contributions, expenses and premiums with respect to such Plans
where such liabilities, together with all other liabilities referred to in
this SECTION 6.15 (taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(d) FUNDING. The Consolidated Companies and, with respect to any Plan
which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required
to be contributed under the terms of each Plan and applicable law, and (B)
required to be paid as expenses (including PBGC or other premiums) of each
Plan, where the failure to pay such amounts (when taken as a whole,
including any penalties attributable to such amounts) would have a
Materially Adverse Effect. No Plan subject to Title IV of ERISA has an
"amount of unfunded benefit liabilities" (as defined in Section 4001(a)(18)
of ERISA), determined as if such Plan terminated on any date on which this
representation and warranty is deemed made, in any amount which, together
with all other liabilities referred to in this SECTION 6.15 (taken as a
whole), would have a Materially Adverse Effect if such amount were then due
and payable. The Consolidated Companies are subject to no liabilities with
respect to post-retirement medical benefits in any amounts which, together
with all other liabilities referred to in this SECTION 6.15 (taken as a
whole), would have a Materially Adverse Effect if such amounts were then
due and payable.
SECTION 6.16 PATENTS, TRADEMARKS, LICENSES, ETC. Except as set forth
on SCHEDULE 6.16 or in any notice furnished to the Lenders pursuant to
SECTION 7.07(p) at or prior to the respective times the representations and
warranties set forth in this SECTION 6.16 are made or deemed to be made
hereunder, (i) the Consolidated Companies have obtained and hold in full
force and effect all material patents, trademarks, service marks, trade
names, copyrights, licenses and other such rights, free from burdensome
restrictions, which are necessary for the operation of their respective
businesses as presently conducted, and (ii) to the best of the Borrower'
knowledge, no product, process, method, service or other item presently
sold by or employed by any Consolidated Company in connection with such
business infringes any patents, trademark, service xxxx, trade name,
copyright, license or other right owned by any other person and there is
not presently pending, or to the knowledge of the Borrower, threatened, any
claim or litigation against or affecting any Consolidated Company
contesting such Person's right to sell or use any such product, process,
method, substance or other item where the result of such failure to obtain
and hold such benefits or such infringement would have a Materially Adverse
Effect.
SECTION 6.17 OWNERSHIP OF PROPERTY. Each Consolidated Company has
good and marketable fee simple title to or a valid leasehold interest in
all of its real property and good title to, or a valid leasehold interest
in, all of its other property, as such properties are reflected in the
consolidated balance sheets referred to in SECTION 6.14, other than
properties disposed of in the ordinary course of business since such date
or as otherwise permitted by the terms of this Agreement, subject to no
Lien or title defect of any kind, except Liens permitted hereby and title
defects not constituting material impairments in the intended use for such
properties. The Consolidated Companies enjoy peaceful and undisturbed
possession under all of their respective leases.
SECTION 6.18 DEBT. As of the Closing Date, except for the Debt
outstanding pursuant to the Existing Credit Agreement to be repaid in full
or the Closing Date, and as set forth on SCHEDULE 6.18, none of the
Consolidated Companies is an obligor in respect of any Debt for borrowed
money, or any commitment to create or incur any Debt for borrowed money, in
an amount not less than $100,000 in any single case, and such Debt and
commitments for amounts less than $100,000 do not exceed $500,000 in the
aggregate for all such Debt and commitments of the Consolidated Companies.
SECTION 6.19 FINANCIAL CONDITION. On the Closing Date and after
giving effect to the use of the proceeds of the Term Loans, the Revolving
Loans as provided in ARTICLES II and III (i) assets of each Credit Party at
fair valuation and based on their present fair saleable value (including,
without limitation, the fair and realistic value of (x) any contribution or
subrogation rights in respect of any Guaranty Agreement given by such
Credit Party, and (y) any Intercompany Advances owed to such Credit Party)
will exceed such Credit Party's debts, including contingent liabilities (as
such liabilities may be limited under the express terms of any Guaranty
Agreement of such Credit Party), (ii) the remaining capital of such Credit
Party will not be unreasonably small to conduct the Credit Party's
business, and (iii) such Credit Party will not have incurred debts, or have
intended to incur debts, beyond the Credit Party's ability to pay such
debts as they mature. For purposes of this SECTION 6.19, "debt" means any
liability on a claim, and "claim" means (a) the right to payment, whether
or not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured, or (b) the right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or unsecured.
SECTION 6.20 INTERCOMPANY ADVANCES. On the Closing Date, except as
set forth on SCHEDULE 6.20 (or made in the ordinary course of business
since the date of such Schedule), there are no Intercompany Advances
outstanding. The Intercompany Advances have been duly authorized and
approved by all necessary corporate and shareholder action on the part of
the parties thereto, and constitute the legal, valid and binding
obligations of the parties thereto, enforceable against each of them in
accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditors' rights generally, and by general principles of
equity.
SECTION 6.21 LABOR MATTERS. Except as set forth in SCHEDULE 6.21 or
in any notice furnished to the Lenders pursuant to SECTION 7.07(p) at or
prior to the respective times the representations and warranties set forth
in this SECTION 6.21 are made or deemed to be made hereunder, the
Consolidated Companies have experienced no strikes, labor disputes, slow
downs or work stoppages due to labor disagreements which have had, or would
reasonably be expected to have, a Materially Adverse Effect, and, to the
best knowledge of the Borrower, there are no such strikes, disputes, slow
downs or work stoppages threatened against any Consolidated Company. The
hours worked and payment made to employees of the Consolidated Companies
have not been in violation in any material respect of the Fair Labor
Standards Act or any other applicable law dealing with such matters. All
payments due from the Consolidated Companies, or for which any claim may be
made against the Consolidated Companies, on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued
as liabilities on the books of the Consolidated Companies where the failure
to pay or accrue such liabilities would reasonably be expected to have a
Materially Adverse Effect.
SECTION 6.22 PAYMENT OR DIVIDEND RESTRICTIONS. Except as set forth in
SECTION 8.12 or described on SCHEDULE 6.22, none of the Consolidated
Companies is party to or subject to any agreement or understanding
restricting or limiting the payment of any dividends or other distributions
by any such Consolidated Company.
SECTION 6.23 OBLIGATIONS CONSTITUTE SENIOR DEBT. All of the
Obligations outstanding pursuant to this Agreement and the Xxxxx
Reimbursement Agreement and the Parent Guaranty constitute senior debt
pursuant to the terms of the Subordinated Debt of the Consolidated
Companies.
SECTION 6.24 DISCLOSURE. No representation or warranty contained in
this Agreement (including the Schedules attached hereto) or in any other
document furnished from time to time pursuant to the terms of this
Agreement, contains or will contain any untrue statement of a material fact
or omits or will omit to state any material fact necessary to make the
statements herein or therein not misleading as of the date made or deemed
to be made. Except as may be set forth herein (including the Schedules
attached hereto) or in any notice furnished to the Lenders pursuant to
SECTION 7.07 at or prior to the respective times the representations and
warranties set forth in this SECTION 6.24 are made or deemed to be made
hereunder, there is no fact known to the Borrower which has had, or is
reasonably expected to have, a Materially Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Obligations shall remain unpaid or any Lender shall
have any Commitment hereunder, the Borrower will, unless the Required
Lenders shall otherwise consent in writing:
SECTION 7.01 ORGANIZATIONAL EXISTENCE, ETC. Preserve and maintain,
and, except as expressly permitted by the terms of this Agreement, cause
each of its Subsidiaries to preserve and maintain, its corporate or other
organizational existence, its material rights, franchises, and licenses,
and its material patents and copyrights (for the scheduled duration
thereof), trademarks, trade names, and service marks, necessary or
desirable in the normal conduct of its business, and its qualification to
do business as a foreign corporation or other organization in all
jurisdictions where it conducts business or other activities making such
qualification necessary, where the failure to be so qualified would
reasonably be expected to have a Materially Adverse Effect.
SECTION 7.02 COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply with all Requirements of Law (including, without
limitation, the Environmental Laws subject to the exception set forth in
SECTION 6.08(a) where the penalties, claims, fines, and other liabilities
resulting from noncompliance with such Environmental Laws do not involve
amounts in excess of $1,500,000 in the aggregate) and Contractual
Obligations applicable to or binding on any of them where the failure to
comply with such Requirements of Law and Contractual Obligations would
reasonably be expected to have a Materially Adverse Effect.
SECTION 7.03 PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and cause each of
its Subsidiaries to pay, (i) all taxes, assessments and governmental
charges imposed upon it or upon its property, and (ii) all claims
(including, without limitation, claims for labor, materials, supplies or
services) which might, if unpaid, become a Lien upon its property, unless,
in each case, the validity or amount thereof is being contested in good
faith by appropriate proceedings and adequate reserves are maintained with
respect thereto in accordance with GAAP.
SECTION 7.04 KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing
complete and accurate entries of all their respective financial and
business transactions which are required to be maintained in order to
prepare the consolidated financial statements of Borrower in conformity
with GAAP.
SECTION 7.05 VISITATION, INSPECTION, ETC. Permit, and cause each of
its Subsidiaries to permit, any representative of the Administrative Agent
or any Lender to visit and inspect any of its property, to examine its
books and records and to make copies and take extracts therefrom, and to
discuss its affairs, finances and accounts with its officers, all at such
reasonable times and as often as such Administrative Agent or Lender may
reasonably request after reasonable prior notice to Borrower; PROVIDED,
HOWEVER, that at any time following the occurrence and during the
continuance of a Default or an Event of Default, no prior notice to
Borrower shall be required and FURTHER PROVIDED that the Administrative
Agent and Lenders shall be bound by the provisions of SECTION 11.08 in
connection with the exercise of their rights pursuant to this SECTION 7.05.
SECTION 7.06 INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially sound and
reputable insurers, insurance with respect to its properties and business,
and the properties and business of its Subsidiaries, against loss or damage
of the kinds customarily insured against by reputable companies in the same
or similar businesses, such insurance to be of such types and in such
amounts as is customary for such companies under similar circumstances.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall prevent
Borrower from discontinuing the operation or maintenance of any such
properties if such discontinuance is, in the judgment of Borrower,
desirable in the conduct of its business or the business of any
Consolidated Company.
