1
EXHIBIT (4c)
CREDIT AGREEMENT DATED AS OF OCTOBER 15, 1999 RELATING TO THE
COMPANY'S $250,000,000 REVOLVING LOAN FACILITY
IV-10
2
$250,000,000
CREDIT AGREEMENT
DATED AS OF
OCTOBER 15, 1999
AMONG
XXXXXXX CORPORATION,
XXXXXXX EUROPE LIMITED,
THE BANKS LISTED HEREIN
WACHOVIA BANK, N.A.,
AS ADMINISTRATIVE AGENT
SUNTRUST BANK, ATLANTA,
AS SYNDICATION AGENT
FIRST UNION NATIONAL BANK,
AS DOCUMENTATION AGENT
AND
WACHOVIA SECURITIES, INC.,
AS LEAD ARRANGER
3
TABLE OF CONTENTS
CREDIT AGREEMENT
PAGE
----
ARTICLE I. DEFINITIONS............................................................................................1
SECTION 1.01. DEFINITIONS......................................................................1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.............................................21
SECTION 1.03. REFERENCES......................................................................21
SECTION 1.04. USE OF DEFINED TERMS............................................................22
SECTION 1.05. TERMINOLOGY.....................................................................22
ARTICLE II. THE CREDITS..........................................................................................22
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS............................................22
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS AND SWING LOANS............................25
SECTION 2.03. MONEY MARKET LOANS..............................................................27
SECTION 2.04. CONTINUATION AND CONVERSION ELECTIONS...........................................31
SECTION 2.05. NOTES...........................................................................32
SECTION 2.06. MATURITY OF LOANS...............................................................32
SECTION 2.07. INTEREST RATES..................................................................32
SECTION 2.08. FEES............................................................................35
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS................................36
SECTION 2.10. MANDATORY REDUCTION AND TERMINATION OF COMMITMENTS..............................36
SECTION 2.11. OPTIONAL PREPAYMENTS............................................................36
SECTION 2.12. MANDATORY PREPAYMENTS...........................................................37
4
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS...............................................38
SECTION 2.14. COMPUTATION OF INTEREST AND FEES................................................39
ARTICLE III. CONDITIONS TO BORROWINGS............................................................................40
SECTION 3.01. CONDITIONS TO FIRST BORROWING...................................................40
SECTION 3.02. CONDITIONS TO ALL BORROWINGS....................................................41
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.......................................................................42
SECTION 4.01. CORPORATE EXISTENCE AND POWER...................................................42
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION......................42
SECTION 4.03. BINDING EFFECT..................................................................42
SECTION 4.04. FINANCIAL INFORMATION...........................................................43
SECTION 4.05. NO LITIGATION...................................................................43
SECTION 4.06. COMPLIANCE WITH ERISA...........................................................43
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES..........................................43
SECTION 4.08. SUBSIDIARIES....................................................................44
SECTION 4.09. INVESTMENT COMPANY ACT..........................................................44
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT..............................................44
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS....................................................44
SECTION 4.12. NO DEFAULT......................................................................44
SECTION 4.13. FULL DISCLOSURE.................................................................45
SECTION 4.14. ENVIRONMENTAL MATTERS...........................................................45
SECTION 4.15. CAPITAL STOCK...................................................................45
SECTION 4.16. MARGIN STOCK....................................................................46
SECTION 4.17. INSOLVENCY......................................................................46
ii
5
SECTION 4.18. INSURANCE.......................................................................46
SECTION 4.19. Y2K PLAN........................................................................46
ARTICLE V. COVENANTS.............................................................................................47
SECTION 5.01. INFORMATION.....................................................................47
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS.......................................48
SECTION 5.03. MAINTENANCE OF EXISTENCE........................................................49
SECTION 5.04. DISSOLUTION.....................................................................49
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS.....................................49
SECTION 5.06. USE OF PROCEEDS.................................................................49
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES..........................................50
SECTION 5.08. INSURANCE.......................................................................50
SECTION 5.09. CHANGE IN FISCAL YEAR...........................................................50
SECTION 5.10. MAINTENANCE OF PROPERTY.........................................................50
SECTION 5.11. ENVIRONMENTAL NOTICES...........................................................50
SECTION 5.12. ENVIRONMENTAL MATTERS...........................................................51
SECTION 5.13. ENVIRONMENTAL RELEASE...........................................................51
SECTION 5.14. TRANSACTIONS WITH AFFILIATES....................................................51
SECTION 5.15. RESTRICTED PAYMENTS.............................................................51
SECTION 5.16. INVESTMENTS.....................................................................51
SECTION 5.17. PRIORITY DEBT...................................................................52
SECTION 5.18. RESTRICTIONS ON ABILITY OF SUBSIDIARIES TO PAY DIVIDENDS........................53
SECTION 5.19. LIMITATION ON FUNDED DEBT OF BORROWER...........................................53
SECTION 5.20. DEBT/EBITDA RATIO...............................................................54
iii
6
SECTION 5.21. MINIMUM CONSOLIDATED TANGIBLE NET WORTH.........................................54
SECTION 5.22. RATIO OF CONSOLIDATED EBIT TO CONSOLIDATED INTEREST EXPENSE.....................54
SECTION 5.23. Y2K COMPLIANCE..................................................................54
ARTICLE VI. DEFAULTS.............................................................................................54
SECTION 6.01. EVENTS OF DEFAULT...............................................................54
SECTION 6.02. NOTICE OF DEFAULT...............................................................57
ARTICLE VII. THE ADMINISTRATIVE AGENT............................................................................57
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES..............................................57
SECTION 7.02. RELIANCE BY ADMINISTRATIVE AGENT................................................58
SECTION 7.03. DEFAULTS........................................................................58
SECTION 7.04. RIGHTS OF ADMINISTRATIVE AGENT AND ITS AFFILIATES AS A BANK.....................59
SECTION 7.05. INDEMNIFICATION.................................................................59
SECTION 7.06. CONSEQUENTIAL DAMAGES...........................................................59
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER..................................................60
SECTION 7.08. NONRELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS.............................60
SECTION 7.09. FAILURE TO ACT..................................................................60
SECTION 7.10. RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT..................................60
ARTICLE VIII. CHANGE IN CIRCUMSTANCES; COMPENSATION..............................................................61
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR........................61
SECTION 8.02. ILLEGALITY......................................................................62
iv
7
SECTION 8.03. INCREASED COST AND REDUCED RETURN...............................................62
SECTION 8.04. BASE RATE LOANS OR OTHER FIXED RATE LOANS SUBSTITUTED FOR AFFECTED
FIXED RATE LOANS................................................................63
SECTION 8.05. COMPENSATION....................................................................64
SECTION 8.06. FAILURE TO PAY IN FOREIGN CURRENCY..............................................65
SECTION 8.07. JUDGMENT CURRENCY...............................................................65
SECTION 8.08. REPLACEMENT OF BANKS............................................................65
ARTICLE IX. MISCELLANEOUS........................................................................................66
SECTION 9.01. NOTICES.........................................................................66
SECTION 9.02. NO WAIVERS......................................................................66
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES.....................................................66
SECTION 9.04. INDEMNIFICATION.................................................................67
SECTION 9.05. SETOFF; SHARING OF SETOFFS......................................................67
SECTION 9.06. AMENDMENTS AND WAIVERS..........................................................68
SECTION 9.07. NO MARGIN STOCK COLLATERAL......................................................69
SECTION 9.08. SUCCESSORS AND ASSIGNS..........................................................69
SECTION 9.09. CONFIDENTIALITY.................................................................73
SECTION 9.10. REPRESENTATION BY BANKS.........................................................73
SECTION 9.11. OBLIGATIONS SEVERAL.............................................................73
SECTION 9.12. GEORGIA LAW.....................................................................74
SECTION 9.13. SEVERABILITY....................................................................74
SECTION 9.14. INTEREST........................................................................74
SECTION 9.15. INTERPRETATION..................................................................75
SECTION 9.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION...................................75
v
8
SECTION 9.17. COUNTERPARTS....................................................................75
SECTION 9.18. SOURCE OF FUNDS -- ERISA........................................................75
SECTION 9.19. EUROPEAN ECONOMIC AND MONETARY UNION............................................75
SECTION 9.20. NO BANKRUPTCY PROCEEDINGS.......................................................78
EXHIBIT A-1 Form of Syndicated Dollar Loan Note
EXHIBIT A-2 Form of Swing Loan Note
EXHIBIT A-3 Form of Money Market Loan Note
EXHIBIT A-4 Form of Foreign Currency Loan Note for Xxxxxxx Corporation
EXHIBIT A-5 Form of Foreign Currency Loan Note for Xxxxxxx Europe Limited
EXHIBIT B Form of Opinion of Special Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Administrative Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E-1 Form of Notice of Borrowing
EXHIBIT E-2 Form of Notice of Continuation or Conversion
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate
EXHIBIT I Form of Money Market Quote Request
EXHIBIT J Form of Money Market Quote
EXHIBIT K Form of Designation Agreement
EXHIBIT L Form of Guaranty
Schedule 4.08 Subsidiaries
vi
9
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of October 15, 1999, among XXXXXXX
CORPORATION, XXXXXXX EUROPE LIMITED, the BANKS listed on the signature pages
hereof, WACHOVIA BANK, N.A., as Administrative Agent, SUNTRUST BANK, ATLANTA,
as Syndication Agent and FIRST UNION NATIONAL BANK, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. DEFINITIONS.
The terms as defined in this Section 1.01 shall, for all
purposes of this Agreement and any amendment hereto (except as herein otherwise
expressly provided or unless the context otherwise requires), have the meanings
set forth herein:
"Adjusted IBOR Rate" has the meaning set forth in Section
2.07(e).
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.07(c).
"Administrative Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of America,
in its capacity as agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person
(other than a Subsidiary of the relevant Person) of which the relevant Person
owns, directly or indirectly, 20% or more of the common stock or equivalent
equity interests. As used herein, the term "control" means possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Aggregate Commitments" means at any time the aggregate
amount of the Commitments of all Banks at such time.
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in Section
2.07(a).
10
"Arranger's Letter Agreement" means that certain letter
agreement, dated as of August 27, 1999, between the Borrower and Wachovia
Securities, Inc., as Lead Arranger, relating to the structure of the Loans, and
certain fees from time to time payable by the Borrower to Wachovia Securities,
Inc., as arranger, and to the Administrative Agent, together with all
amendments and supplements thereto.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.08(c) in the form attached
hereto as Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof
as having a Commitment, and its successors and permitted assigns and the
Designated Banks, if any; provided, however, that the term "Bank" shall exclude
each Designated Bank when used in reference to a Syndicated Loan, the
Commitments or terms relating to the Syndicated Loans (except as noted above)
and the Commitments.
"Base Rate" means for any Base Rate Loan for any day, the
rate per annum equal to the higher as of such day of (i) the Prime Rate, or
(ii) one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate, and is to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, Notice of Continuation or
Conversion, Section 2.02(f), or Article VIII, as applicable.