SECTION 7.07 REPORTING COVENANTS. Furnish to each Lender:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 95 days after the end of each fiscal year of Borrower, balance
sheets of the Consolidated Companies as at the end of such year, presented
on a consolidated and a consolidating basis, and the related statements of
income, shareholders' equity, and cash flows of the Consolidated Companies
for such fiscal year, presented on a consolidated and a consolidating
basis, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and, except with respect to
the financial statements prepared on a consolidating basis, accompanied by
a report thereon of Ernst & Young LLP or other independent public
accountants of comparable recognized national standing, which such report
shall be unqualified as to going concern and scope of audit and shall state
that such financial statements present fairly in all material respects the
financial condition as at the end of such fiscal year on a consolidated
basis, and the results of operations and statements of cash flows of the
Consolidated Companies for such fiscal year in accordance with GAAP and
that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards; PROVIDED, HOWEVER, that this
subsection (a) shall be deemed satisfied by the delivery of Borrower's
Annual Report on Form 10K as filed with the Securities Exchange Commission
delivered in the time allotted above;
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 50 days after the end of each fiscal quarter of Borrower
(other than the fourth fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a consolidated and a
consolidating basis and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal
quarter and for the portion of Borrower's fiscal year ended at the end of
such quarter, presented on a consolidated and a consolidating basis setting
forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower's previous fiscal year,
all in reasonable detail and certified by a Financial Officer of Borrower
that such financial statements fairly present in all material respects the
financial condition of the Consolidated Companies as at the end of such
fiscal quarter on a consolidated and consolidating basis, and the results
of operations and statements of cash flows of the Consolidated Companies
for such fiscal quarter and such portion of Borrower's fiscal year, in
accordance with GAAP consistently applied (subject to normal year-end audit
adjustments and the absence of certain footnotes); PROVIDED, HOWEVER, that
this subsection (b) shall be deemed satisfied by the delivery of Borrower's
Quarterly Report on Form 10Q as filed with the Securities Exchange
Commission delivered in the time allotted above;
(c) NO DEFAULT/COMPLIANCE CERTIFICATE. Together with the financial
statements required pursuant to subsections (a) and (b) above, a
certificate of a Financial Officer of Borrower (i) to the effect that,
based upon a review of the activities of the Consolidated Companies and
such financial statements during the period covered thereby, there exists
no Event of Default and no Default under this Agreement, or if there exists
an Event of Default or a Default hereunder, specifying the nature thereof
and the proposed response thereto, and (ii) demonstrating in reasonable
detail compliance as at the end of such fiscal year or such fiscal quarter
with SECTIONS 8.01 through 8.04, 8.06, 8.07, 8.11 and 8.12;
(d) AUDITOR'S NO DEFAULT CERTIFICATE. Together with the financial
statements required pursuant to subsection (a) above, a certificate of the
accountants who prepared the report referred to therein, stating whether
anything has come to its attention to cause it to believe that there
existed on the date of such statements any Default or Event of Default;
(e) AMENDMENTS TO SUBORDINATED DEBT; MASLAND BONDS OR XXXXX XXXXX.
Promptly after the occurrence thereof, copies of executed amendments,
modifications or waivers with respect to the Senior Subordinated Note
Agreement or the notes issued pursuant thereto, or the Subordinated
Convertible Debentures or the indenture executed in connection therewith,
the Masland Bonds or the Xxxxx Xxxxx;
(f) ANNUAL BUDGET. By no later than December 31st of each calendar
year, a budget, together with a projected balance sheet and income
statement of the Borrower and its Subsidiaries for the upcoming fiscal
year, certified by a Financial Officer of the Borrower;
(g) NOTICE OF DEFAULT. Promptly after any officer of Borrower has
notice or knowledge of the occurrence of an Event of Default or a Default,
a certificate of a Financial Officer of Borrower specifying the nature
thereof and the proposed response thereto;
(h) ASSET DISPOSITIONS. Together with the financial statements
required pursuant to subsection (a) above, a certificate of a Financial
Officer of Borrower reporting all Asset Dispositions effected by the
Consolidated Companies during the fiscal year covered by such financial
statements which involved Asset Values in excess of $1,000,000 in any
single transaction or related series of transactions, including the Asset
Book Value and the Asset Fair Market Value of such assets and the amounts
received by the Consolidated Companies with respect to such sales, and such
other information regarding such transactions as any Agent or Lender may
reasonably request;
(i) LITIGATION. Promptly after (i) the occurrence thereof, notice of
the institution of or any material adverse development in any material
action, suit or proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against any Consolidated Company,
or any material property of any thereof, or (ii) actual knowledge thereof,
notice of the threat of any such action, suit, proceeding, investigation or
arbitration in either case, involving an aggregate amount in excess of
$1,500,000 or which would otherwise reasonably be expected to have a
Materially Adverse Effect;
(j) ENVIRONMENTAL NOTICES. Promptly after receipt thereof, notice of
any actual or alleged violation, or notice of any action, claim or request
for information, either judicial or administrative, from any governmental
authority relating to any actual or alleged claim, notice of potential
responsibility under or violation of any Environmental Law, or any actual
or alleged spill, leak, disposal or other release of any waste, petroleum
product, or hazardous waste or Hazardous Substance by any Consolidated
Company which could result in penalties, fines, claims or other liabilities
to any Consolidated Company in amounts in excess of $1,500,000;
(k) ERISA.
(i) Promptly after any Consolidated Company has knowledge of the
occurrence thereof with respect to any Plan of any Consolidated Company or
any ERISA Affiliate thereof, or any trust established thereunder, notice of
(A) a "reportable event" described in Section 4043 of ERISA and the
regulations issued from time to time thereunder (other than a "reportable
event" not subject to the provisions for 30-day notice to the PBGC under
such regulations), or (B) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404 or 419 of the
Tax Code, where any such taxes, penalties or liabilities exceed or could
exceed $1,500,000 in the aggregate;
(ii) Promptly after such notice must be provided to the PBGC, or to
a Plan participant, beneficiary or alternative payee, any notice required
under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A)
of ERISA or under Section 401(a)(29) or 412 of the Tax Code with respect to
any Plan of any Consolidated Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by any
Consolidated Company or any ERISA Affiliate thereof concerning the intent
of the PBGC or any other governmental authority to terminate a Plan of such
Company or ERISA Affiliate thereof which is subject to Title IV of ERISA,
to impose any liability on such Company or ERISA Affiliate under Title IV
of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Administrative Agent, promptly upon the
filing thereof with the Internal Revenue Service ("IRS") or the Department
of Labor ("DOL"), a copy of IRS Form 5500 or annual report for each Plan of
any Consolidated Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA;
(v) Upon the request of the Administrative Agent, (A) true and
complete copies of any and all documents, government reports and IRS
determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports filed with
the IRS, PBGC or DOL with respect to a Plan of the Consolidated Companies
or any ERISA Affiliate thereof, or (C) a current statement of withdrawal
liability for each Multiemployer Plan of any Consolidated Company or any
ERISA Affiliate thereof;
(l) LIENS. Promptly upon any Consolidated Company becoming aware
thereof, notice of the filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by SECTION 8.01;
(m) DOMESTICATION OF SUBSIDIARIES. Not less than 30 days prior
thereto, notice of any intended domestication of any foreign Subsidiary as
a United States corporation, whether by merger, stock transfer or
otherwise;
(n) PUBLIC FILINGS, ETC. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements, annual,
quarterly and special reports, proxy statements and notices sent or made
available generally by Borrower to its public security holders, of all
regular and periodic reports and all registration statements and
prospectuses, if any, filed by any of them with any securities exchange,
and of all press releases and other statements made available generally to
the public containing material developments in the business or financial
condition of Borrower and the other Consolidated Companies;
(o) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof, copies of
all financial statements of, and all reports submitted by, independent
public accountants to Borrower in connection with each annual, interim, or
special audit of Borrower's financial statements and solely to the extent
related to such financial statements, including without limitation, the
comment letter submitted by such accountants to management in connection
with their annual audit;
(p) BURDENSOME RESTRICTIONS, ETC. Promptly upon the existence or
occurrence thereof, notice of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law described in SECTION 6.11,
(ii) failure of any Consolidated Company to hold in full force and effect
those trademarks, service marks, patents, trade names, copyrights, licenses
and similar rights necessary in the normal conduct of its business, the
loss or absence of which could have a Materially Adverse Effect, and (iii)
any strike, labor dispute, slow down or work stoppage as described in
SECTION 6.21;
(q) NEW MATERIAL SUBSIDIARIES. Within 30 days after the formation or
acquisition of any Material Subsidiary, or any other event resulting in the
creation of a new Material Subsidiary, notice of the formation or
acquisition of such Material Subsidiary or such occurrence, including a
description of the assets of such entity, the activities in which it will
be engaged, and such other information as the Administrative Agent may
request;
(s) ACQUISITIONS. In connection with any Acquisition in excess of
$5,000,000, prompt notice of such Acquisition and a summary of the terms
thereof;
(t) DEEMED DEBT. In connection with the consummation of, or any
material amendment to, any off-balance sheet financing transaction
resulting in the creation of Deemed Debt, a summary of the terms of such
transaction and a calculation of the Deemed Debt resulting therefrom; and
(u) OTHER INFORMATION. With reasonable promptness, such other
information about the Consolidated Companies as any Agent or Lender may
reasonably request from time to time.
SECTION 7.08 COMPLIANCE WITH CONTRACTUAL OBLIGATIONS. Comply with its
Contractual Obligations except where the failure to comply would not
reasonably be expected to have a Materially Adverse Effect.