"Borrower" means (i) Xxxxxxx Corporation, an Alabama
corporation, and its successors and its permitted assigns and, (ii) only in
connection with Foreign Currency Borrowings and Foreign Currency Loans, means
either or both, as the context shall require, of Xxxxxxx Corporation and
Xxxxxxx Europe Limited (or, after the completion of the European Reorganization
and the assignment by Xxxxxxx Europe Limited to the New European Headquarters
Subsidiary pursuant to Section 9.08(a) in connection therewith, the New
European Headquarters Subsidiary), it being understood and agreed that either
Xxxxxxx Corporation or Xxxxxxx Europe Limited (or the New European Headquarters
Subsidiary, as applicable), or a both of them (as to different Foreign Currency
Borrowings), may borrow Foreign Currency Loans within the limits set forth in
Section 2.01(a), but Xxxxxxx Europe Limited (or the New European Headquarters
Subsidiary, as applicable) shall have liability only for Foreign Currency Loans
borrowed by it, and shall have no liability on any Foreign Currency Loans,
Syndicated Dollar Loans or Swing Loans made to Xxxxxxx Corporation.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower (i) at the same time by all of the Banks, in the case of a
Syndicated Borrowing, or (ii) separately by one or more Banks, in the case of a
Money Market Borrowing, in each case
2
11
pursuant to Article II or (iii) by Wachovia, for Swing Loans. A Borrowing is a
"Money Market Borrowing" if such Loans are made pursuant to Section 2.03, a
"Syndicated Borrowing" if such Loans are made pursuant to Section 2.01(a), or a
"Swing Loan Borrowing" if such Loan is made pursuant to Section 2.01(b). A
Borrowing is a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans, or
a "Base Rate Borrowing" if such Loans are Base Rate Loans, or a "Transaction
Rate Borrowing" if such Loans are Transaction Rate Loans.. A Borrowing is a
"Dollar Borrowing" if such Loans are Base Rate Loans, Euro-Dollar Loans or
Money Market Loans. A Borrowing is a "Foreign Currency Borrowing" if such Loans
are Foreign Currency Loans.
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means October 15, 1999.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor Federal tax code.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, and
(ii)as to any Bank which enters into any Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's
Commitment after giving effect to such Assignment and Acceptance, in each case
as such amount may be reduced from time to time pursuant to Sections 2.09 and
2.10.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated EBIT" means at any time the sum of the
following, determined on a consolidated basis for the Borrower and its
Consolidated Subsidiaries, at the end of each Fiscal Quarter, for the Fiscal
Quarter just ended and the 3 immediately preceding Fiscal Quarters: (i)
Consolidated Net Income; plus (ii) Consolidated Net Interest Expense; plus
(iii) taxes on income; and (iv) all Restructuring Charges.
"Consolidated EBITDA" means at any time the sum of the
following, determined on a consolidated basis for the Borrower and its
Consolidated Subsidiaries, at the end of each Fiscal Quarter, for the Fiscal
Quarter just ended and the 3 immediately preceding Fiscal Quarters
3
12
(and with respect to any acquisition which is made during such 4 Fiscal Quarter
Period, the Consolidated Subsidiary acquired in such acquisition shall be
included as if it had been a Consolidated Subsidiary prior to the commencement
of such 4 Fiscal Quarter Period): (i) Consolidated EBIT; plus (ii)
depreciation; plus (iii) amortization; plus (iv) other non-cash charges without
duplication of Restructuring Charges.
"Consolidated Interest Expense" for any period means (i)
interest, whether expensed or capitalized (but in the case of capitalization,
limited to the portion of capitalized interest allocable to such period), in
respect of Debt of the Borrower or any of its Consolidated Subsidiaries
outstanding during such period and (ii) all program expenses payable under a
Receivables Securitization Program.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any equity
interests of the Borrower or any Consolidated Subsidiary in the unremitted
earnings or losses of any Person that is not a Consolidated Subsidiary during
such period.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Consolidated Tangible Net Worth" means, at any time,
Stockholders' Equity, less the sum of the value, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of:
(a) Any surplus resulting from any write-up of assets
subsequent to July 4, 1999;
(b) All assets which would be treated as intangible
assets for balance sheet presentation purposes under GAAP, including
without limitation goodwill (whether representing the excess of cost
over book value of assets acquired, or otherwise), trademarks,
tradenames, copyrights, patents and technologies, and unamortized debt
discount and expense;
(c) To the extent not included in (b) of this
definition, any amount at which shares of Capital Stock of the
Borrower appear as an asset on the balance sheet of the Borrower and
its Consolidated Subsidiaries; and
(d) Loans or advances to stockholders, directors,
officers or employees, except (1) for relocation expenses in
connection with the Restructuring Program and (2) for other purposes
not exceeding $3,000,000 in the aggregate principal amount
4
13
outstanding at any time, in each case made in the ordinary course of
business in accordance with historical practices existing on the
Closing Date.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Consolidated Total Debt" means at any date, without
duplication, the sum of the following, determined on a consolidated basis for
the Borrower and its Consolidated Subsidiaries: (i) all Debt of the types
described in clauses (i), (ii), (iii), (iv), (vi) and (x) of the definition of
Debt, and (ii) all Debt of the type described in clause (xi) of the definition
of Debt, insofar as it relates to Debt of the types included in clause (i) of
this definition.
"Contributed Receivables" means Receivables which are
contributed to the Receivables Subsidiary as equity Investments therein
pursuant to a Receivables Securitization Program.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money (including, without
limitation the principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP), (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services, except trade
accounts payable arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases, (v) all obligations
of such Person to reimburse any bank or other Person in respect of amounts
payable under a banker's acceptance, (vi) all Redeemable Preferred Stock of
such Person (in the event such Person is a corporation), (vii) all obligations
of such Person to reimburse any bank or other Person in respect of amounts paid
or to be paid under a letter of credit or similar instrument, (viii) all Debt
of others secured by a Lien on any asset of such Person, whether or not such
Debt is assumed by such Person, (ix) all net obligations of such Person with
respect to interest rate protection agreements, foreign currency exchange
agreements or other hedging arrangements (valued as the termination value
thereof computed in accordance with a method approved by the International Swap
Dealers Association and agreed to by such Person in the applicable hedging
agreement, if any), (x) all principal amounts outstanding and owed to parties
other than the Borrower or any Subsidiary under the items described in clause
(a) of the definition of Receivables Program Obligations, (xi) all Debt of
others Guaranteed by such Person (including, without limitation, the Debt of
any partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer, other than non-recourse Debt of such
partnership or unincorporated joint venture).
5
14
"Debt/EBITDA Ratio" means at any time the ratio of (i)
Consolidated Total Debt to (ii) Consolidated EBITDA.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Designated Bank" means a special purpose corporation owned
and controlled by its Designating Bank that is identified as such on the
signature pages hereto next to the caption "Designated Bank" as well as each
special purpose corporation owned and controlled by its Designating Bank that
(i) shall have become a party to this Agreement pursuant to Section 9.08(g),
and (ii) is not otherwise a Bank.
"Designated Bank Note" means a Money Market Loan Note,
evidencing the obligation of the Borrower to repay Money Market Loans made by a
Designated Bank, and "Designated Bank Notes" means any all such Money Market
Loan Notes to Designated Banks issued hereunder.
"Designating Bank" shall mean each Bank that is identified as
such on the signature pages hereto next to the caption "Designating Bank" and
immediately below the signature of its Designated Bank as well as each Bank
that shall designate a Designated Bank pursuant to Section 9.08(g).
"Designation Agreement" means a designation agreement in
substantially the form of Exhibit K attached hereto, entered into by a Bank and
a Designated Bank and acknowledged by the Borrower and the Administrative
Agent.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Dollar Equivalent" means the Dollar equivalent of the amount
of a Foreign Currency Loan, determined by the Administrative Agent on the basis
of its spot rate for the purchase of the appropriate Foreign Currency with
Dollars.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
6
15
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from any Environmental Requirements, whether or not
entered upon consent, or written agreements with an Environmental Authority or
other entity arising from or in any way associated with any Environmental
Requirement, whether or not incorporated in a judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority or from any other person or entity for correction of
any violation of any Environmental Requirement or any investigations concerning
any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Subsidiary or the Properties under CERCLA or similar state legislation and
all federal, state and local laws, ordinances, regulations, orders, writs,
decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro" has the meaning set forth in Section 9.19.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Adjusted London Interbank Offered Rate, and
to be made as a Euro-Dollar Loan pursuant to the applicable Notice of Borrowing
or Notice of Continuation or Conversion.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
7
16
"European Reorganization" means the reorganization of
European Subsidiaries of Xxxxxxx Corporation, currently contemplated to be
publically announced in October, 1999, which is anticipated to consist of the
following: (i) the formation by Xxxxxxx Corporation, for a minimal
capitalization, of new European based Subsidiaries (it is currently
contemplated that there may be 3 new such Subsidiaries, one to serve as the
European headquarters for the European operations (the "New European
Headquarters Subsidiary"), one to be the service company for the European
operations and one to own the intellectual property pertaining to the European
operations, but the exact number and specific locations in Europe of such
Subsidiaries have not yet been determined); (ii) the transfer by Xxxxxxx
Corporation and certain existing European Subsidiaries of certain of their
assets pertaining to the European operations to the new European Subsidiaries,
as appropriate, consistent with their intended purpose and function; and (iii)
the assignment by Xxxxxxx Europe Limited to the New European Headquarters
Subsidiary, and the assumption by the New European Headquarters Subsidiary, of
all rights and obligations of Xxxxxxx European Limited under this Agreement and
the Notes and other Loan Documents executed by Xxxxxxx Europe Limited, as more
specifically authorized in Section 9.08(a).
"Excluded Receivables" means all Receivables other than
Purchased Receivables and Contributed Receivables.
"Excluded Receivables Assets" means (i) all goods of the
Borrower and each of the Subsidiaries held for sale or lease or to be furnished
under a contract of service (including raw materials, work in process, finished
goods and materials used or consumed in the manufacture or production thereof),
goods that are returned to or repossessed, and all accessions thereto and
products thereof and documents therefor (collectively, "Inventory"), other than
returned goods, if any, relating to the sale that gave rise to any Receivables
which are included in the Receivables Program Related Assets ("Related Returned
Goods"); (ii) Excluded Receivables; and (iii) any Receivables or other proceeds
of Inventory created or arising (x) after an Event of Default specified in (g)
or (h) of Section 6.01 (other than proceeds of Related Returned Goods), or (y)
after termination of purchases under the Receivables Securitization Program
Agreement.
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Administrative Agent
on such day on such transactions, as reasonably determined by the
Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
8
17
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing, a Money
Market Borrowing, a Foreign Currency Borrowing or a Transaction Rate Borrowing,
or any one, or more, or all of them, as the context shall require.