SECTION 7.09 ADDITIONAL CREDIT PARTIES. Promptly after (i) the
formation or acquisition (provided that nothing in this Section shall be
deemed to authorize the acquisition or formation of any entity) of any
Material Subsidiary, (ii) the transfer of assets to any Consolidated
Company if as a result thereof the recipient of such assets becomes a
Material Subsidiary, or (iii) the occurrence of any other event creating a
new Material Subsidiary, Borrower shall execute and deliver, and cause to
be executed and delivered a Subsidiary Guaranty Agreement from each such
Material Subsidiary, together with related documents evidencing the due
authorization, execution and delivery of such Subsidiary Guaranty Agreement
and the enforceability thereof, and related corporate authorization
documents, organizational documents, secretary's certificates and opinions,
all in form and substance satisfactory to the Administrative Agent and the
Lenders.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Obligations shall remain outstanding or any Lender
shall have any Commitment hereunder, the Borrower will not, and will not
allow any of its Subsidiaries to, without the written consent of the
Required Lenders:
SECTION 8.01 LIENS, ETC. Create, assume or suffer to exist any Lien
upon any of its property or assets whether now owned or hereafter acquired,
except:
(a) Liens existing on the date hereof as set forth on SCHEDULE 8.01
attached hereto; plus
(b) purchase money Liens upon any property acquired or held by the
Borrower or any Subsidiary in the ordinary course of business to secure the
purchase price of such property or to secure Debt incurred solely for the
purpose of financing the acquisition of such property, provided that such
Lien does not extend to any other property and further provided that (i)
such Lien does not exceed the purchase price which shall not exceed the
fair market value (which may include goodwill and intangibles) on the date
of such purchase of such property and (ii) the total amount of indebtedness
secured by such purchase money Liens does not at any time exceed the
aggregate principal amount of $20,000,000 at any one time outstanding; plus
(c) Liens existing on any property held in the ordinary course of
business by the Borrower or any Subsidiary at the time of its acquisition
(other than any such Lien created in contemplation of such acquisition
except as otherwise permitted hereunder); plus
(d) Liens existing on property of any Person acquired by the Borrower
or any of its Subsidiaries at the time of such Acquisition (other than any
such Lien created in contemplation of such Acquisition); plus
(e) purchase money Liens on the property of any Person acquired or
property acquired or held by the Borrower or any Subsidiary to secure the
purchase price of such property or such Person or to secure Debt incurred
solely for the purpose of financing the acquisition of such property or
such Person, provided that such Lien does not extend to any other property
and further provided that such Lien does not exceed the purchase price not
to exceed the fair market value (which may include goodwill and
intangibles) at the time of purchase of such property or such Person and
further provided that such purchase shall not result in a violation of
SECTION 8.01(b) above; plus
(f) Liens for taxes or assessments or other governmental charges or
levies not yet due or which are being actively contested in good faith by
appropriate proceedings if, with respect to the amount of such Liens in
excess of $5,000,000, adequate reserves with respect thereto are maintained
on the books of the Borrower or its Subsidiaries, as the case may be, in
accordance with GAAP and/or with respect to which capacity exists under
this Agreement or other committed credit facilities of the Borrower; plus
(g) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the
ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained; plus
(h) other Liens incidental to the conduct of its business or the
maintenance, operation, construction or ownership of its property and
assets (including pledges or deposits in connection with workers'
compensation and social security taxes, assessments and charges, and
landlords, mechanics and materialmen Liens and survey exceptions or
encumbrances, easements or reservations, rights-of-way, or zoning
restrictions) provided that (A) such Liens were not incurred in connection
with the borrowing of money, or the obtaining of advances or credit or the
payment of the deferred purchase price of property and (B) the existence of
such Lien does not materially detract from the value of such property or
assets (other than property or assets with a de minimus value) to the
Borrower or any Subsidiary or unreasonably interfere with the ordinary
conduct of business; plus
(i) Liens arising from maturity factoring arrangements of Borrower or
any of its Subsidiaries occurring in the normal course of business and
which do not exceed the actual amount of the accounts factored pursuant to
such arrangement; plus
(j) Liens resulting from judgments (not covered by insurance) which
have not been in existence over 30 days or which judgments are being
appealed in good faith provided that such Liens may not exceed an aggregate
amount of $5,000,000 unless with respect to the amount of such Lien
exceeding $5,000,000 Borrower maintains adequate reserves in accordance
with GAAP and/or the capacity exists under this Agreement or other
committed credit facilities of the Borrower to remove such Liens; plus
(k) extensions, renewals or replacements of any Lien referred to in
clauses (a) through (j) of this SECTION 8.01, provided that the principal
amount of the Debt or obligation secured thereby is not increased and that
any such extension, renewal or replacement is limited to the property
originally encumbered by the Lien.
SECTION 8.02 DEBT. Create, incur, assume or suffer to exist, any
Debt, other than:
(a) Debt outstanding pursuant to the Credit Documents; plus
(b) Debt outstanding on the Closing Date and described on SCHEDULE
6.18 hereof (including the guaranty of the obligations of the Borrower
pursuant to the Subordinated Note Purchase Agreement by any Subsidiary of
Borrower which is or simultaneously becomes a party to the Subsidiary
Guaranty Agreement); plus
(c) (i) Debt owing to a Credit Party in the form of Intercompany
Advances, payable on demand, and (ii) Investments in Subsidiaries permitted
by SECTION 8.03; PROVIDED THAT, the aggregate amount of Intercompany
Advances at any one time outstanding from the Borrower to its Subsidiaries
(excluding amounts owed by Xxxxx Funding to the Borrower in connection with
the Securitization Program) shall not exceed $85,000,000 at any time
outstanding; plus
(d) purchase money Debt to the extent permitted by SECTION 8.01; plus
(e) unsecured current liabilities (not resulting from any borrowing)
incurred in the ordinary course of business for current purposes and not
represented by a promissory note or other evidence of indebtedness; plus
(f) Debt incurred by Masland in connection with the Masland Bonds as
long as such Masland Bonds are owned by the Administrative Agent; plus
(g) Deemed Debt incurred by Xxxxx Funding in connection with the
Securitization Program; plus
(h) Additional Debt and Deemed Debt to the extent permitted pursuant
to the last sentence of this SECTION 8.02.
Notwithstanding any provision of this Agreement to the contrary, (i)
Deemed Debt of the Consolidated Companies in excess of $60,000,000 at any
one time outstanding shall be deemed to be Debt of the Consolidated
Companies, and (ii) at no time shall the aggregate principal amount of
outstanding Debt and Deemed Debt of the Consolidated Companies (excluding
Debt arising under subsections (a), (b), (c), (e) and (f) above and Deemed
Debt permitted under (g) or (h) except as provided in clause (i) hereof)
exceed $40,000,000.
SECTION 8.03 RESTRICTIONS ON LOANS, ADVANCES, ACQUISITIONS,
INVESTMENTS AND CONTINGENT LIABILITIES. Make or permit to remain
outstanding any loan or advance to, or extend credit (other than credit
extended in the normal course of business to any Person) to, or guarantee,
endorse or otherwise be or become contingently liable, directly or
indirectly, in connection with the obligations, stock or dividends of, or
any other Investment in, or the Acquisition of, any Person, except that the
Borrower or any Subsidiary may:
(a) make or permit to remain outstanding (i) Intercompany Advances
permitted by SECTION 8.02, and (ii) Intercompany Advances from a Subsidiary
which is not a Credit Party to Borrower which are subordinated to the
Obligations of the Borrower on terms and conditions satisfactory to the
Administrative Agent; plus
(b) permit to remain outstanding any Investments in any Subsidiary
existing on the Closing Date and set forth on SCHEDULE 8.03 plus additional
Investments (in addition to cash Intercompany Advances permitted above) in
Subsidiaries; provided that, the aggregate amount of Investments in
Subsidiaries which are not Credit Parties shall not exceed $10,000,000 at
any time outstanding; plus
(c) acquire and own stock, obligations or securities received in
settlement of debts (created in the ordinary course of business) owing to
the Borrower or any Subsidiary; plus
(d) acquire and own:
(1) prime commercial paper and certificates of deposit in and
banker's acceptances of United States commercial banks having total assets
in excess of $1,000,000,000, in each case due within one year from the date
of purchase and payable in the United States in Dollars;
(2) Eurodollar certificates of deposit in commercial banks having
total assets in excess of $1,000,000,000, due within one year from the date
of purchase and payable in the United States in Dollars;
(3) directly or indirectly through mutual funds, obligations of
United States of America or any agency thereof;
(4) directly or indirectly through mutual funds, corporate
securities or municipal notes or bonds rated "A" or better by Xxxxx'x
Investors Service or the comparable rating of Standard & Poors Corporation;
(5) adjustable rate preferred stock rated "A" or better by Xxxxx'x
Investors Service or Standard & Poors Corporation;
(6) repurchase agreements of United States banks having total assets
in excess of $1,000,000,000 with respect to certificates and obligations
described in clauses (1) through (5) above; plus
(e) acquire for cash or capital stock of Borrower, a minority interest
in any Person engaged in the textile, carpet or related businesses, with
the reasonable intention of acquiring majority control of such Person
within a reasonable period of time and with the financial ability to
acquire such majority control with Debt, existing cash, or capital stock of
Borrower within the limitations of subsection (f); PROVIDED that, a
certificate of a Financial Officer of the Borrower is delivered to the
Lenders within thirty (30) days following the consummation of such
Investment demonstrating compliance on a pro forma basis with the financial
covenants set forth in SECTION 8.11 both before and after giving effect to
such Investment and FURTHER PROVIDED no other Default or Event of Default
exists hereunder or would result therefrom; plus
(f) enter into Acquisition of Persons engaged in the textile, carpet
or related businesses PROVIDED that, (i) the aggregate amount of cash paid
and Debt assumed in connection with such Acquisition by any Consolidated
Company shall not exceed $50,000,000 (including any prior Investment in
such Person made pursuant to subsection (e) above), (ii) a certificate of a
Financial Officer of the Borrower is delivered to the Lenders within thirty
(30) days following the consummation of such Acquisition demonstrating
compliance on a pro forma basis with the financial covenants set forth in
SECTION 8.11 both before and after giving effect to such Acquisition, and
(iii) no other Default or Event of Default exists hereunder or would result
therefrom; plus
(g) endorse negotiable instruments for collection in the ordinary
course of business; plus
(h) make or permit to remain outstanding (i) loans and advances to
employees participating in the Borrower's Employee Stock Purchase Plan, and
(ii) travel and other like advances to officers and employees in the
ordinary course of business, except that the aggregate amount of (i) and
(ii) at any time outstanding shall not exceed $2,000,000; plus
(i) make additional Investments in any other Person (except
Subsidiaries), provided that the sum of such Investments, shall not exceed
in aggregate amount, the greater of (x) $25,000,000, or (y) 15% of Net
Worth at the time of such transaction; and further provided, that no
Subsidiary shall acquire any stock or securities of, the Borrower; plus
(j) issue guarantees to the extent permitted by SECTION 8.02; plus
(k) make or permit to remain outstanding Investments to fund non-
qualified employee benefit plans for highly compensated employees.
SECTION 8.04 MERGER AND ASSET DISPOSITIONS. Enter into any
transaction of merger, consolidation, pooling of interest, joint venture,
syndicate or other combination with any other Person or enter into any
Asset Disposition except that:
(a) any Subsidiary may merge with the Borrower, PROVIDED THAT the
Borrower shall be the continuing or surviving corporation, or with any one
or more other Subsidiaries;
(b) any Subsidiary may sell, lease or otherwise dispose of any of its
assets to the Borrower or another Subsidiary, and upon disposal of
substantially all of its assets as permitted by this subsection (b), such
Subsidiary may be liquidated;
(c) Borrower may merge with another Person; PROVIDED, THAT following
such merger, (i) Borrower shall be the surviving corporation, and (ii)
Borrower shall be in compliance with all financial covenants set forth in
SECTION 8.11 both before and after giving effect to such merger, and (iii)
no Default or Event of Default shall exist hereunder either before or after
giving effect to such merger;
(d) Any Subsidiary may merge with another Person; PROVIDED, that
following such merger the Subsidiary shall be the surviving corporation and
no Default or Event of Default shall exist hereunder;
(e) Borrower and its Subsidiaries may, in any one fiscal year, make
Asset Dispositions (at then current market value) of assets (including
stock of a Subsidiary) (i) having an Asset Book Value of less than twenty-
five percent (25%) of Net Tangible Assets as of the end of the most recent
preceding fiscal quarter, and (ii) which contributed less than ten (10%) of
positive EBIT, for the immediately preceding four fiscal quarters;
PROVIDED, HOWEVER, following any Asset Disposition of the stock of a
Subsidiary resulting in a minority interest in such former Subsidiary, any
resulting Investment in such former Subsidiary must be permitted pursuant
to SECTION 8.03(i) hereof; and
(f) The Borrower and any Subsidiary may make any Acquisition or
Investment permitted by SECTION 8.03 hereof.
SECTION 8.05 ISSUANCE OF STOCK BY SUBSIDIARIES. Permit any Subsidiary
(either directly or indirectly by the issuance of rights or options for, or
securities convertible into such shares) to issue, sell or dispose of any
shares of its stock of any class (other than directors' qualifying shares,
if any).
SECTION 8.06 LEASE OBLIGATIONS. Create or suffer to exist any
obligations for the payment of rent for any property under operating leases
or agreements to lease (other than capital leases) which would cause the
direct or contingent liabilities of the Borrower and its Subsidiaries, on a
consolidated basis, to exceed $10,000,000 payable in any period of twelve
consecutive calendar months.
SECTION 8.07 SALE AND LEASE-BACK. Sell or transfer any property, real
or personal, whether now owned or hereafter acquired, and thereafter rent
or lease such property or other property which any Consolidated Company
intends to use for substantially the same purpose or purposes as the
property being sold or transferred, except for such transactions occurring
after the date of this Agreement; PROVIDED, HOWEVER, the Borrower and its
Subsidiaries may enter into arrangements otherwise prohibited by this
SECTION 8.07 where either (i) the Asset Value of the property sold and
leased back by the Borrower and its Subsidiaries does not, in the
aggregate, exceed $5,000,000, or (ii) in connection with an off-balance
sheet financing transaction where the Borrower or such Subsidiary is
incurring Deemed Debt otherwise permitted by the terms of this Agreement.
SECTION 8.08 SALE OR DISCOUNT OF RECEIVABLES. Except for the maturity
factoring arrangements contemplated by SECTION 8.01(i) hereof and the
Securitization Program, sell with recourse or discount or otherwise sell
for less than the face value thereof, any of its notes or accounts
receivable.
SECTION 8.09 COMPLIANCE WITH ERISA. Take or fail to take, nor permit
any ERISA Affiliate to take or fail to take, any action with respect to a
Plan including, but not limited to (i) establishing any Plan, (ii) amending
any Plan, (iii) terminating or withdrawing from any Plan, or (iv) incurring
an amount of unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA, or any withdrawal liability under Title IV of ERISA,
where such action or failure could have a Material Adverse Effect, result
in a lien on the property of the Consolidated Companies, or require the
Consolidated Companies to provide any security, in any case involving an
amount exceeding $5,000,000 in the aggregate.
SECTION 8.10 CONTRACTS WITH AFFILIATES, DIRECTORS, OR CONTROLLING
SHAREHOLDERS. Enter into any contract or agreement with an Affiliate, a
Director or a Controlling Shareholder except on an arms-length basis and
without any preferential term or provision.
SECTION 8.11 FINANCIAL COVENANTS. In the case of the Borrower,
permit:
(a) SENIOR FUNDED DEBT TO EBITDA. Its ratio of Senior Funded Debt to
EBITDA as of the last day of any fiscal quarter of the Borrower to be
greater than 3.00 to 1.00, calculated, in the case of EBITDA, for the
preceding four fiscal quarters ending on such date.
(b) LEVERAGE RATIO. Its Leverage Ratio as of the last day of any
fiscal quarter of the Borrower to be greater than 0.65 to 1.00.
(c) INTEREST COVERAGE RATIO. Its Interest Coverage Ratio as of the
last day of any fiscal quarter of the Borrower to be less than 1.75 to
1.00.
(d) CONSOLIDATED NET WORTH. Fail to maintain as of the last day of
each fiscal quarter of Borrower, Consolidated Net Worth equal to or greater
than the Minimum Compliance Level PLUS, for each of the first three fiscal
quarters of each fiscal year of Borrower, 50% of the Consolidated Net
Income of the Borrower earned during the current fiscal year, calculated on
a cumulative basis for such fiscal year; PROVIDED, HOWEVER, in the event
that the Consolidated Companies suffer a net loss for any year-to-date
fiscal period, Consolidated Net Income shall be deemed to be $0. The
"Minimum Compliance Level" shall, as of any date of determination, equal to
the sum of (x) $115,000,000 (excluding the write-off resulting from the
Tarboro Disposition in the amount of $9,673,166), PLUS (y) an additional
amount calculated as of the last day of each fiscal year of Borrower,
commencing with fiscal year 1998 and added to the Minimum Compliance Level
then in effect as of the last day of such fiscal year, equal to 50% of the
Consolidated Net Income for such fiscal year of Borrower then ending;
PROVIDED, HOWEVER, in the event that the Consolidated Companies suffer a
net loss for any fiscal year, Consolidated Net Income shall be deemed to be
$0, and further provided that amounts calculated pursuant to clause (y)
above shall be permanent increases in the Minimum Compliance Level so that
in no event shall the Minimum Compliance Level at any date of determination
be less than the amount required at any preceding date of determination.
SECTION 8.12 DIVIDENDS, ETC. In the case of the Borrower, declare or
pay any dividend on its capital stock, or make any payment to purchase,
redeem, retire, defease or acquire any of its Subordinated Debt or capital
stock or any option, warrant, or other right to acquire such Subordinated
Debt or capital stock, other than:
(i) dividends payable solely in shares of capital stock and
acceptance of capital stock in payment of the purchase price of any right
to purchase the capital stock of Borrower granted to an officer, director
or employee of a Consolidated Company; and
(ii) cash dividends declared and paid, and all other such payments
made, including repurchases of stock from employees in connection with
employee benefit plans (but excluding stock repurchases made pursuant to
subsection (iii)) in an aggregate amount in any fiscal year not to exceed
50% of Net Income (which must be a positive number) earned during the
Borrower's preceding fiscal year;
(iii) payments made to repurchase outstanding stock of Borrower;
provided that such payments do not exceed the fair market value of such
stock and are made in connection with a stock repurchase program
implemented by Borrower for the benefit of all of its shareholders; and
(iv) regularly scheduled payments of interest and principal
amortization with respect to the Senior Subordinated Note Agreement and the
Subordinated Convertible Debentures; PROVIDED THAT, during the six-month
period prior to any scheduled amortization payment with respect to the
Subordinated Convertible Debentures, the Borrower may purchase its
Subordinated Convertible Debentures for an aggregate purchase price not to
exceed 1.25 multiplied by the next scheduled amortization payment provided
that such purchased Subordinated Convertible Debentures are tendered by the
Borrower in satisfaction of its obligation to make the next scheduled
amortization payment(s) with respect to the Subordinated Convertible
Debentures;
PROVIDED, HOWEVER, no such dividend or other payment may be declared
or paid pursuant to clauses (ii), (iii) or (iv) above unless no Default or
Event of Default exists at the time of such declaration or payment, or
would exist as a result of such declaration or payment.
SECTION 8.13 ACTIONS UNDER CERTAIN DOCUMENTS. (a) Modify, amend,
cancel or rescind the Intercompany Advances (except for modifications and
amendments to increase the principal amount of the Intercompany Advances to
the extent otherwise permitted by this Agreement);
(b) Modify or amend Subordinated Debt or any agreements or documents
evidencing or governing the Subordinated Debt, the Securitization Program
or the Masland Bonds other than modifications of the Subordinated Debt,
Securitization Program and the Masland Bonds which do not (i) in the case
of the Masland Bonds, increase the principal amount of the indebtedness
thereunder, (ii) increase the interest rate or any fees or penalties
thereunder (other than a repricing of the Securitization Program in
accordance with market conditions at the time of any extension or renewal
thereof), (iii) modify any requirement of prepayment or repayment
thereunder (other than extensions of the term of the Securitization Program
or any Subordinated Debt), or (iv) add or make more onerous any other
provision thereof or that would cause or permit such indebtedness to become
due and payable prior to the Obligations;
(c) For so long as the Administrative Agent is the holder of the
Masland Bonds, elect that the Masland Bonds bear interest at the "Term
Rate" or the "Weekly Rate" as such terms are defined in the Trust Indenture
executed in connection with the Masland Bonds; or
(d) Prepay or otherwise shorten the maturity of any Subordinated Debt.
SECTION 8.14 LIMITATION ON PAYMENT RESTRICTIONS AFFECTING CONSOLIDATED
COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other distributions
on such Consolidated Company's stock, or (ii) pay any indebtedness owed to
the Borrower or any other Consolidated Company, or (iii) transfer any of
its property or assets to the Borrower or any other Consolidated Company,
except any consensual encumbrance or restriction existing under (x) the
Credit Documents or (y) the Senior Subordinated Note Indenture as in effect
on the date hereof.
SECTION 8.15 CHANGE OF FISCAL YEAR. Change the calculation of the
fiscal year of any of the Consolidated Companies.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.01 PAYMENTS. The Borrower shall fail to make promptly when
due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Loans, or the Borrower shall fail to make
within seven (7) days after the due date thereof any payment of interest,
fee or other amount payable hereunder;
SECTION 9.02 COVENANTS WITHOUT NOTICE. Borrower shall fail to observe
or perform any covenant or agreement contained in SECTIONS 7.07(g) or (q),
7.09 or ARTICLE VIII;
SECTION 9.03 OTHER COVENANTS. Borrower shall fail to observe or
perform any covenant or agreement contained in this Agreement, other than
those referred to in SECTIONS 9.01 and 9.02, and, if capable of being
remedied, such failure shall remain unremedied for 30 days after the
earlier of (i) Borrower's obtaining knowledge thereof, or (ii) written
notice thereof shall have been given to Borrower by any Agent or Lender;
SECTION 9.04 REPRESENTATIONS. Any representation or warranty made or
deemed to be made by Borrower or any other Credit Party or by any of its
officers under this Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or other document submitted
to the Agents or the Lenders by any such Person pursuant to the terms of
this Agreement or any other Credit Document, shall be incorrect in any
material respect when made or deemed to be made or submitted;
SECTION 9.05 NON-PAYMENTS OF OTHER DEBT. Any Consolidated Company
shall fail to make when due (whether at stated maturity, by acceleration,
on demand or otherwise, and after giving effect to any applicable grace
period) any payment of principal of or interest or other amount due on any
Debt (other than the Obligations) or Deemed Debt exceeding $2,500,000 in
the aggregate;
SECTION 9.06 DEFAULTS UNDER OTHER AGREEMENTS. Any Consolidated
Company shall fail to observe or perform, unless such failure is waived or
cured within any applicable grace period, any covenants or agreements
contained in any agreements or instruments relating to any of its Debt
exceeding $2,500,000 in the aggregate, or any other event shall occur if
the effect of such failure or other event is to accelerate, or to permit
the holder of such Debt or any other Person to accelerate, the maturity of
such Debt; or any such Debt shall be required to be prepaid (other than by
a regularly scheduled required prepayment) in whole or in part prior to its
stated maturity;
SECTION 9.07 BANKRUPTCY. Borrower or any other Consolidated Company
shall commence a voluntary case concerning itself under the Bankruptcy Code
or applicable foreign bankruptcy laws; or an involuntary case for
bankruptcy is commenced against any Consolidated Company and the petition
is not controverted within 10 days, or is not dismissed within 60 days,
after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) or similar official under applicable foreign bankruptcy
laws is appointed for, or takes charge of, all or any substantial part of
the property of any Consolidated Company; or any Consolidated Company
commences proceedings of its own bankruptcy or to be granted a suspension
of payments or any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction, whether now or hereafter in
effect, relating to any Consolidated Company or there is commenced against
any Consolidated Company any such proceeding which remains undismissed for
a period of 60 days; or any Consolidated Company is adjudicated insolvent
or bankrupt; or any order of relief or other order approving any such case
or proceeding is entered; or any Consolidated Company suffers any
appointment of any custodian or the like for it or any substantial part of
its property to continue undischarged or unstayed for a period of 60 days;
or any Consolidated Company makes a general assignment for the benefit of
creditors; or any Consolidated Company shall fail to pay, or shall state
that it is unable to pay, or shall be unable to pay, its debts generally as
they become due; or any Consolidated Company shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act
indicate its consent to, approval of or acquiescence in any of the
foregoing; or any corporate action is taken by any Consolidated Company for
the purpose of effecting any of the foregoing;
SECTION 9.08 ERISA. A Plan of a Consolidated Company or a Plan
subject to Title IV of ERISA of any of its ERISA Affiliates
(i) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan, Section 412 of
the Tax Code or Section 302 of ERISA for any plan year or a waiver of such
standard is sought or granted with respect to such Plan under applicable
law, the terms of such Plan or Section 412 of the Tax Code or Section 303
of ERISA; or
(ii) is being, or has been, terminated or the subject of termination
proceedings under applicable law or the terms of such Plan; or
(iii) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of the Tax Code
or Section 306 or 307 of ERISA; or
(iv) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other
event a liability to the PBGC or a Plan that would have a Materially
Adverse Effect.