"Fixed Rate Loans" means Euro-Dollar Loans, Money Market
Loans, Foreign Currency Loans or Transaction Rate Loans, or any one, or more,
or all of them, as the context shall require.
"Foreign Currencies" means, individually and collectively, as
the context shall require, each of the following, if offered and subject to
availability, and subject to the provisions of Section 9.19 (i) euros (which,
during the transitional period, may be in an amount determined by reference to
a national currency unit of a participating member state), (ii) British pounds
sterling and (iii) at the option of the Banks, any other currency which is
freely transferable and convertible into Dollars; provided, however, that no
such other currency under this clause (iii) shall be included as a Foreign
Currency hereunder, or included in a Notice of Borrowing, unless (x) a Borrower
has first submitted a request to the Administrative Agent and the Banks that it
be so included, and (y) the Administrative Agent and the Banks, in their sole
discretion, have agreed to such request.
"Foreign Currency Borrowing" has the meaning set forth in the
definition of "Borrowing."
"Foreign Currency Business Day" shall mean any Domestic
Business Day, excluding one on which trading is not carried on by and between
banks in deposits of the applicable Foreign Currency in the applicable
interbank market for such Foreign Currency.
"Foreign Currency Loan" means a Loan to be made as a Foreign
Currency Loan pursuant to the applicable Notice of Borrowing, and such term
shall include, individually and collectively, as the context shall require,
such Loans to Xxxxxxx Corporation and to Xxxxxxx Europe Limited (or, after the
completion of the European Reorganization and the assignment by Xxxxxxx Europe
Limited to the New European Headquarters Subsidiary pursuant to Section 9.08(a)
in connection therewith, the New European Headquarters Subsidiary).
"Foreign Currency Loan Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A-4, as to Xxxxxxx Corporation,
and Exhibit A-5, as to Xxxxxxx Europe Limited (or, after the completion of the
European Reorganization and the assignment by Xxxxxxx Europe Limited to the New
European Headquarters Subsidiary pursuant to Section 9.08(a) in connection
therewith, the New European Headquarters Subsidiary), evidencing the obligation
of the Borrower to repay the Foreign Currency Loans, together with all
amendments, consolidations, modifications, renewals and supplements thereto.
"Funded Debt" has the meaning set forth in Section 5.19.
9
18
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay, or advance or supply funds for the
purchase or payment of, such Debt or other obligation, whether arising by
virtue of partnership arrangements (including, without limitation, arising
solely by virtue of the status of being a general partner in a partnership or
participating as a joint venturer in a joint venture), by agreement to
keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise, or (ii) entered into for the purpose of assuring in
any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guaranty" means the Guaranty Agreement in substantially the
form of Exhibit L to be executed by Xxxxxxx Corporation pursuant to Section
3.01, unconditionally Guaranteeing payment of the Foreign Currency Loans made
to and the Foreign Currency Loan Note made by Xxxxxxx Europe Limited (or, after
the completion of the European Reorganization and the assignment by Xxxxxxx
Europe Limited to the New European Headquarters Subsidiary pursuant to Section
9.08(a) in connection therewith, the New European Headquarters Subsidiary).
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or
in any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976,
or in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"IBOR" has the meaning set forth in Section 2.05(e).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing and Foreign Currency Borrowing, the period commencing on the date of
such Borrowing and ending on the numerically corresponding day in the first,
second, third or sixth month thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c) below)
which would otherwise end on a day which is not a Euro-Dollar Business
Day or Foreign Currency
10
19
Business Day shall be extended to the next succeeding Euro-Dollar
Business Day or Foreign Currency Business Day, as the case may be,
unless such Euro-Dollar Business Day or Foreign Currency Business Day,
as the case may be, falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar
Business Day or Foreign Currency Business Day, as the case may be;
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the appropriate subsequent
calendar month) shall, subject to paragraph (c) below, end on the last
Euro-Dollar Business Day of the appropriate subsequent calendar month;
and
(c) no Interest Period may be selected which begins
before the Termination Date and would otherwise end after the
Termination Date;
(2) with respect to each Money Market Borrowing, the period
commencing on the date of such Borrowing and ending on the Stated Maturity Date
or such other date or dates as may be specified in the applicable Money Market
Quote; provided that:
(a) any Interest Period (subject to clause (b) below)
which would otherwise end on a day which is not a Domestic Business
Day shall be extended to the next succeeding Domestic Business Day;
and
(b) no Interest Period may be selected which begins
before the Termination Date and would otherwise end after the
Termination Date; and
(3) with respect to each Transaction Rate Borrowing, any period
up to 14 days mutually agreeable to the Borrower and Wachovia which ends on or
prior to the Termination Date.
"Investment" means any investment in any Person, whether by
means of (i) purchase or acquisition of all or substantially all of the assets
of such Person (or of a division or line of business of such Person),
including, without limitation, any Permitted Acquisition, (ii) purchase or
acquisition of obligations or securities of such Person, including, without
limitation, any Permitted Acquisition, (iii) capital contribution to such
Person, (iv) loan or advance to such Person, (v) making of a time deposit with
such Person, (vi) Guarantee or assumption of any obligation of such Person or
(vii) by any other means, but excluding (x) trade advances in the ordinary
course of the Borrower's business in accordance with historical practices
existing on the Closing Date and (y) special extensions or renewals of credit
made in accordance with the Borrower's credit policies to customers in troubled
financial condition in order to maximize the Borrower's anticipated recovery or
to protect a strategic source of supply or market.
"Lending Office" means, as to each Bank, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Administrative Agent. Each Bank may designate a Lending Office for Syndicated
Dollar Loans and a different Lending Office for Foreign Currency Loans, and the
11
20
term "Lending Office" shall in such case mean either such Lending Office, as
the context shall require.
"Lien" means, with respect to any asset, any mortgage, deed
to secure debt, deed of trust, lien, pledge, charge, security interest,
security title, preferential arrangement which has the practical effect of
constituting a security interest or encumbrance, or encumbrance or servitude of
any kind in respect of such asset to secure or assure payment of a Debt or a
Guarantee, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Liquidity Bank" means for any Designated Bank, at any date
of determination, the collective reference to the financial institutions which
at such date are providing liquidity or credit support facilities to or for the
account of such Designated Bank to fund such Designated Bank's obligations
hereunder or to support the securities, if any, issued by such Designated Bank
to fund such obligations.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Syndicated
Dollar Loan, Foreign Currency Loan, Swing Loan, Transaction Rate Loan or Money
Market Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans, Syndicated
Dollar Loans, Foreign Currency Loans, Swing Loans, Transaction Rate Loans,
Money Market Loans, or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, any other document evidencing, relating to or securing the Loans
delivered by or on behalf of the Borrower, and any other document or instrument
delivered by or on behalf of the Borrower from time to time in connection with
this Agreement, the Notes or the Loans, as such documents and instruments may
be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition, occurrence, cost or expenses of whatever nature (including any
adverse determination in any litigation, arbitration, or governmental
investigation or proceeding, but not including any event, act, condition,
occurrence, cost or expense arising out of or relating to (i) the case styled
Xxxxxxxx, et al. x. Xxxxxxx Corporation, et al., including, without limitation,
the jury verdict rendered against the Borrower and other defendants and related
awards to the plaintiffs for compensatory and punitive damages in such case on
November 17, 1998 or (ii) the Restructuring Program or the Restructuring
Charges), whether singly or in conjunction with any other event or events, act
or acts, condition or conditions, occurrence, occurrences, costs or expenses,
whether or not related, a material adverse change in, or a material adverse
effect upon, any of (a) the financial condition, operations, business,
properties or prospects of the Borrower and its
12
21
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or the Banks against the Borrower under the Loan
Documents, or the ability of the Borrower to perform its obligations under the
Loan Documents to which it is a party, as applicable, or (c) the legality,
validity or enforceability of any Loan Document against the Borrower.
"Mission Critical Systems and Equipment" means the Borrower's
and its Subsidiaries' hardware and software systems, and equipment relating to
the operation of its business and its general business plan, including, without
limitation, equipment in addition to computers, and with respect to which, the
failure to properly function would have a Material Adverse Effect.
"Money Market Borrowing Date" has the meaning specified in
Section 2.03(c)(i).
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-3, evidencing the obligation
of the Borrower to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Quote" has the meaning specified in Section
2.03.
"Money Market Quote Request" has the meaning specified in
Section 2.03(b).
"Money Market Rate" has the meaning specified in Section
2.03(c)(ii)(C).
"Moody's" means Xxxxx'x Investor Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"National Currency Unit" has the meaning set forth in Section
9.19.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such
period, as determined in accordance with GAAP.
"New European Headquarters Subsidiary" has the meaning
specified in the definition of "European Reorganization".
"Notes" means each of the Syndicated Dollar Loan Notes ,
Swing Loan Note or Money Market Loan Notes, or any or all of them, as the
context shall require.
"Notice of Borrowing" has the meaning set forth in Section
2.02(a).
"Notice of Continuation or Conversion" has the meaning set
forth in Section 2.04.
13
22
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.07(a).
"Permitted Acquisition" means the purchase or acquisition of
all or substantially all of the assets of such Person (or of a division or line
of business of such Person), or purchase or acquisition of all or substantially
all of the obligations or securities of such Person, if such acquisition is (i)
non-hostile; (ii) of a Person engaged in, or assets used in, the design,
manufacture, distribution or marketing of textiles or apparel; (iii) in
pro-forma compliance with all terms of this Agreement, after giving effect to
such acquisition; and (iv) limited in any Fiscal Year as to consideration
payable in cash and/or debt (but with no limit as to Capital Stock issued as
consideration) to 10% of Consolidated Tangible Net Worth as of the end of the
most recently completed Fiscal Year as of the time of the acquisition.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an unincorporated association, a trust or any other
entity or organization, including, but not limited to, a government or
political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a
member of the Controlled Group for employees of any member of the Controlled
Group or (ii) maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an obligation
to make contributions or has within the preceding 5 plan years made
contributions.
"Prime Rate" refers to that interest rate so denominated, set
and published by Wachovia from time to time as an interest rate basis for
borrowings. The Prime Rate is but one of several interest rate bases used by
Wachovia. Wachovia lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Purchase Money Note" means a promissory note evidencing the
obligation of the Receivables Subsidiary to pay to the Borrower or any of its
Subsidiaries the purchase price for Purchased Receivables in connection with
the Receivables Securitization Program, which note
14
23
shall be repaid from cash available to the Receivables Subsidiary, other than
cash required to be held as reserves pursuant to Receivables Program Documents,
amounts paid in respect of interest, principal and other amounts owing under
Receivables Program Documents and amounts paid in connection with the purchase
of additional Receivables.
"Purchased Receivables" means Receivables which are actually
purchased pursuant to the Receivables Program Documents, for a purchase price
determined pursuant thereto.