SECTION 9.09 JUDGMENT. A judgment or order for the payment of money
in excess of $2,500,000 or otherwise having a Materially Adverse Effect
shall be rendered against Borrower or any other Consolidated Company and
such judgment or order shall continue unsatisfied (in the case of a money
judgment) and in effect for a period of 45 days during which execution
shall not be effectively stayed or deferred (whether by action of a court,
by agreement or otherwise);
SECTION 9.10 OWNERSHIP OF CREDIT PARTIES. If any Guarantor shall at
any time fail to be a wholly owned Subsidiary of Borrower, either directly
or indirectly through another wholly owned Subsidiary of Borrower;
SECTION 9.11 CHANGE IN CONTROL OF BORROWER. Any Change in Control
shall occur or exist;
SECTION 9.12 DEFAULT UNDER OTHER CREDIT DOCUMENTS. There shall exist
or occur any "Event of Default" as provided under the terms of any other
Credit Document, or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on
behalf of Borrower or any other Credit Party, or at any time it is or
becomes unlawful for Borrower or any other Credit Party to perform or
comply with its obligations under any Credit Document, or the obligations
of Borrower or any other Credit Party under any Credit Document are not or
cease to be legal, valid and binding on Borrower or any such Credit Party;
SECTION 9.13 DEFAULT UNDER INTEREST RATE CONTRACT OR CURRENCY
CONTRACT. Any event or condition shall occur or exist which causes, or
permits any party thereto (other than the Consolidated Company or Companies
party thereto) to cause, the termination or cancellation of the or any
Interest Rate Contract or Currency Contract (excluding any termination or
cancellation effected at the option of Borrower in the exercise of
Borrower's business judgment or any other termination or cancellation of
such Interest Rate Contract or Currency Contract not resulting from any
breach of such agreement or default thereunder by any Consolidated Company
or Companies), and as a result of such cancellation or termination, any of
the Consolidated Companies would be required to make net payments
thereunder in excess of $2,500,000 in the aggregate;
SECTION 9.14 ATTACHMENTS. An attachment or similar action shall be
made on or taken against any of the assets of any Consolidated Company with
an Asset Value exceeding $2,500,000 in aggregate and is not removed within
90 days of the same being made;
then, and in any such event, and at any time thereafter if any Event of
Default shall then be continuing, the Administrative Agent may, with the
consent of the Required Lenders, and upon the written or telecopy request
of the Lenders, shall, by written notice to Borrower, take any or all of
the following actions, without prejudice to the rights of the
Administrative Agents, any Lender or the holder of any Note to enforce its
claims against Borrower or any other Credit Party: (i) declare all
Commitments terminated, whereupon the pro rata Commitments of each Lender
shall terminate immediately and any commitment fee shall forthwith become
due and payable without any other notice of any kind; and (ii) declare the
principal of and any accrued interest on the Loans, and all other
Obligations owing hereunder, to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by Borrower; PROVIDED,
that, if an Event of Default specified in SECTION 9.07 shall occur, the
result which would occur upon the giving of written notice by the
Administrative Agent to any Credit Party, as specified in clauses (i) and
(ii) above, shall occur automatically without the giving of any such
notice. Upon any acceleration of the Loans outstanding hereunder, all
outstanding Letters of Credit shall be deemed to have been fully drawn and
the Borrower shall be required to deposit cash collateral into the L/C Cash
Collateral Account in accordance with the provisions of SECTION 2.06(b).
ARTICLE X
THE AGENTS
SECTION 10.01 APPOINTMENT AND AUTHORIZATION. Each Lender hereby
designates SunTrust as Administrative Agent to act as herein specified.
Each Lender hereby designates NationsBank, N.A. as Documentation Agent to
act as herein specified. Each Lender hereby irrevocably authorizes, and
each holder of any Note by the acceptance of a Note shall be deemed
irrevocably to authorize, the Administrative Agent to take such action on
its behalf under the provisions of this Agreement and the Notes and any
other instruments and agreements referred to herein, including the Masland
Bonds, and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof and such other powers
as are reasonably incidental thereto. The Administrative Agent may perform
any of its duties hereunder by or through its agents or employees. The
Documentation Agent in its capacity as such, shall not have any duties or
obligations whatsoever under this Agreement, the Notes or any of the other
Credit Documents, but shall nevertheless be entitled to all benefits
afforded to each of it in such capacity hereunder.
SECTION 10.02 NATURE OF DUTIES OF THE ADMINISTRATIVE AGENT. The
Administrative Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement. Neither the Administrative Agent
nor any of its officers, directors, employees or agents shall be liable for
any action taken or omitted by it as such hereunder or in connection
herewith, unless caused by its or their gross negligence or willful
misconduct. The Administrative Agent shall not have by reason of this
Agreement a fiduciary relationship in respect of any Lender; and nothing in
this Agreement, expressed or implied, is intended to or shall be so
construed as to impose upon the Administrative Agent any obligations in
respect of this Agreement except as expressly set forth herein. The
Administrative Agent agrees to give each Lender prompt notice of the
Administrative Agent's receipt from the Borrower of any notice under this
Agreement or the Masland Bonds.
SECTION 10.03 LACK OF RELIANCE ON THE AGENTS.
(a) Each Lender agrees that, independently and without reliance upon
the Administrative Agent, the Documentation Agent, any other Lender, or the
directors, officers, agents or employees of the Administrative Agent, the
Documentation Agent or of any other Lender, each Lender, to the extent it
deems appropriate, has made and shall continue to make (i) its own
independent investigation of the financial condition and affairs of the
Borrower and its Subsidiaries in connection with the taking or not taking
of any action in connection with this Agreement and the other Credit
Documents, including the decision to enter into this Agreement and to
purchase the participation in the Masland Bonds, and (ii) its own appraisal
of the creditworthiness of the Borrower and its Subsidiaries, and, except
as expressly provided in this Agreement, the Administrative Agent shall
have no duty or responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of any
Advance or at any time or times thereafter.
(b) Neither the Administrative Agent nor the Documentation Agent shall
be responsible to any Lender for any recitals, statements, information,
representations or warranties herein or in any document, certificate or
other writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility,
priority or sufficiency of this Agreement or the Notes or the Masland Bonds
or the financial condition of the Borrower or its Subsidiaries or be
required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement
or the Notes or the Masland Bonds, or the financial condition of the
Borrower or its Subsidiaries, or the existence or possible existence of any
Default or Event of Default.
SECTION 10.04 CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT.
(a) If the Administrative Agent shall request instructions from the
Required Lenders with respect to any act or action (including the failure
to act) in connection with this Agreement, the Administrative Agent shall
be entitled to refrain from such act or taking such action unless and until
the Administrative Agent shall have received instructions from the Required
Lenders and the Administrative Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against the Administrative
Agent as a result of the Administrative Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required
Lenders; PROVIDED, HOWEVER, that the Administrative Agent shall not be
required to act or not act in accordance with any instructions of the
Required Lenders if to do so would expose the Administrative Agent to
personal liability or would be contrary to any Loan Document or to
applicable law.
(b) The Administrative Agent may assume that no Event of Default has
occurred and is continuing, unless the Administrative Agent has received
notice from the Borrower stating the nature of the Event of Default, or has
received notice from a Lender stating the nature of the Event of Default
and that such Lender considers the Event of Default to have occurred and to
be continuing.
SECTION 10.05 LIABILITY OF THE AGENTS. Neither the Administrative
Agent, the Documentation Agent, nor any of their respective directors,
officers, agents, or employees shall be liable for any action taken or not
taken by them in such capacity under or in connection with the Credit
Documents, EXCEPT for their own gross negligence or willful misconduct.
Without limitation on the foregoing, the Administrative Agent, the
Documentation Agent and their respective directors, officers, agents, and
employees:
(a) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives notice of the assignment or transfer thereof
in form satisfactory to the Administrative Agent, signed by the payee and
may treat each Lender as the owner of that Lender's interest in the
obligations due to the Lender for all purposes of this Agreement until the
Administrative Agent receives notice of the assignment or transfer thereof,
in form satisfactory to the Administrative Agent, signed by that Lender;
(b) may consult with legal counsel, in-house legal counsel,
independent public accountants, in-house accountants and other
professionals, or other experts selected by it with reasonable care, or
with legal counsel, independent public accountants, or other experts for
the Borrower, and shall not be liable for any action taken or not taken by
it or them in good faith in accordance with the advice of such legal
counsel, independent public accountants, or experts;
(c) will not be responsible to any Lender for any statement, warranty,
or representation made in any of the Credit Documents or in any notice,
certificate, report, request, or other statement (written or oral) in
connection with any of the Credit Documents;
(d) except to the extent expressly set forth in the Credit Documents,
will have no duty to ascertain or inquire as to the performance or
observance by the Borrower or any other Person of any of the terms,
conditions, or covenants of any of the Credit Documents or to inspect the
property, books, or records of the Borrower or any Subsidiary or other
Person;
(e) will not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, effectiveness,
sufficiency, or value of any Loan Document, any other instrument or writing
furnished pursuant thereto or in connection therewith;
(f) will not incur any liability by acting or not acting in reliance
upon any Loan Document, notice, consent, certificate, document, statement,
telex, telecopier message or other instrument or writing believed by it or
them to be genuine and to have been signed, sent or made by the proper
Person; and
(g) will not incur any liability for any arithmetical error in
computing any amount payable to or receivable from any Lender hereunder,
including, without limitation, payment of principal and interest on the
Notes, Advances, and other amounts; PROVIDED that promptly upon discovery
of such an error in computation, the Administrative Agent, the Lender, and
(to the extent applicable) the Borrower shall make such adjustments as are
necessary to correct such error and to restore the parties to the position
that they would have occupied had the error not occurred.
SECTION 10.06 INDEMNIFICATION. Each Lender shall, ratably in
accordance with the respective outstanding principal amount of its
Advances, indemnify and hold the Administrative Agent, the Documentation
Agent and their respective directors, officers, agents, and employees
harmless against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements of
any kind or nature whatsoever (including, without limitation, attorneys'
fees and disbursements) that may be imposed on, incurred by, or asserted
against it or them in any way relating to or arising out of the Credit
Documents (other than losses incurred by reason of the failure by the
Borrower to pay the obligations due to the Lenders hereunder or under the
Notes) or any action taken or not taken by it as Administrative Agent or
the Documentation Agent thereunder, EXCEPT for the gross negligence or
willful misconduct of such party. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for that
Lender's ratable share of any cost or expense incurred by the
Administrative Agent in connection with the negotiation, preparation,
execution, delivery, administration, amendment, waiver, refinancing,
restructuring, reorganization (including a bankruptcy reorganization), or
enforcement of the Credit Documents, to the extent that the Borrower is
required to pay that cost or expense but fails to do so upon demand.
SECTION 10.07 AGENTS AND AFFILIATES. SunTrust Bank, Atlanta (and each
successor Administrative Agent) and NationsBank, N.A. each have the same
rights and powers under the Credit Documents as any other Lender and may
exercise the same as though it were not the Administrative Agent or
Documentation Agent, respectively; and the term "the Lenders" or "Lender"
includes SunTrust Bank in its individual capacity and NationsBank, N.A. in
its individual capacity. SunTrust Bank (and each successor Administrative
Agent), NationsBank, N.A. and their respective Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking,
trust or other business with the Borrower and any Affiliate or Subsidiary
of the Borrower, as if it were not the Administrative Agent or the
Documentation Agent and without any duty to account therefor to the
Lenders. SunTrust Bank (and each successor Administrative Agent) need not
account to any other Lender for any monies received by it for reimbursement
of its costs, expenses and fees as the Administrative Agent hereunder, or
for any monies received by it in its capacity as a Lender hereunder, except
as otherwise provided herein. This Agreement shall not be deemed to
constitute a joint venture or partnership among the Lenders.
SECTION 10.08 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign as such at any time by written notice to the Borrower and
the Lenders, to be effective upon a successor's acceptance of appointment
as Administrative Agent. In such event, subject to the approval of the
Borrower, the Required Lenders shall appoint a successor Administrative
Agent or Administrative Agents, who must be from among the Lenders;
PROVIDED, that the Administrative Agent shall be entitled to appoint a
successor Administrative Agent from among the Lenders, subject to
acceptance of appointment by that successor Administrative Agent and
subject to the approval of the Borrower, if the Required Lenders have not
appointed a successor Administrative Agent within thirty (30) calendar days
after the date the Administrative Agent gave notice of resignation or was
removed. Upon a successor's acceptance of appointment as Administrative
Agent, the successor will thereupon succeed to and become vested with all
the rights, powers, privileges, and duties of the Administrative Agent
under the Credit Documents, and the resigning Administrative Agent will
thereupon be discharged from its duties and obligations thereafter arising
under the Credit Documents.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 NO WAIVER. No delay or failure on the part of the
Administrative Agent or any Lender or any holder of any of the Notes in the
exercise of any right, power or privilege granted under this Agreement,
under any other Loan Document, or available at law or in equity, shall
impair any such right, power or privilege or be construed as a waiver of
any Event of Default or any acquiescence therein. No single or partial
exercise of any such right, power or privilege shall preclude the further
exercise of such right, power or privilege. No waiver shall be valid
against the Lenders unless made in writing and signed by the Administrative
Agent, and then only to the extent expressly specified therein.
SECTION 11.02 NOTICES. Unless otherwise provided herein, all notices,
requests and other communications provided for hereunder shall be in
writing and shall be given at the address set forth for such party on the
signature pages hereof. Any such notice, request or other communication
shall be effective (i) if given by telex, when such telex is transmitted to
the telex number specified above or specified opposite each Lender's
signature below and the appropriate answerback is received, (ii) if given
by mail, upon the earlier of receipt or the third Business Day after such
communication is deposited in the United States mails, registered or
certified, with first class postage prepaid, addressed as aforesaid or
(iii) if given by any other means (including, without limitation, by air
courier), when delivered at the address specified herein. The Borrower,
the Administrative Agent, any other Agent or any Lender may change its
address for notice purposes by notice to the other parties in the manner
provided herein.
SECTION 11.03 DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
SECTION 11.04 TIME IS OF THE ESSENCE. Time is of the essence in
interpreting and performing this Agreement and all other Credit Documents.
SECTION 11.05 PAYMENT OF EXPENSES, ETC. Borrower shall:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and expenses of the
Administrative Agent in the administration (both before and after the
execution hereof and including reasonable expenses actually incurred
relating to advice of counsel as to the rights and duties of the
Administrative Agent and the Lenders with respect thereto) of, and in
connection with the preparation, execution and delivery of, preservation of
rights under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the
other Credit Documents and the documents and instruments referred to
therein, and any amendment, waiver or consent relating thereto (including,
without limitation, the reasonable fees actually incurred and reasonable
disbursements of counsel for the Administrative Agent), and in the case of
enforcement of this Agreement or any Credit Document after an Event of
Default, all such reasonable, out-of-pocket costs and expenses (including,
without limitation, the reasonable fees actually incurred and disbursements
of counsel), for any of the Administrative Agent and the Lenders;
(b) subject, in the case of certain Taxes, to the applicable
provisions of SECTION 4.07(b), pay and hold each of the Agents and the
Lenders harmless from and against any and all present and future stamp,
documentary, and other similar Taxes with respect to this Agreement, the
Notes and any other Credit Documents, any collateral described therein, or
any payments due thereunder, and save each of the Lenders harmless from and
against any and all liabilities with respect to or resulting from any delay
or omission to pay such Taxes; and
(c) indemnify the Agents and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold
each of them harmless against, any and all costs, losses, liabilities,
claims, damages or expenses incurred by any of them (whether or not any of
them is designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to any
actual or proposed use of the proceeds of any of the Loans or any Credit
Party's entering into and performing of the Agreement, the Notes, or the
other Credit Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel incurred in connection with
any such investigation, litigation or other proceeding; PROVIDED, HOWEVER,
Borrower shall not be obligated to indemnify any Indemnitee for any of the
foregoing arising out of such Indemnitee's gross negligence or willful
misconduct;
(d) in addition to amounts payable elsewhere provided in this
Agreement, without duplication, indemnify, pay and save the Administrative
Agent harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and reasonable expenses (including
reasonable attorney's fees and disbursements) which the Administrative
Agent may incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit for the account of Borrower, other
than as a result of the gross negligence or willful misconduct of the
Administrative Agent; or (ii) the failure of the Administrative Agent to
honor a drawing under any Letter of Credit due to any act or omission
(whether rightful or wrongful) of any present or future DE JURE or DE FACTO
government or governmental authority;
(e) without limiting the indemnities set forth above, indemnify each
Indemnitee for any and all expenses and costs (including without
limitation, remedial, removal, response, abatement, cleanup, investigative,
closure and monitoring costs), losses, claims (including claims for
contribution or indemnity and including the cost of investigating or
defending any claim and whether or not such claim is ultimately defeated,
and whether such claim arose before, during or after any Credit Party's
ownership, operation, possession or control of its business, property or
facilities or before, on or after the date hereof, and including also any
amounts paid incidental to any compromise or settlement by the Indemnitee
or Indemnitees to the holders of any such claim), lawsuits, liabilities,
obligations, actions, judgments, suits, disbursements, encumbrances, liens,
damages (including without limitation damages for contamination or
destruction of natural resources), penalties and fines of any kind or
nature whatsoever (including without limitation in all cases the reasonable
fees actually incurred, other reasonable charges and disbursements of
counsel in connection therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to Environmental Laws
based on, arising out of or relating to in whole or in part, the existence
or exercise of any rights or remedies by any Indemnitee under this
Agreement, any other Credit Document or any related documents (but
excluding those incurred, suffered or sustained by any Indemnitee as a
result of any action taken by or on behalf of the Lenders with respect to
any Subsidiary of Borrower (or the assets thereof) owned or controlled by
the Lenders, the Agents, or their nominees or designees.
If and to the extent that the obligations of Borrower under this SECTION
11.05 are unenforceable for any reason, Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
SECTION 11.06 BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto, provided that Borrower may not assign or transfer any of its
interest hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer its Advances at, to or for
the account of, any of its branch offices or the office of an Affiliate of
such Lender.
(c) Each Lender may assign all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of any of
its Commitments and the Advances at the time owing to it and the Notes held
by it) to any financial institution; PROVIDED, HOWEVER, that (i) the
Administrative Agent and Borrower must give their prior written consent to
such assignment unless such assignment is to an Affiliate of the assigning
Lender (such consent not to be unreasonably withheld; PROVIDED THAT, the
Borrower may withhold its consent without any cause or justification for a
period of ninety (90) days after notice of a proposed assignment hereunder
and if the Borrower designates another Lender acceptable to the
Administrative Agent within that period willing to purchase the assigning
Lender's proposed assignment amount for the same purchase price and on the
same terms and conditions as the assigning Lender's proposed assignee, the
assigning Lender shall sell such interest hereunder to the Borrower's
proposed assignee in accordance with this SECTION 11.06), (ii) the amount
of the Commitments of the assigning Lender subject to each assignment
(determined as of the date the assignment and acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than an amount equal to $5,000,000 or greater integral multiplies thereof,
(iii) such assigning Lender shall assign a proportionate share of all of
its Commitments, assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with the outstanding Advances
and its participation in the MASLAND BONDS to the such assignee, and (iv)
the parties to each such Note or Notes subject to such assignment and,
unless such assignment is to an Affiliate of such Lender, a processing and
recordation fee of $2,500. Borrower shall not be responsible for such
processing and recordation fee or any costs or expenses incurred by any
Lender or the Administrative Agent in connection with such assignment.
From and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days
after the execution thereof, the assignee thereunder shall be a party
hereto and to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this
Agreement. Notwithstanding the foregoing, the assigning Lender must retain
after the consummation of such Assignment and Acceptance, a minimum
aggregate amount of Commitments of $10,000,000; PROVIDED, HOWEVER, no such
minimum amount shall be required with respect to any such assignment made
at any time there exists an Event of Default hereunder. Within five (5)
Business Days after receipt of the notice and the Assignment and
Acceptance, Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Note or Notes, a new
Note or Notes to the order of such assignee in a principal amount equal to
the applicable Commitments assumed by it pursuant to such Assignment and
Acceptance and new Note or Notes to the assigning Lender in the amount of
its retained Commitment or Commitments. Such new Note or Notes shall be in
an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the date of the surrendered
Note or Notes which they replace, and shall otherwise be in substantially
the form attached hereto.