"Quarterly Payment Date" means each March 31, June 30,
September 30 and December 31, or, if any such day is not a Domestic Business
Day, the next succeeding Domestic Business Day.
"Receivables" means all rights of the Borrower or its
Subsidiaries to payment, whether constituting an account, chattel paper,
instrument, general intangible or otherwise, arising from the sale of goods or
services (including rights under xxxx and hold arrangements) by the Borrower or
its Subsidiary (and including the right to payment of any interest or finance
charges and other obligations with respect thereto).
"Receivables Program Assets" means (a) all Purchased
Receivables and Contributed Receivables transferred by the Borrower or its
Subsidiaries (including the Receivables Subsidiary) pursuant to the Receivables
Program Documents; provided, however, that the term "Receivables Program
Assets" shall not include any Excluded Receivables Assets, (b) all Receivables
Program Related Assets, and (c) all collections (including recoveries) and
other proceeds of the assets described in the foregoing clauses (a) and (b).
"Receivables Program Documents" means (a) a receivables
purchase agreement, pooling and servicing agreement, credit agreement,
agreements to acquire undivided interests or other agreement to transfer, or
create a security interest in, Receivables Program Assets, in each case as
amended, modified, supplemented or restated and in effect from time to time
entered into by the Borrower and/or its Subsidiaries (including the Receivables
Subsidiary), and (b) each other instrument, agreement and other document
entered into by the Borrower or its Subsidiaries (including the Receivables
Subsidiary) relating to the transactions contemplated by the items referred to
in clause (a) above, in each case as amended, modified, supplemented or
restated and in effect from time to time.
"Receivables Program Obligations" means (a) notes, trust
certificates, undivided interests, partnership interests or other interests
representing the right to be paid a specified principal amount from the
Receivables Program Assets, and (b) related obligations of the Borrower and/or
its Subsidiaries (including, without limitation, rights in respect of interest
or yield, breach of warranty claims and expense reimbursement and indemnity
provisions) and other Standard Securitization Undertakings.
"Receivables Program Related Assets" means, with respect to
Purchased Receivables and Contributed Receivables (but not Excluded
Receivables), (i) rights of the seller or contributor thereof under the
documentation governing or relating to such Receivables,
15
24
including all contracts pursuant to which any account party or other party is
obligated to make payment on any such Receivable, and all related purchase
orders, invoices and other agreements, documents, books, records and other
media for the storage of information (including tapes, disks, punch cards,
computer programs and databases and related property), (ii) all of the right,
title and interest of the seller or contributor thereof in the goods, if any,
relating to the sale that gave rise to such Receivable, all other security
interests or liens and property subject thereto from time to time purporting to
secure payment of such Receivable, whether pursuant to the contract described
in clause (i) or otherwise, and all letters of credit, guarantees and other
agreements or arrangements of whatever character from time to time supporting
or securing payment of such Receivable, whether pursuant to the contract
described in clause (i) or otherwise and (iii) all proceeds of all of the
foregoing, including all funds received by any Person in payment of any amounts
owed (including invoice prices, finance charges, interest and all other
charges, if any) in respect thereof or otherwise applied to repay or discharge
any such Receivable (including insurance payments applied in the ordinary
course of business to amounts owed in respect of such Receivable and net
proceeds of any sale or other disposition of repossessed goods that were the
subject of any such Receivable) or other collateral or property of the account
party or other party directly or indirectly liable for payment of such
Receivables, and any lockboxes or accounts in which such proceeds are
deposited, (iv) all spread accounts and other similar accounts (and any amount
on deposit therein) established in connection with the Receivables
Securitization Program and (v) any warranty, indemnity, dilution and other
intercompany claim arising out of Receivables Program Documents.
"Receivables Securitization Program" means any transaction or
series of transactions that may be entered into by the Borrower and its
Subsidiaries pursuant to which the Borrower and/or its Subsidiaries may sell,
convey or otherwise transfer to the Receivables Subsidiary and (in the case of
a transfer by the Receivables Subsidiary) any other Person, or may grant a
security interest in, any Receivables Program Assets (whether now existing or
arising in the future); provided that:
(a) no portion of the indebtedness or any other
obligations (contingent or otherwise) of a Receivables Subsidiary or
Special Purpose Vehicle (i) is guaranteed by the Borrower or its
Subsidiaries (other than the Receivables Subsidiary and excluding
guarantees of obligations pursuant to Standard Securitization
Undertakings), (ii) is recourse to or obligates the Borrower or its
Subsidiaries (other than the Receivables Subsidiary) for payment other
than pursuant to Standard Securitization Undertakings or (iii)
subjects any property or asset of the Borrower or its Subsidiaries
(other than the Receivables Subsidiary), directly or indirectly,
contingently or otherwise, to the satisfaction of obligations incurred
in such transactions, other than pursuant to Standard Securitization
Undertakings;
(b) the Borrower and its Subsidiaries (other than the
Receivables Subsidiary) do not have any obligation to maintain or
preserve the financial condition of a Receivables Subsidiary or a
Special Purpose Vehicle or cause such entity to achieve certain levels
of operating results;
16
25
(c) the net purchase price payable to the Borrower or
Subsidiary with respect to Purchased Receivables thereunder (net of
all reserves, discounts, fees and charges) is not less than 75% of the
face amount of the Purchased Receivables; and
(d) the scheduled maturity of any Receivables Program
Obligations of the type described in clause (a) of the definition of
"Receivables Program Obligations" is no earlier than the scheduled
Termination Date.
"Receivables Subsidiary" means a special purpose corporation
that is a direct or indirect wholly owned subsidiary of the Borrower, created
for the sole purpose of, and whose only business shall be, acquisition of the
Receivables Program Assets pursuant to the Receivables Securitization Program
and those activities incidental to the Receivables Securitization Program.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior to the
Termination Date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day
on which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is
being converted to a Fixed Rate Borrowing, if and to the extent that the
proceeds thereof are used for the purpose of paying such maturing Loan or Loan
being converted, excluding any difference between the amount of such maturing
Loan or Loan being converted and any greater amount being borrowed on such day
and actually either being made available to the Borrower pursuant to Section
2.02(c) or remitted to the Administrative Agent as provided in Section 2.13, in
each case as contemplated in Section 2.02(d).
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
17
26
"Related Fund" means, with respect to any Bank that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Bank.
"Reported Net Income" means, for any period, the Net Income
of the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis.
"Required Banks" means at any time Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments are no longer
in effect, Banks holding at least 51% of the aggregate outstanding principal
amount of the sum of the (i) Syndicated Loans and (ii) Money Market Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except dividends
payable in shares of its Capital Stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition by the Borrower of (a) any
shares of the Borrower's Capital Stock (except shares acquired upon the
conversion thereof into other shares of its Capital Stock) or (b) any option,
warrant or other right to acquire shares of the Borrower's Capital Stock.
"Restructuring Charges" means any and all restructuring,
relocation and other unusual charges incurred in connection with the
Restructuring Program in Fiscal Years 1998 through 2001, not exceeding, on a
pre-tax basis, (i) $61,078,000 in the third Fiscal Quarter of Fiscal Year 1998,
(ii) $13,929,000 in the fourth Fiscal Quarter of Fiscal Year 1998, (iii)
$26,900,800 in the first Fiscal Quarter of Fiscal Year 1999, (iv) $4,374,500 in
the second Fiscal Quarter of Fiscal Year 1999 and (v) an aggregate of
$102,026,000 in the period from and including the third Fiscal Quarter of
Fiscal Year 1999 through the end of Fiscal Year 2001; and in any event the
aggregate of all such charges on an after-tax basis shall not exceed
$125,000,000.
"Restructuring Program" means the restructuring program and
related plans, including the establishment of a dual corporate headquarters,
publicly announced by the Borrower on July 22, 1998.
"Reuters Screen" shall mean, when used in connection with any
designated page and the London Interbank Offered Rate or IBOR, the display page
so designated on the Reuters Monitor Money Rates Service (or such other page as
may replace that page on that service for the purpose of displaying rates
comparable to the London Interbank Offered Rate or IBOR).
"Xxxxxxx Family" means, collectively,
(a) the lineal descendants (including Persons who have
been legally adopted by a lineal descendant) and the spouses of lineal
descendants of Xxxxxxxx Xxxxxxx (founder of the Borrower); and
(b) the Xxxxxxxx and Xxxxxxx Xxxxxxx Foundation,
Incorporated; and
18
27
(c) any trust directly or indirectly controlled by, or
for the benefit of, one or more of such Persons described in clause (a) above
or directly or indirectly controlled by any corporation or partnership
described in clause (d) below; and
(d) any corporation or partnership in which voting
control as to such entity is held, directly or indirectly, by any one or more
of the Persons described in clause (a) above or by such trusts described in
clause (c) above; and
(e) any Person acting as the executor or administrator
of the estate or other legal representative of any Person described in clause
(a) above.
"S&P" means Standard & Poor's Rating Group, a division of
XxXxxx-Xxxx, Inc.
"Special Purpose Vehicle" means a trust, partnership or other
special purpose Person established by the Borrower to implement the Receivables
Securitization Program.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or its
Subsidiaries (other than the Receivables Subsidiary) that are reasonably
customary in accounts receivable securitization transactions, as reasonably
determined in good faith by the Administrative Agent.
"Stated Maturity Date" means, with respect to any Money
Market Loan, the Stated Maturity Date therefor specified by the Bank in the
applicable Money Market Quote.
"Stockholders' Equity" means, at any time, the shareholders'
equity of the Borrower and its Consolidated Subsidiaries, as set forth or
reflected on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower or any of its Consolidated
Subsidiaries. Shareholders' equity generally would include, but not be limited
to (i) the par or stated value of all outstanding Capital Stock, (ii) capital
surplus, (iii) retained earnings, and (iv) various deductions such as (A)
purchases of treasury stock, (B) valuation allowances, (C) receivables due from
an employee stock ownership plan, (D) employee stock ownership plan debt
guarantees, and (E) translation adjustments for foreign currency transactions.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower.
"Swing Loan" means a Loan made by Wachovia pursuant to
Section 2.01(b), which must be a Base Rate Loan or a Transaction Rate Loan.
"Swing Loan Note" means the promissory note of the Borrower,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrower to repay the Swing Loans, together with all amendments,
consolidations, modifications, renewals, and supplements thereto.
19
28
"Syndicated Dollar Loan Notes" means the promissory notes of
the Borrower, substantially in the form of Exhibit A-1, evidencing the
obligation of the Borrower to repay the Syndicated Dollar Loans, together with
all amendments, consolidations, modifications, renewals and supplements
thereto.
"Syndicated Dollar Loans" means Base Rate Loans or
Euro-Dollar Loans made pursuant to the terms and conditions set forth in
Section 2.01.
"Syndicated Loans" means Syndicated Dollar Loans and Foreign
Currency Loans.
"Taxes" has the meaning set forth in Section 2.13(d).
"Termination Date" means whichever is applicable of (i)
October 15, 2004 (ii) the date the Commitments are terminated pursuant to
Section 6.01 following the occurrence of an Event of Default, or (iii) the date
the Borrower terminates the Commitments entirely pursuant to Section 2.09.
"Telerate" means, when used in connection with any designated
page and IBOR, the display page so designated on the Telerate service screen
(or such other page as may replace that page on that service for the purpose of
displaying rates comparable to IBOR).
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d).
"Transaction Rate" has the meaning set forth in Section
2.01(b)(ii).
"Transaction Rate Loan" means a Swing Loan to be made as a
Transaction Rate Loan pursuant to Section 2.01(b).
"Transaction Rate Request" has the meaning set forth in
Section 2.01(b)(ii).
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the
PBGC or the Plan under Title IV of ERISA.
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding
principal amount of its Syndicated Dollar Loans and Foreign Currency Loans (but
not its Money Market Loans, and not the Swing Loans).
20
29
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
"Y2K Plan" has the meaning set forth in Section 4.19.
"Year 2000 Compliant and Ready" means that (a) the Borrower's
and its Subsidiaries hardware and software systems with respect to the
operation of its business will, in all material respects: (i) handle date
information involving any and all dates before, during and after January 1,
2000, including accepting input, providing output and performing date
calculations in whole or in part; (ii) operate, accurately without interruption
on and in respect of any and all dates before, during and after January 1, 2000
and without any change in performance; and (iii) store and provide date input
information without creating any ambiguity as to the century; and (b) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (i) through (iii) in clause (a)
above in this definition.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.
Unless otherwise specified herein, all terms of an accounting
character used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP, applied on a basis
consistent (except for changes concurred in by the Borrower's independent
public accountants or otherwise required by a change in GAAP) with the most
recent audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries delivered to the Banks unless with respect to any
such change concurred in by the Borrower's independent public accountants or
required by GAAP, in determining compliance with any of the provisions of this
Agreement or any of the other Loan Documents: (i) the Borrower shall have
objected to determining such compliance on such basis at the time of delivery
of such financial statements, or (ii) the Required Banks shall so object in
writing within 30 days after the delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 5.01 hereof,
shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. REFERENCES
Unless otherwise indicated, references in this Agreement to
"Articles", "Exhibits", "Schedules", "Sections" and other Subdivisions are
references to articles, exhibits, schedules, sections and other subdivisions
hereof.
21
30
SECTION 1.04. USE OF DEFINED TERMS.
All terms defined in this Agreement shall have the same
defined meanings when used in any of the other Loan Documents, unless otherwise
defined therein or unless the context shall require otherwise.
SECTION 1.05. TERMINOLOGY.
All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
ARTICLE II.
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND SYNDICATED LOANS.
(a) Each Bank (except as to Aliant Bank, with respect to
Foreign Currency Loans, as set forth in the last two sentences of this
paragraph (a)) severally agrees, on the terms and conditions set forth herein,
to make Syndicated Loans (which may be, at the option of the Borrower and
subject to the terms and conditions hereof, Foreign Currency Loans or
Syndicated Dollar Loans, and Syndicated Dollar Loans may be Base Rate Loans or
Euro-Dollar Loans) to the Borrower (and with respect to Foreign Currency Loans,
such Borrower may be either Xxxxxxx Corporation or Xxxxxxx Europe Limited) from
time to time before the Termination Date; provided that,
(i) immediately after each such Syndicated Loan
is made, the sum of the aggregate outstanding principal
amount of the Syndicated Dollar Loans and the Dollar
Equivalent of the Foreign Currency Loans by such Bank shall
not exceed the amount of its Commitment, and
(ii) (x) the aggregate outstanding principal
amount of all Syndicated Dollar Loans, Swing Loans and Money
Market Loans of all Banks and the Dollar Equivalent of the
Foreign Currency Loans of all Banks shall not exceed the
lesser of (1) the aggregate amount of the Commitments and (2)
the limitations, if any, on borrowings contained in any
agreement or other instrument binding upon the Borrower or
any of its Subsidiaries; and (y) the Dollar Equivalent of the
aggregate outstanding principal amount of all Foreign
Currency Loans shall not exceed $25,000,000.
The Dollar Equivalent of each Foreign Currency Loan on the date each Foreign
Currency Loan is disbursed pursuant hereto shall be deemed to be the amount of
such Foreign Currency Loan
22
31
outstanding for the purpose of calculating the aggregate outstanding principal
amount of the Foreign Currency Loans for purposes of clause (ii) of Section
2.01(a) and clause (ii) of Section 2.03(a); provided, however, that if at the
time of receipt of any Notice of Borrowing or Money Market Quote Request, the
aggregate outstanding principal amount of all Syndicated Dollar Loans and Money
Market Loans of all Banks and the Dollar Equivalent of the aggregate principal
amount of the Foreign Currency Loans of all Banks is equal to or greater than
75% of the aggregate amount of all of the Commitments, then the Dollar
Equivalent of each Foreign Currency Loan shall be calculated as of such date,
rather than as of the date such Foreign Currency Loans were disbursed, and in
the event that, as a result of such calculation, the aggregate outstanding
principal amount of all Syndicated Dollar Loans and Money Market Loans of all
Banks and the Dollar Equivalent of the aggregate principal amount of the
Foreign Currency Loans of all Banks exceeds the aggregate amount of all of the
Commitments, then (1) no additional Borrowings shall be permitted until the
payment required by clause (2) below has been made and (2) the Foreign Currency
Loans shall be subject to mandatory repayment pursuant to the provisions of
Section 2.12(b). Each Syndicated Borrowing under this Section shall be in an
aggregate principal amount of (x) $1,000,000 or any larger integral multiple of
$500,000, in the case of Base Rate Loans, and (y) $5,000,000 (or the Dollar
Equivalent thereof in any Foreign Currency) or any larger integral multiple of
$1,000,000 (or the Dollar Equivalent thereof in any Foreign Currency) in the
case of Fixed Rate Loans (except in any case that any such Syndicated Borrowing
may be in the aggregate amount of the Unused Commitments) and shall be made
from the several Banks ratably in proportion to their respective Commitments.
Within the foregoing limits, the Borrower may borrow under this Section, repay
or, to the extent permitted by Section 2.11, prepay Syndicated Loans and
reborrow under this Section at any time before the Termination Date.
Notwithstanding the foregoing, if there shall occur on or prior to the date of
any Foreign Currency Loan any change in national or international financial,
political or economic conditions or currency exchange rates or exchange
controls which would in the opinion of the Administrative Agent make it
impracticable to make such Foreign Currency Loan, then the Administrative Agent
shall forthwith give notice thereof to the Borrower and the Banks, and such
Foreign Currency Loan shall be made on such date as Base Rate Loans, unless the
Borrower notifies the Administrative Agent at least two Domestic Business Days
before such date that it elects not to borrow on such date. Aliant Bank has
indicated that it is unable to fund Foreign Currency Loans, and Wachovia and
Aliant Bank have agreed that: (i) Wachovia will fund Aliant Bank's ratable
share of any Foreign Currency Loan (such share of any Foreign Currency Loan
made by Wachovia being the "Aliant Foreign Currency Share"), and Wachovia's
Foreign Currency Loan Note shall also evidence such Foreign Currency Loans made
on behalf of Aliant Bank; (ii) immediately upon the making of any Foreign
Currency Loan by Wachovia, Aliant Bank shall be deemed to have irrevocably and
unconditionally purchased and received from Wachovia, without recourse or
warranty, a 100% undivided risk participation in such Foreign Currency Loan in
the amount of the Aliant Foreign Currency Share; (iii) in the event that the
applicable Borrower shall not have repaid any Foreign Currency Loan made by
Wachovia as and when it becomes due pursuant hereto, Wachovia shall promptly
notify Aliant Bank of such failure, and Aliant Bank shall promptly and
unconditionally pay to Wachovia, in Dollars and in same day funds, the Dollar
Equivalent of the Aliant Foreign Currency Share of such Foreign Currency Loan,
and (iv) if such payment is not promptly made, hold Wachovia harmless and
indemnify it as to any loss incurred by Wachovia arising from any change in the
value of Dollars in relation to such Foreign Currency between the date such
23
32
payment became due and the date of payment thereof, and pay to Wachovia
interest for such period on the amount of such payment at the Base Rate for the
first 3 days and thereafter at the Default Rate.
(b) Swing Loans.
(i) In addition to the foregoing, Wachovia shall from
time to time, upon the request of the Borrower, if the applicable
conditions precedent in Article III have been satisfied, make Swing
Loans to the Borrower in an aggregate principal amount at any time
outstanding not exceeding $15,000,000; provided that, immediately
after such Swing Loan is made, the conditions set forth in clause (ii)
of Section 2.01(a) shall have been satisfied. Each Swing Loan
Borrowing under this Section 2.01(b) shall be in an aggregate
principal amount of $100,000 or any larger multiple of $25,000. Within
the foregoing limits, the Borrower may borrow under this Section
2.01(b), prepay and reborrow under this Section 2.01(b) at any time
before the Termination Date. Swing Loans shall not be considered a
utilization of the Commitment of Wachovia or any other Bank hereunder.
All Swing Loans shall be made as Base Rate Loans or, subject to the
provisions of clause (ii) below, Transaction Rate Loans.
(ii) Swing Loans may be Transaction Rate Loans, if the
Administrative Agent shall have determined that such Transaction Rate
Loan, including the principal amount thereof, the Interest Period and
the Transaction Rate applicable thereto, has been expressly agreed to
by the Borrower and Wachovia (such agreement may be obtained by
telephone, confirmed promptly to the Administrative Agent in writing)
pursuant to the following procedures. If the Borrower desires a
Transaction Rate Loan, (a) the Borrower shall provide Wachovia, with a
copy to the Administrative Agent, with notice of a request (a
"Transaction Rate Request") for a quote for a Transaction Rate
Borrowing prior to 1:00 p.m. (Atlanta, Georgia time) on the date
(which shall be a Domestic Business Day) of the proposed Transaction
Rate Borrowing, which Transaction Rate Request shall include the
principal amount and proposed Interest Period of the relevant
Transaction Rate Borrowing, (b) prior to 1:30 p.m. (Atlanta, Georgia
time) on such date, Wachovia shall furnish the Borrower, with a copy
to the Administrative Agent, with its rate quote (a "Transaction Rate
Quote") via facsimile transmission, (c) the Borrower shall immediately
inform Wachovia and the Administrative Agent of its decision as to
whether to request a Transaction Rate Borrowing at the Transaction
Rate specified in such Transaction Rate Quote (a "Transaction Rate")
(which may be done by telephone and promptly confirmed in writing, and
which decision shall be irrevocable), and (d) if the Borrower has so
informed Wachovia and the Administrative Agent that it does desire a
Transaction Rate Borrowing at the Transaction Rate specified in such
Transaction Rate Quote, then by 2:00 p.m. (Atlanta, Georgia time) on
the date of such decision, Wachovia shall make such Transaction Rate
Borrowing, with interest accruing thereon at such Transaction Rate,
available to the Administrative Agent in accordance with the
procedures set forth herein. The Administrative Agent shall notify the
Banks of any Transaction Rate Borrowing pursuant hereto.