(d) Each Lender may, without the consent of Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Revolving Loan Commitments and
the Loans owing to it and the Notes held by it), PROVIDED, HOWEVER, that
(i) no Lender may sell a participation in its aggregate Commitments (after
giving effect to any permitted assignment hereof) in an amount in excess of
fifty percent (50%) of such aggregate Commitments, provided, however, sales
of participations to an Affiliate of such Lender shall not be included in
such calculation; PROVIDED, HOWEVER, no such maximum amount shall be
applicable to any such participation sold at any time there exists an Event
of Default hereunder, (ii) such Lender's obligations under this Agreement
shall remain unchanged, (iii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations, and
(iv) the participating bank or other entity shall not be entitled to the
benefit (except through its selling Lender) of the cost protection
provisions contained in ARTICLE IV of this Agreement, and (v) Borrower and
the Administrative Agent and other Lenders shall continue to deal solely
and directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such
Lender shall retain the sole right to enforce the obligations of Borrower
relating to the Loans and to approve any amendment, modification or waiver
of any provisions of this Agreement.
(e) Any Lender may at any time assign all or any portion of its rights
in this Agreement and the Notes issued to it to a Federal Reserve Bank;
PROVIDED that no such assignment shall release the Lender from any of its
obligations hereunder.
(f) If (i) any Taxes referred to in SECTION 4.07(b) have been levied
or imposed so as to require withholdings or deductions by the Borrower and
payment by the Borrower of additional amounts to any Lender as a result
thereof, (ii) any Lender shall make demand for payment of increased costs
or reduced rate of return pursuant to SECTION 4.10 or any Lender determines
that LIBOR is unascertainable or illegal pursuant to SECTION 4.08 or
SECTION 4.09, or any Lender makes a claim for increased costs pursuant to
SECTION 4.11, or (iii) any Lender shall decline to consent to a
modification or waiver of the terms of this Agreement or the other Credit
Documents requested by Borrower, then and in such event, upon request from
Borrower delivered to such Lender and the Administrative Agent, such Lender
shall assign, in accordance with the provisions of SECTION 11.06(c), all of
its rights and obligations under this Agreement and the other Credit
Documents to another Lender or an Eligible Assignee selected by Borrower
and consented to by the Administrative Agent (such consent not be
unreasonably withheld) in consideration for the payment by such assignee to
the Lender of the principal of, and interest on, the outstanding Loans
accrued to the date of such assignment, and the assumption of such Lender's
Commitment hereunder, together with any and all other amounts owing to such
Lender under any provisions of this Agreement or the other Credit Documents
accrued to the date of such assignment; PROVIDED, HOWEVER, Lenders subject
to this SECTION 11.06 shall be treated in a substantially identical manner.
SECTION 11.07 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
NOTES, THE DIXIE REIMBURSEMENT AGREEMENT, OR ANY OTHER CREDIT DOCUMENT MAY
BE BROUGHT IN THE SUPERIOR COURT OF XXXXXX COUNTY, GEORGIA, OR THE SUPERIOR
COURT OF XXXXXX COUNTY, GEORGIA, OR IN ANY COURT OF THE UNITED STATES OF
AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY
JURY, AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) THE BORROWER HEREBY IRREVOCABLY DESIGNATES XXXX X. XXXXXX OR ANY
OTHER PARTNER OF THE LAW FIRM OF XXXX, XXXXXXX AND XXXXXXXX, AS ITS
DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND ON BEHALF OF THE
BORROWER, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES OR ANY
DOCUMENT RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS
SERVED ON EITHER SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY MAIL TO THE
BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, BUT THE
FAILURE OF THE BORROWER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY
THE SERVICE OF SUCH PROCESS. NOTWITHSTANDING THE FOREGOING, UPON NOTICE
FROM THE BORROWER TO THE ADMINISTRATIVE AGENT, THE BORROWER MAY APPOINT A
SUBSTITUTE AGENT SATISFACTORY TO THE REQUIRED LENDERS FOR PURPOSES OF THIS
SECTION 11.07(c), AND UPON ACCEPTANCE BY SUCH SUBSTITUTE AGENT AND THE
REQUIRED LENDERS, SUCH SUBSTITUTE AGENT SHALL SERVE AS THE AGENT FOR
SERVICE OF PROCESS HEREUNDER. IF FOR ANY REASON SERVICE OF PROCESS CANNOT
PROMPTLY BE MADE ON EITHER SUCH LOCAL AGENT, THE BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Agents, any Lender,
any holder of a Note or any Credit Party to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrower in any other jurisdiction.
SECTION 11.08 CONFIDENTIALITY. Each Lender agrees that it will
maintain in confidence and will not disclose, publish or disseminate, to
any Person, any confidential information which it has or shall acquire
during the term of this Agreement relating to the business, operations and
condition, financial or otherwise of the Borrower, except that such
information may be disclosed by such Lender if and to the extent that:
(a) such information is in the public domain at the time of
disclosure;
(b) such information is required to be disclosed by subpoena or
similar process of applicable law or regulations;
(c) such information is required to be disclosed to any regulatory or
administrative body or commission to whose jurisdiction such Lender may be
subject;
(d) such information is disclosed to counsel, auditors or other
professional advisors to such Lender or to affiliates of such Lender
provided that such affiliates agree to keep such information confidential
as set forth herein;
(e) such information is disclosed with the prior written consent of
the Borrower which consent shall not be unreasonably withheld or delayed;
(f) such information is disclosed in connection with any litigation or
dispute between such Lender and the Borrower concerning this Agreement or
the Notes or any of the other Credit Documents;
(g) such information is disclosed in connection with a prospective
assignment, grant of a participation interest in or other transfer by such
Lender of any of its interest in the Credit Documents in accordance with
SECTION 11.06;
(h) such information was in the possession of such Person or such
Person's affiliates without obligation of confidentiality prior to such
Lender furnishing it to such Person; or
(i) such information is received by such Lender, without restriction
as to its disclosure or use, from a Person, who, to such Lender's knowledge
or reasonable belief, was not prohibited from disclosing it by any duty of
confidentiality.
Each Lender agrees to use its best efforts to give the Borrower prompt
notice of any subpoena or similar process referred to in clause (b) above,
provided that such Lender shall have no liability in event such notice is
not given.
SECTION 11.09 INDEPENDENT NATURE OF LENDERS' RIGHTS. The amounts
payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce
its rights pursuant to this Agreement and its Notes, and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
SECTION 11.10 INTENT NOT TO VIOLATE USURY LAWS. It is the intent of
the parties hereto not to violate any federal or state law, rule or
regulation pertaining either to usury or to the contracting for or charging
or collecting of interest, and the Borrower and the Agents and Lenders
agree that, should any provision of this Agreement or of the Notes, or any
act performed hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest or loan charges contracted for or
charged or collected over the maximum lawful rate of interest shall be
applied to the outstanding principal indebtedness due to the Lenders by the
Borrower under this Agreement.
SECTION 11.11 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
SECTION 11.12 SURVIVAL. The obligations of the Borrower under
SECTIONS 4.07(b), 4.10, 4.11, 4.12, 4.16 and 11.05 hereof shall survive
the payment in full of the Notes after the Revolving Loan Termination Date
and the Maturity Date. All representations and warranties made herein, in
the certificates, reports, notices, and other documents delivered pursuant
to this Agreement shall survive the execution and delivery of this
Agreement, the other Credit Documents, and such other agreements and
documents, the making of the Loans hereunder, the execution and delivery of
the Notes, and the issuance of the Letters of Credit.
SECTION 11.13 SEVERABILITY. In case any provision in or obligation
under this Agreement, the Letter of Credit Agreement, or the other Credit
Documents shall be invalid, illegal or unenforceable, in whole or in part,
in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired
thereby.
SECTION 11.14 INDEPENDENCE OF COVENANTS. All covenants hereunder
shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would
be permitted by an exception to, or be otherwise within the limitation of,
another covenant, shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
SECTION 11.15 CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX
LAWS. If (i) any preparation of the financial statements referred to in
SECTION 7.07 hereafter occasioned by the promulgation of rules,
regulations, pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions)
result in a material change in the method of calculation of financial
covenants, standards or terms found in this Agreement, or (ii) there is a
material change in federal tax laws which materially affects any of the
Consolidated Companies' ability to comply with the financial covenants,
standards or terms found in this Agreement, the parties agree to enter into
negotiations in order to amend such provisions so as to equitably reflect
such changes with the desired result that the criteria for evaluating any
of the Consolidated Companies' financial condition shall be the same after
such changes as if such changes had not been made. Unless and until such
provisions have been so amended, the provisions of this Agreement shall
govern.
SECTION 11.16 CUMULATIVE REMEDIES; NO WAIVER. The rights, powers, and
remedies of the Administrative Agent or any Lender provided herein or in
any other Loan Document are cumulative and not exclusive of any right,
power, or remedy provided by law or equity.
SECTION 11.17 AMENDMENTS; CONSENTS. No amendment, modification,
supplement, termination, or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by the Borrower or
any Subsidiary therefrom, may in any event be effective unless in writing
signed by the Required Lenders, and then only in the specific instance and
for the specific purpose given; and without the approval in writing of each
Lender with respect to its Advances, no amendment, modification,
supplement, termination, waiver, or consent may be effective:
(a) to amend or modify the principal of, or the amount of principal,
principal prepayments, or the rate of interest payable on, any Borrowing or
the amount of any Revolving Loan Commitment or the Masland Bonds (other
than the exercise of the put pursuant to Section 6(c) of the Bond Purchase
Agreement which may be exercised by SunTrust in its sole discretion);
(b) to prospectively postpone any date fixed for any payment of
principal of, prepayment of principal of, or any installment of interest
on, any Borrowing or to extend the term of any Revolving Loan Commitment or
the Masland Bonds; or
(c) to amend or modify the definitions of any "Revolving Loan
Commitment" or "Required Lenders," or of this SECTION 11.17 or SCHEDULE
1.1.
Any amendment, modification, supplement, termination, waiver or consent
effected in accordance with this SECTION 11.17 shall apply equally to, and
shall be binding upon, all Lenders and the Administrative Agent.
SECTION 11.18 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER, THE ADMINISTRATIVE AGENT, THE DOCUMENTATION
AGENT AND THE LENDERS EACH HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY LEGAL PROCEEDINGS ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 11.19 ENTIRE AGREEMENT. This Agreement and the other Credit
Documents executed and delivered contemporaneously herewith, together with
the exhibits and schedules attached hereto and thereto, constitute the
entire understanding of the parties with respect to the subject matter
hereof, and any other prior or contemporaneous agreements, whether written
or oral, with respect thereto including, without limitation, any loan
commitment from the Administrative Agent to the Borrower, are expressly
superseded hereby. The execution of this Agreement and the other Credit
Documents by the Borrower was not based upon any facts or materials
provided by the Administrative Agent or any Lender, nor was the Borrower
induced to execute this Agreement or any other Loan Document by any
representation, statement or analysis made by the Administrative Agent or
any Lender.
[Signatures on following pages]
WITNESS the hand and seal of the parties hereto through their duly
authorized officers, as of the date first above written.
THE XXXXX GROUP, INC.