24
33
(iii) At any time, upon the request of Wachovia, each Bank
other than Wachovia shall, on the third Domestic Business Day after
such request is made, purchase a participating interest in Swing Loans
in an amount equal to its ratable share (based upon its respective
Commitment) of such Swing Loans. On such third Domestic Business Day,
each Bank will immediately transfer to Wachovia, in immediately
available funds, the amount of its participation. Whenever, at any
time after Wachovia has received from any such Bank its participating
interest in a Swing Loan, the Administrative Agent receives any
payment on account thereof, the Administrative Agent will distribute
to such Bank its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Bank's participating interest was outstanding
and funded); provided, however, that in the event that such payment
received by the Administrative Agent is required to be returned, such
Bank will return to the Administrative Agent any portion thereof
previously distributed by the Administrative Agent to it. Each Bank'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 set-off, counterclaim,
recoupment, defense or other right which such Bank or any other Person
may have against Wachovia requesting such purchase or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the termination of the Commitments;
(iii) any adverse change in the condition (financial or otherwise) of
the Borrower, the Parent or any other Person; (iv) any breach of this
Agreement by the Borrower or any other Bank; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
SECTION 2.02. METHOD OF BORROWING SYNDICATED LOANS AND SWING
LOANS.
(a) For all Loans other than Transaction Rate Loans and
Money Market Loans, the Borrower shall give the Administrative Agent notice (a
"Notice of Borrowing"), which shall be substantially in the form of Exhibit E-1
(and for Foreign Currency Borrowings, Xxxxxxx Europe Limited hereby authorizes
Xxxxxxx Corporation to execute and deliver a Notice of Borrowing and a Notice
of Continuation or Conversion, as the case may be, in its name, as its agent),
prior to (i) 9:30 A.M. (Atlanta, Georgia time) for Base Rate Borrowings which
are Syndicated Borrowings, and 1:00 P.M. (Atlanta, Georgia time) for Base Rate
Borrowings which are Swing Loan Borrowings, in each case on the same Domestic
Business Day of each Base Rate Borrowing, and (ii) 11:00 A.M. (Atlanta, Georgia
time) for all Syndicated Borrowings at least 3 Euro-Dollar Business Days before
each Euro-Dollar Borrowing and at least 3 Foreign Currency Business Days before
each Foreign Currency Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Borrowing, a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing and a Foreign
Currency Business Day in the case of a Foreign Currency Borrowing
(ii) the aggregate amount of such Borrowing,
(iii) whether the Syndicated Loans comprising such
Borrowing are to be Base Rate Loans, Euro-Dollar Loans or Foreign
Currency Loans, or stating that such
25
34
Borrowing is to be a Swing Loan Borrowing, and if such Loans are to be
Foreign Currency Loans, specifying the Foreign Currency, and
(iv) in the case of a Fixed Rate Borrowing, the duration
of the Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Bank of the contents thereof
and (unless such Borrowing is a Swing Loan Borrowing) of such Bank's ratable
share of such Syndicated Borrowing and such Notice of Borrowing, once received
by the Administrative Agent, shall not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time) on
the date of each Syndicated Borrowing, each Bank shall (except as provided in
paragraph (d) of this Section) make available its ratable share of such
Syndicated Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Administrative Agent at its address determined
pursuant to Section 9.01 (or, with respect to Foreign Currency Borrowings, to
the Administrative Agent's designated foreign correspondent bank at the address
specified by the Administrative Agent), which funds shall be in Dollars, if
such Borrowing is a Dollar Borrowing, and in the applicable Foreign Currency,
if such Borrowing is a Foreign Currency Borrowing. Unless the Administrative
Agent determines that any applicable condition specified in Article III has not
been satisfied, the Administrative Agent will make the funds so received from
the Banks available to the Borrower at the Administrative Agent's aforesaid
address. Unless the Administrative Agent receives notice from a Bank, at the
Administrative Agent's address referred to in or specified pursuant to Section
9.01, no later than 4:00 P.M. (local time at such address) on the Domestic
Business Day before the date of a Syndicated Borrowing stating that such Bank
will not make a Syndicated Loan in connection with such Syndicated Borrowing,
the Administrative Agent shall be entitled to assume that such Bank will make a
Syndicated Loan in connection with such Syndicated Borrowing and, in reliance
on such assumption, the Administrative Agent may (but shall not be obligated
to) make available such Bank's ratable share of such Syndicated Borrowing to
the Borrower for the account of such Bank. If the Administrative Agent makes
such Bank's ratable share available to the Borrower and such Bank does not in
fact make its ratable share of such Syndicated Borrowing available on such
date, the Administrative Agent shall be entitled to recover such Bank's ratable
share from such Bank or the Borrower (and for such purpose shall be entitled to
charge such amount to any account of the Borrower maintained with the
Administrative Agent after giving the Borrower 2 Domestic Business Days' prior
notice thereof), together with interest thereon for each day during the period
from the date of such Syndicated Borrowing until such sum shall be paid in full
at a rate per annum equal to the rate at which the Administrative Agent
determines that it obtained (or could have obtained) overnight Federal funds to
cover such amount for each such day during such period, provided that (i) any
such payment by the Borrower of such Bank's ratable share and interest thereon
shall be without prejudice to any rights that the Borrower may have against
such Bank and (ii) until such Bank has paid its ratable share of such
Syndicated Borrowing, together with interest pursuant to the foregoing, it will
have no interest in or rights with respect to such Syndicated Borrowing for any
purpose hereunder. If the Administrative Agent does not exercise its option to
advance funds for the account of such Bank, it shall forthwith notify the
26
35
Borrower of such decision. Unless the Administrative Agent determines that any
applicable condition specified in Article III has not been satisfied, Wachovia
will make available to the Borrower at Wachovia's Lending Office the amount of
any such Borrowing which is a Swing Loan Borrowing.
(d) If any Bank makes a new Syndicated Loan hereunder on
a day on which the Borrower is to repay all or any part of an outstanding
Syndicated Loan from such Bank, such Bank shall apply the proceeds of its new
Syndicated Loan to make such repayment as a Refunding Loan and only an amount
equal to the difference (if any) between the amount being borrowed and the
amount of such Refunding Loan shall be made available by such Bank to the
Administrative Agent as provided in paragraph (c) of this Section, or remitted
by the Borrower to the Administrative Agent as provided in Section 2.13, as the
case may be; provided, however, that if the Syndicated Loan which is to be
repaid is a Foreign Currency Loan, the foregoing provisions shall apply only if
the new Syndicated Loan is to be made in the same Foreign Currency.
(e) Notwithstanding anything to the contrary contained
in this Agreement, no Fixed Rate Borrowing may be made if there shall have
occurred a Default or an Event of Default, which Default or Event of Default
shall not have been cured or waived, and in such event, all Refunding Loans
shall be made as Base Rate Loans (but shall bear interest at the Default Rate,
if applicable).
(f) In the event that a Notice of Borrowing fails to
specify whether the Syndicated Loans comprising such Syndicated Borrowing are
to be Base Rate Loans, Euro-Dollar Loans or Foreign Currency Loans, such
Syndicated Loans shall be made as Base Rate Loans. If the Borrower is otherwise
entitled under this Agreement to repay any Syndicated Loans maturing at the end
of an Interest Period applicable thereto with the proceeds of a new Syndicated
Borrowing, and the Borrower fails to repay such Syndicated Loans using its own
moneys and fails to give a Notice of Borrowing in connection with such new
Syndicated Borrowing, a new Syndicated Borrowing shall be deemed to be made on
the date such Syndicated Loans mature in an amount equal to the principal
amount of the Syndicated Loans so maturing, and the Syndicated Loans comprising
such new Syndicated Borrowing shall be Base Rate Loans, which shall be in the
Dollar Equivalent of such maturing Loans, if such maturing Loans were Foreign
Currency Loans.
(g) Notwithstanding anything to the contrary contained
herein, there shall not be more than 8 Interest Periods (other than for
Transaction Rate Loans, which shall not be limited in number) outstanding at
any given time.
SECTION 2.03. MONEY MARKET LOANS
(a) In addition to making Syndicated Borrowings, the
Borrower may, as set forth in this Section 2.03, at any time that its
Debt/EBITDA Ratio is less than 3.0 to 1.0, request the Banks to make offers to
make Money Market Borrowings available to the Borrower. The Banks may, but
shall have no obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set forth in this
Section 2.03, provided that:
27
36
(i) the number of interest rates applicable to Money
Market Loans which may be outstanding at any given time is subject to
the provisions of Section 2.02(g);
(ii) the conditions set forth in clause (ii) of Section
2.01(a) shall be satisfied;
(iii) the aggregate principal amount of all Money Market
Loans outstanding at any one time shall not exceed 50% of the amount
of the Aggregate Commitments as of such time; and
(iv) the Money Market Loans of any Bank will be deemed to
be usage of the Commitments for the purpose of calculating
availability pursuant to Section 2.01(a)(ii), 2.01(b)(i) and
2.03(a)(ii), but will not reduce such Bank's obligation to lend its
pro rata share of the remaining Unused Commitment.
(b) When the Borrower wishes to request offers to make
Money Market Loans, it shall give the Administrative Agent (which shall
promptly notify the Banks) notice substantially in the form of Exhibit I hereto
(a "Money Market Quote Request") so as to be received no later than 10:00 A.M.
(Atlanta, Georgia time) at least 2 Domestic Business Days prior to the date of
the Money Market Borrowing proposed therein (or such other time and date as the
Borrower and the Administrative Agent, with the consent of the Required Banks,
may agree), specifying:
(i) the proposed date of such Money Market Borrowing,
which shall be a Euro-Dollar Business Day (the "Money Market Borrowing
Date");
(ii) the maturity date (or dates) (each a "Stated
Maturity Date") for repayment of each Money Market Loan to be made as
part of such Money Market Borrowing (which Stated Maturity Date shall
be that date occurring not less than 7 days but not more than 180 days
from the date of such Money Market Borrowing); provided that the
Stated Maturity Date for any Money Market Loan may not extend beyond
the Termination Date (as in effect on the date of such Money Market
Quote Request); and
(iii) the aggregate amount of principal to be requested by
the Borrower as a result of such Money Market Borrowing, which shall
be at least $5,000,000 (and in larger integral multiples of
$1,000,000) but shall not cause the limits specified in Section
2.03(a) to be violated.