By: /s/XXXXX X. XXXXX
Xxxxx X. Xxxxx
Vice President and Chief
Financial Officer
By: /s/XXXX X. XXXXXX
Xxxx X. Xxxxxx
Treasurer
Attest: /s/STARR X. XXXXX
Starr X. Xxxxx
Secretary
[CORPORATE SEAL]
Address:
The Xxxxx Group, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SUNTRUST BANK, ATLANTA, as Administrative
Agent
By: /s/XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
By: /s/XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Title: Group Vice President
Address:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
Payment Office:
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
NATIONSBANK, N.A., as Documentation Agent
By: /s/XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SUNTRUST BANK, ATLANTA
By: /s/XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
By: /s/XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Title: Group Vice President
Address:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
NATIONSBANK, N.A.
By: /s/XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/XXXXX X. XXXXXXX, III
Xxxxx X. Xxxxxxx, III
Title: Assistant Vice President
Address:
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, III
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK
By: /s/XXXXX XXXX
Xxxxx Xxxx
Title: Vice President
Address:
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, Senior Vice President
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE CHASE MANHATTAN BANK
By: /s/XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
Title: Vice President
Address:
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
LIST OF OMITTED EXHIBITS AND SCHEDULES
Exhibit A - Form of Assignment and Acceptance
Exhibit C - Form of Subsidiary Guaranty Agreement
Exhibit F - Borrower's Counsel Opinion
Exhibit G - Form of Closing Certificate
Exhibit H - Officer's Compliance Certificate
Schedule 1.1 - Commitments
Schedule 6.01 - Subsidiaries
Schedule 6.05 - Litigation
Schedule 6.08 - Environmental Matters
Schedule 6.11 - Burdensome Restrictions
Schedule 6.12 - Taxes
Schedule 6.13 - Material Subsidiaries
Schedule 6.15 - ERISA Matters
Schedule 6.16 - Intellectual Property
Schedule 6.18 - Existing Debt
Schedule 6.20 - Intercompany Advances
Schedule 6.21 - Labor Matters
Schedule 6.22 - Payment and Dividend Restrictions
Schedule 8.01 - Liens
Schedule 8.03 - Investments
EXHIBIT B
FORM OF REVOLVING CREDIT NOTE
$ _______________________ March _____, 1998
FOR VALUE RECEIVED, the undersigned THE XXXXX GROUP, INC., a Tennessee
corporation (the "Borrower"), hereby promises to pay to the order of
_________________________, a ____________ banking corporation (the
"Lender"), at the Payment Office of the Administrative Agent as provided in
the Credit Agreement (as hereinafter defined) on the Revolving Loan
Termination Date or sooner should this Note be declared immediately due and
payable as hereafter provided, the principal sum of
__________________________________________ ($________________), or so much
thereof as shall have been advanced hereunder and remain outstanding, plus
all accrued and unpaid interest thereon.
The Borrower agrees to pay interest on the principal amount advanced
hereunder from the date of the advance until paid as provided in the Credit
Agreement dated as of even date herewith among the Borrower, SunTrust Bank,
Atlanta, individually and as Administrative Agent, NationsBank, N.A.,
individually and as Documentation Agent, and the lenders from time to time
party thereto (as amended, modified and supplemented and in effect from
time to time, the "Credit Agreement"). All payments of principal and
interest hereunder shall be made in United States Dollars and in
immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Credit Agreement, to which reference is hereby
made for a statement of said terms and provisions. This Note is entitled
to the benefits and security as provided in the Credit Agreement. Any term
used herein that is defined in the Credit Agreement shall have the meaning
afforded it in the Credit Agreement when used herein.
Upon the occurrence and during the continuation of any Event of
Default, the Revolving Loan Commitment may be terminated and the entire
unpaid principal balance advanced hereunder and all accrued interest may
become immediately due and payable in the manner and with the effect
provided in the Credit Agreement, and the Lender may thereafter exercise
any of the remedies referred to in the Credit Agreement or existing under
applicable law.
This Note may be prepaid in whole or in part on the terms and
provisions set forth in Section 2.10(a) and 4.06 of the Credit Agreement
and is subject to mandatory reduction and prepayment as provided in Section
2.11 of the Credit Agreement.
TIME IS OF THE ESSENCE OF THIS NOTE. In addition and not in
limitation of the foregoing and the provisions of the Credit Agreement, the
Borrower further agrees to pay all expenses of collection, including
reasonable attorneys' fees, if this Note shall be collected by law or
through an attorney at law, or in bankruptcy, receivership or other court
proceedings.
This Note evidences "Senior Indebtedness" as that term is defined in
the notes issued pursuant to the Senior Subordinated Note Agreement and as
defined in the Subordinated Convertible Debentures.
This Note has been delivered in Atlanta, Georgia and shall be governed
by and construed under the laws of Georgia without giving effect to
principles of conflicts of laws.
PRESENTMENT, PROTEST AND NOTICE OF DISHONOR ARE HEREBY WAIVED BY THE
BORROWER.
Executed under hand and seal of the Borrower on the date first above
written.
THE XXXXX GROUP, INC.
By:________________________________
Title:____________________________
Attest:____________________________
Title:____________________________
[CORPORATE SEAL]
EXHIBIT D
FORM OF TERM NOTE
$ _______________________ March _____, 1998
FOR VALUE RECEIVED, the undersigned THE XXXXX GROUP, INC., a Tennessee
corporation (the "Borrower"), hereby promises to pay to the order of
____________________, a _______________ banking corporation (the "Lender"),
at the Payment Office of the Administrative Agent as provided in the Credit
Agreement (as hereinafter defined), the principal sum of
____________________________________________ ($________________), payable
in quarterly installments in accordance with Section 3.02 of the Credit
Agreement, with a final payment due and payable on the Maturity Date, when
all unpaid principal and accrued interest shall be due and payable in full.
In addition to principal, the Borrower agrees to pay interest on the
outstanding principal balance from the date funds are advanced until paid
at the interest rates as provided in the Credit Agreement dated as of even
date herewith among the Borrower, SunTrust Bank, Atlanta, individually and
as Administrative Agent, NationsBank, N.A., individually and as
Documentation Agent and the lenders from time to time party thereto (as
amended, modified and supplemented and in effect from time to time, the
"Credit Agreement"). All payments of principal and interest hereunder
shall be made in United States dollars and in immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Credit Agreement, to which reference is hereby
made for a statement of said terms and provisions. This Note is entitled
to the benefits and security as provided in the Credit Agreement. Any term
used herein that is defined in the Credit Agreement shall have the meaning
afforded it in the Credit Agreement when used herein.
Upon the occurrence and during the continuation of any Event of
Default as provided in the Credit Agreement, the Term Loan Commitment of
the Lender may be terminated and the entire unpaid principal amount hereof
and all accrued interest thereon may become immediately due and payable in
the manner and with the effect provided in the Credit Agreement, and Lender
may thereafter exercise any of the remedies referred to in the Credit
Agreement or existing under applicable law.
This Note may be voluntarily prepaid in whole or in part on the terms
and provisions set forth in Section 4.06 of the Credit Agreement and is
subject to mandatory prepayment as provided in Section 3.03 of the Credit
Agreement.
TIME IS OF THE ESSENCE OF THIS CONTRACT. In addition and not in
limitation of the foregoing and the provisions of the Credit Agreement, the
Borrower further agrees to pay all expenses of collection, including
reasonable attorneys' fees, if this Note shall be collected by law or
through an attorney at law, or in bankruptcy, receivership or other court
proceedings.
This Note evidences "Senior Indebtedness" as that term is defined in
the notes issued pursuant to the Senior Subordinated Note Agreement and as
defined in the Subordinated Convertible Debentures.
This Note has been delivered in Atlanta, Georgia and shall be governed
by and construed under the laws of Georgia without giving effect to
principles of conflicts of laws.
PRESENTMENT, PROTEST AND NOTICE OF DISHONOR ARE HEREBY WAIVED BY THE
BORROWER.
Executed under hand and seal of the Borrower on the date first above
written.
THE XXXXX GROUP, INC.
By:________________________________
Title:____________________________
Attest:____________________________
Title:____________________________
[CORPORATE SEAL]
EXHIBIT E
FORM OF SWING LINE NOTE
$ _______________________ March _____, 1998
FOR VALUE RECEIVED, the undersigned THE XXXXX GROUP, INC., a Tennessee
corporation (the "Borrower"), hereby promises to pay to the order of
_________________________, a ____________ banking corporation (the "Swing
Line Lender"), at the Payment Office of the Administrative Agent as
provided in the Credit Agreement (as hereinafter defined) on the Revolving
Loan Termination Date or sooner should this Note be declared immediately
due and payable as hereafter provided, the principal sum of
___________________________________________ ($________________), or so much
thereof as shall have been advanced hereunder and remain outstanding, plus
all accrued and unpaid interest thereon.
The Borrower agrees to pay interest on the principal amount advanced
hereunder from the date of the advance until paid as provided in the Credit
Agreement dated as of even date herewith among the Borrower, SunTrust Bank,
Atlanta, individually and as Administrative Agent, NationsBank, N.A.,
individually and as Documentation Agent, and the lenders from time to time
party thereto (as amended, modified and supplemented and in effect from
time to time, the "Credit Agreement"). All payments of principal and
interest hereunder shall be made in United States Dollars and in
immediately available funds.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Credit Agreement, to which Credit Agreement
reference is hereby made for a statement of said terms and provisions.
This Note is entitled to the benefits and security as provided in the
Credit Agreement. Any term used herein that is defined in the Credit
Agreement shall have the meaning afforded it in the Credit Agreement when
used herein.
Upon the occurrence and during the continuation of any Event of
Default, the Swing Line Subcommitment may be terminated and the entire
unpaid principal balance advanced hereunder and all accrued interest may
become immediately due and payable in the manner and with the effect
provided in the Credit Agreement, and the Lender may thereafter exercise
any of the remedies referred to in the Credit Agreement or existing under
applicable law.
This Note may be prepaid in whole or in part on the terms and
provisions set forth in Section 4.06 of the Credit Agreement.
TIME IS OF THE ESSENCE OF THIS NOTE. In addition and not in
limitation of the foregoing and the provisions of the Credit Agreement, the
Borrower further agrees to pay all expenses of collection, including
reasonable attorneys' fees, if this Note shall be collected by law or
through an attorney at law, or in bankruptcy, receivership or other court
proceedings.
This Note evidences "Senior Indebtedness" as that term is defined in
the notes issued pursuant to the Senior Subordinated Note Agreement and as
defined in the Subordinated Convertible Debentures.
This Note has been delivered in Atlanta, Georgia and shall be governed
by and construed under the laws of Georgia without giving effect to
principles of conflicts of laws.
PRESENTMENT, PROTEST AND NOTICE OF DISHONOR ARE HEREBY WAIVED BY THE
BORROWER.
Executed under hand and seal of the Borrower on the date first above
written.
THE XXXXX GROUP, INC.
By:________________________________
Title:____________________________
Attest:____________________________
Title:____________________________
[CORPORATE SEAL]