The Borrower may request offers to make Money Market Loans having up to 2
different Stated Maturity Dates in a single Money Market Quote Request;
provided that the request for each separate Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request for a separate Money Market
Borrowing. Except as otherwise provided in the immediately preceding sentence,
after the first Money Market Quote Request has been given hereunder, no Money
Market Quote Request shall be given until at least 5 Domestic Business Days
after all prior Money Market Quote Requests have been fully processed by the
Administrative Agent, the Banks and the Borrower pursuant to this Section 2.03.
28
37
(c) (i) Each Bank may, but shall have no obligation
to, submit a response containing an offer to make a Money Market Loan
substantially in the form of Exhibit J hereto (a "Money Market Quote") in
response to any Money Market Quote Request; provided that, if the Borrower's
request under Section 2.03(b) specified more than 1 Stated Maturity Date, such
Bank may, but shall have no obligation to, make a single submission containing
a separate offer for each such Stated Maturity Date and each such separate
offer shall be deemed to be a separate Money Market Quote. Each Money Market
Quote must be submitted to the Administrative Agent not later than 10:00 A.M.
(Atlanta, Georgia time) on the Money Market Borrowing Date; provided that any
Money Market Quote submitted by Wachovia may be submitted, and may only be
submitted, if Wachovia notifies the Borrower of the terms of the offer
contained therein not later than 9:45 A.M. (Atlanta, Georgia time) on the Money
Market Borrowing Date (or 15 minutes prior to the time that the other Banks are
required to have submitted their respective Money Market Quotes). Subject to
Section 6.01, any Money Market Quote so made shall be irrevocable except with
the written consent of the Administrative Agent given on the instructions of
the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Money Market Borrowing Date
and the Stated Maturity Date therefor;
(B) the principal amounts of the Money Market
Loan which the quoting Bank is willing to make for the
applicable Money Market Quote, which principal amounts (x)
may be greater than or less than the Commitment of the
quoting Bank, (y) shall be at least $5,000,000 or a larger
integral multiple of $500,000, and (z) may not exceed the
principal amount of the Money Market Borrowing for which
offers were requested;
(C) the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1%) offered
for each such Money Market Loan (such amounts being
hereinafter referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Borrower, no Money
Market Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the applicable
Money Market Quote Request (other than setting forth the principal amounts of
the Money Market Loan which the quoting Bank is willing to make for the
applicable Interest Period) and, in particular, no Money Market Quote may be
conditioned upon acceptance by the Borrower of all (or some specified minimum)
of the principal amount of the Money Market Loan for which such Money Market
Quote is being made.
29
38
(d) The Administrative Agent shall as promptly as
practicable after the Money Market Quote is submitted (but in any event not
later than 10:30 A.M. (Atlanta, Georgia time)) on the Money Market Borrowing
Date, notify the Borrower of the terms (i) of any Money Market Quote submitted
by a Bank that is in accordance with Section 2.03(c) and (ii) of any Money
Market Quote that amends, modifies or is otherwise inconsistent with a previous
Money Market Quote submitted by such Bank with respect to the same Money Market
Quote Request. Any such subsequent Money Market Quote shall be disregarded by
the Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the principal
amounts of the Money Market Borrowing for which offers have been received and
(B) the respective principal amounts and Money Market Rates so offered by each
Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on
the Money Market Borrowing Date, the Borrower shall notify the Administrative
Agent of its acceptance or nonacceptance of the offers so notified to it
pursuant to Section 2.03(d) and the Administrative Agent shall promptly notify
each Bank which submitted an offer. In the case of acceptance, such notice
shall specify the aggregate principal amount of offers (for each Stated
Maturity Date) that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the
related Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Loan comprising a Money Market Borrowing shall be at least $5,000,000
(and in larger integral multiples of $1,000,000) but shall not cause
the limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending
order of Money Market Rates; and
(iv) the Borrower may not accept any offer where the
Administrative Agent has advised the Borrower that such offer fails to
comply with Section 2.03(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including without limitation, Section
2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount of
Money Market Loans in respect of which such offers are accepted shall be
allocated by the Borrower among such Banks as nearly as possible in proportion
to the aggregate principal amount of such offers. Determinations by the
Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan
has been accepted shall, not later than 12:00 P.M. (Atlanta, Georgia time) on
the Money Market
30
39
Borrowing Date, make the amount of such Money Market Loan allocated to it
available to the Administrative Agent at its address referred to in Section
9.01 in immediately available funds. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower on such date by depositing the
same, in immediately available funds, not later than 4:00 P.M. (Atlanta,
Georgia time), in an account of such Borrower maintained with Wachovia.
(g) After any Money Market Loan has been funded, the
Administrative Agent shall notify the Banks of the aggregate principal amount
of the Money Market Quotes received and the highest and lowest rates included
in such Money Market Quotes.
(h) Money Market Loans by Designated Banks. For any Bank
which is a Designating Bank, any Money Market Loan to be made by such Bank may
from time to time be made by its Designated Bank in such Designated Bank's sole
discretion, and nothing herein shall constitute a commitment to make Money
Market Loans by such Designated Bank; provided, that if any Designated Bank
elects not to, or fails to, make any such Money Market Loan that has been
accepted by the Borrower in accordance with the foregoing, its Designating Bank
hereby agrees that it shall make such Money Market Loan pursuant to the terms
hereof.
SECTION 2.04. CONTINUATION AND CONVERSION ELECTIONS.
By delivering a notice (a "Notice of Continuation or
Conversion"), which shall be substantially in the form of Exhibit E-2, to the
Administrative Agent on or before 12:00 P.M., Atlanta, Georgia time, on a
Domestic Business Day (or Euro-Dollar Business Day, in the case of Euro-Dollar
Loans outstanding, or Foreign Currency Business Day, in the case of Foreign
Currency Loans outstanding), the Borrower may from time to time irrevocably
elect, by notice on the same Domestic Business Day, in the case of Base Rate
Loans, or 3 Euro-Dollar Business Days, in the case of Euro-Dollar Loans, or 3
Foreign Currency Business Days, in the case of Foreign Currency Loans, that
all, or any portion be, (i) in the case of Base Rate Loans, converted into
Euro-Dollar Loans or Foreign Currency Loans in an aggregate principal amount of
$5,000,000 or any larger integral multiple of $1,000,000 or, (ii) in the case
of Euro-Dollar Loans, converted into Base Rate Loans or Foreign Currency Loans
in an aggregate principal amount of $5,000,000 or any larger integral multiple
of $1,000,000 (or the Dollar Equivalent thereof, in the case of Foreign
Currency Loans) or continued as Euro-Dollar Loans in an aggregate principal
amount of $5,000,000 or any larger integral multiple of $1,000,000, or (iii) in
the case of Foreign Currency Loans, continued as Foreign Currency Loans in the
same Foreign Currency (in the absence of delivery of a Notice of Continuation
or Conversion with respect to any Euro-Dollar Loan at least 3 Euro-Dollar
Business Days before the last day of the then current Interest Period with
respect thereto, such Euro-Dollar Loan shall, on such last day, automatically
convert to a Base Rate Loan); provided, however, that (x) each such conversion
or continuation shall be pro rated among the applicable outstanding Loans of
all Lenders that have made such Loans, and (y) no portion of the outstanding
principal amount of any Loans may be continued as, or be converted into, any
Fixed Rate Loan when any Event of Default has occurred and is continuing.
31
40
SECTION 2.05. NOTES
(a) The Syndicated Loans of each Bank shall be evidenced
by a single Syndicated Dollar Loan Note payable to the order of such Bank for
the account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment and a single Foreign Currency Loan Note from
each of Xxxxxxx Corporation and Xxxxxxx Europe Limited, each payable to the
order of such Bank for the account of its Lending Office. The Swing Loans shall
be evidenced by a single Swing Loan Note payable to the order of Wachovia in
the original principal amount of $15,000,000.
(b) The Money Market Loans made by any Bank to the
Borrower shall be evidenced by a single Money Market Loan Note payable to the
order of such Bank for the account of its Lending Office in an amount equal to
50% of the original principal amount of the Aggregate Commitments.
(c) Upon receipt of each Bank's Notes pursuant to
Section 3.01, the Administrative Agent shall deliver such Notes to such Bank.
Each Bank shall record, and prior to any transfer of its Notes shall endorse on
the schedules forming a part thereof appropriate notations to evidence, the
date, amount and maturity of, and effective interest rate for, each Loan made
by it, the date and amount of each payment of principal made by the Borrower
with respect thereto, whether such Loan is a Base Rate Loan, Euro-Dollar Loan
or Foreign Currency Loan, and if a Foreign Currency Loan, a specification of
the Foreign Currency, and such schedules of each such Bank's Notes shall
constitute rebuttable presumptive evidence of the respective principal amounts
owing and unpaid on such Bank's Notes; provided that the failure of any Bank to
make, or any error in making, any such recordation or endorsement shall not
affect the obligation of the Borrower hereunder or under the Notes or the
ability of any Bank to assign its Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Notes and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06. MATURITY OF LOANS
(a) Each Fixed Rate Loan included in any Borrowing shall
mature, and the principal amount thereof shall be due and payable, on the last
day of the Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding
principal amount of the Loans, if any, together with all accrued but unpaid
interest thereon, if any, shall be due and payable on the Termination Date.
SECTION 2.07. INTEREST RATES
(a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to and
including the first Performance Pricing Determination Date after the
Fiscal Quarter ending January 1, 2000,
32
41
(x) for any Base Rate Loan, 0%, and (y) for any Euro-Dollar Loan or
Foreign Currency Loan, 0.65%; and
(ii) from and after the first Performance Pricing
Determination Date after the Fiscal Quarter ending January 1, 2000,
(x) for any Base Rate Loan, 0.00% and (y) for each Euro-Dollar Loan
and Foreign Currency Loan, the percentage determined on each
Performance Pricing Determination Date by reference to the table set
forth below as to such type of Loan and the Debt/EBITDA Ratio,
determined as of the end of the quarterly or annual period ending
immediately prior to such Performance Pricing Determination Date.
Debt/EBITDA
Ratio Applicable Margin
----- -----------------
< 2.0 to 1.0 0.45%
> 2.0 to 1.0 but
-
< 2.5 to 1.0 0.55%
> 2.5 to 1.0 but
-
< 3.0 to 1.0 0.65%
> 3.0 to 1.0 0.90%
-
In determining interest for purposes of this Section 2.07 and fees for purposes
of Section 2.08, the Borrower and the Banks shall refer to the Borrower's most
recent consolidated quarterly and annual (as the case may be) financial
statements delivered pursuant to Section 5.01(a) or (b), as the case may be. If
such financial statements require a change in interest pursuant to this Section
2.07 or fees pursuant to Section 2.08, the Borrower shall deliver to the
Administrative Agent, along with such financial statements, a notice to that
effect, which notice shall set forth in reasonable detail the calculations
supporting the required change. The "Performance Pricing Determination Date" is
the date which is 45 days after the end of each Fiscal Quarter. Any such
required change in interest and fees shall become effective on such Performance
Pricing Determination Date, and shall be in effect until the next Performance
Pricing Determination Date, provided that: (i) for Fixed Rate Loans, changes in
interest shall only be effective for Interest Periods commencing on or after
the Performance Pricing Determination Date; and (ii) no fees or interest shall
be decreased pursuant to this Section 2.07 or Section 2.08 if a Default is in
existence on the Performance Pricing Determination Date.
(b) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Loan is
made until it becomes due, at a rate per annum equal to the Base Rate for such
day plus the Applicable Margin. Such interest shall be payable on each
Quarterly Payment Date while such Base Rate Loan is outstanding and on the date
such Base Rate Loan is converted to a Fixed Rate Loan. Any overdue principal of
and, to the extent permitted by applicable law, overdue interest on any Base
Rate Loan shall bear
33
42
interest, payable on demand, for each day until paid at a rate per annum equal
to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than 3 months, at intervals of 3 months
after the first day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Euro-Dollar Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to
any Interest Period means a rate per annum equal to the quotient obtained
(rounded upwards, if necessary, to the next higher 1/100th of 1%) by dividing
(i) the applicable London Interbank Offered Rate for such Interest Period by
(ii) 1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan, the
rate per annum determined on the basis of the offered rate for deposits in
Dollars of amounts equal or comparable to the principal amount of such
Euro-Dollar Loan offered for a term comparable to such Interest Period, which
rates appear on Telerate Page 3750 effective as of 11:00 A.M., London time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, the "London
Interbank Offered Rate" for such Interest Period will be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100th of 1%) of rates
quoted by not less than 2 major banks in New York City, selected by the
Administrative Agent, at approximately 10:00 A.M., New York City time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period, for
deposits in Dollars offered by leading European banks for a period comparable
to such Interest Period in an amount comparable to the principal amount of such
Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
(d) Each Money Market Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Money
Market Loan is made until it becomes due, at a rate per annum equal to the
applicable Money Market Rate set forth in the relevant Money Market Quote. Such
interest shall be payable on the Stated Maturity Date thereof, and, if the
Stated Maturity Date occurs more than 90 days after the date of the relevant
Money Market
34
43
Loan, at intervals of 90 days after the first day thereof. Any overdue
principal of and, to the extent permitted by law, overdue interest on any Money
Market Loan shall bear interest, payable on demand, for each day until paid at
a rate per annum equal to the Default Rate.
(e) Each Foreign Currency Loan shall bear interest on
the outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted IBOR Rate for such Interest Period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by law, overdue
interest on any Foreign Currency Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the Default Rate.
"Adjusted IBOR Rate" means, with respect to each Interest
Period for a Foreign Currency Loan, the sum of (i) the rate obtained by
dividing (A) IBOR for such Interest Period by (B) a percentage equal to 1 minus
the then stated maximum rate (stated as a decimal) of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable to any member bank of the Federal Reserve System
as defined in Regulation D (or against any successor category of liabilities as
defined in Regulation D), plus (ii) if the relevant Foreign Currency Loan is in
British pounds sterling, a percentage sufficient to compensate the Banks for
the cost of complying with any reserves, liquidity and/or special deposit
requirements of the Bank of England directly or indirectly affecting the
maintenance or funding of such Foreign Currency Loan.
"IBOR" means, for any Interest Period, with respect to
Foreign Currency Loans, the offered rate for deposits in the applicable Foreign
Currency, for a period comparable to the Interest Period and in an amount
comparable to the amount of such Foreign Currency Loan appearing on Telerate
Page 3750, or, if Telerate is unavailable the Reuters Screen Page FRBD, FRBE,
FRBF or FRBG, as applicable, or, if it is unavailable on either Telerate or the
Reuters Screen, then such rate shall be determined by the Administrative Agent
from any other interest rate reporting service of recognized standing
designated in writing by the Administrative Agent to the Borrower as of 11:00
A.M. (London, England time) on the day that is two Business Days prior to the
first day of the Interest Period.
(f) The Administrative Agent shall determine each
interest rate applicable to the Loans hereunder. The Administrative Agent shall
give prompt notice to the Borrower and the Banks by telecopier of each rate of
interest so determined, and its determination thereof shall be conclusive in
the absence of manifest error.
(g) After the occurrence and during the continuance of
an Event of Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) may, at the election
of the Required Banks, bear interest at the Default Rate.
SECTION 2.08. FEES
(a) The Borrower shall pay to the Administrative Agent,
for the ratable account of each Bank, a facility fee, calculated in the manner
provided in the last paragraph of
35
44
Section 2.07(a)(ii), on the aggregate amount of such Bank's Commitment (without
taking into account the amount of the outstanding Loans made by such Bank), at
a rate per annum equal to: (i) for the period commencing on the Closing Date to
and including the first Performance Pricing Determination Date after the Fiscal
Quarter ending January 1, 2000, 0.25%; and (ii) from and after the first
Performance Pricing Determination Date after the Fiscal Quarter ending January
1,2000, the percentage determined on each Performance Pricing Determination
Date by reference to the table set forth below and the Debt/EBITDA Ratio,
determined as of the end of the quarterly or annual period ending immediately
prior to such Performance Pricing Determination Date:
Debt/EBITDA
Ratio Facility Fee
----- ------------
< 2.0 to 1.0 0.15%
> 2.0 to 1.0 but
-
< 2.5 to 1.0 0.20%
> 2.5 to 1.0 but
-
< 3.0 to 1.0 0.25%
> 3.0 to 1.0 0.30%
-
Such facility fees shall accrue from and including the
Closing Date to (but excluding the Termination Date) and shall be payable on
each Quarterly Payment Date and on the Termination Date.
SECTION 2.09. OPTIONAL TERMINATION OR REDUCTION OF
COMMITMENTS.
The Borrower may, upon at least 3 Domestic Business Days'
notice to the Administrative Agent, terminate at any time, or proportionately
reduce the Unused Commitments from time to time by an aggregate amount of at
least $5,000,000 or any larger integral multiple of $1,000,000. If the
Commitments are terminated in their entirety, all accrued fees (as provided
under Section 2.08) shall be due and payable on the effective date of such
termination.
SECTION 2.10. MANDATORY REDUCTION AND TERMINATION OF
COMMITMENTS.
The Commitments shall terminate on the Termination Date and
any Loans then outstanding (together with accrued interest thereon) shall be
due and payable on such date.
SECTION 2.11. OPTIONAL PREPAYMENTS
(a) The Borrower may, upon at least 1 Domestic Business
Days' notice to the Administrative Agent, prepay, without premium or penalty,
any Base Rate Borrowing in whole at any time, or from time to time in part in
amounts aggregating at least $1,000,000 with
36
45
additional increments of $500,000 (or any lesser amount equal to the
outstanding balance of such Loan), or $100,000 as to Swing Loans, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Base Rate Loans of the several Banks or of Wachovia, in the case of
Swing Loans included in such Base Rate Borrowing.
(b) Subject to any payments required pursuant to the
terms of Article VIII for such Fixed Rate Loan, upon 3 Domestic Business Day's
prior written notice, the Borrower may prepay in minimum amounts of $5,000,000
with additional increments of $1,000,000 (or any lesser amount equal to the
outstanding balance of such Loan) all or any portion of the principal amount of
any Fixed Rate Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to
this Section 2.11, the Administrative Agent shall promptly notify each Bank of
the contents thereof and of such Bank's ratable share of such prepayment and
such notice, once received by the Administrative Agent, shall not thereafter be
revocable by the Borrower.
SECTION 2.12. MANDATORY PREPAYMENTS
(a) On each date on which the conditions set forth in
clauses (i) or (ii) of Section 2.01(a), clause (i) of Section 2.01(b) or of
clause (iii) of Section 2.03(a), are not satisfied (including, without
limitation, by reason of the reduction of the Commitments pursuant to Section
2.09 or Section 2.10), the Borrower shall repay or prepay such principal amount
of the outstanding Loans, if any (together with interest accrued thereon and
any amount due under Section 8.05(a)), as may be necessary so that after such
payment (1) the aggregate unpaid principal amount of the Loans does not exceed
the Aggregate Commitments as then in effect, and (2) the aggregate amount of
Money Market Loans does not exceed 50% of the Aggregate Commitments as then in
effect. Except where such prepayment must be applied to the Money Market Loans
in order to satisfy clause (2) above, each such payment or prepayment shall be
applied first to any Swing Loans outstanding which are Base Rate Loans, then to
any Swing Loans outstanding which are Transaction Rate Loans, and then ratably
to the Loans of the Banks outstanding on the date of payment or prepayment in
the following order of priority:(i) first, to Base Rate Loans; (ii) secondly,
to Euro-Dollar Loans; and (iii) lastly, to Money Market Loans.
(b) If the Administrative Agent determines at any time
(either on its own initiative or at the instance of any Bank) that the
aggregate principal amount of the Foreign Currency Loans outstanding (after
converting each Foreign Currency Loan to its Dollar Equivalent on the date of
calculation) at any time exceeds either (i) a Dollar Equivalent of $25,000,000
or (ii) 105% of the aggregate amount of all of the Commitments less the
outstanding aggregate amount of all Syndicated Dollar Loans, then upon 5
Foreign Currency Business Days' written notice from the Administrative Agent,
the Borrower shall prepay an aggregate principal amount of Foreign Currency
Loans sufficient to bring the aggregate of the Foreign Currency Loans
outstanding to no more than a Dollar Equivalent of $25,000,000 and within the
aggregate amount of all of the Commitments less the outstanding aggregate
amount of all Syndicated Dollar Loans. Nothing in the foregoing shall require
the Administrative Agent to make any such calculation unless expressly
requested to do so by the Required Banks.
37
46
SECTION 2.13. GENERAL PROVISIONS AS TO PAYMENTS
(a) The Borrower shall make each payment of principal
of, and interest on, the Loans and of fees hereunder, without any setoff,
counterclaim or any deduction whatsoever, not later than 11:00 A.M. (Atlanta,
Georgia time) on the date when due, in Federal or other funds (subject to
paragraph (c) below, with respect to Foreign Currency Loans) immediately
available in Atlanta, Georgia, to the Administrative Agent at its address
referred to in Section 9.01. The Administrative Agent will promptly distribute
to Wachovia each such payment received on account of the Swing Loans and to
each Bank its ratable share of each such payment received by the Administrative
Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest
on, the Base Rate Loans, Money Market Loans or of fees hereunder shall be due
on a day which is not a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of or interest on, the Euro-Dollar Loans or the Foreign
Currency Loans shall be due on a day which is not a Euro-Dollar Business Day or
Foreign Currency Business Day, as the case may be, the date for payment thereof
shall be extended to the next succeeding Euro-Dollar Business Day or Foreign
Currency Business Day, as the case may be, unless such Euro-Dollar Business Day
or Foreign Currency Business Day, as the case may be, falls in another calendar
month, in which case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day or Foreign Currency Business Day, as the case may be.
(c) All payments of principal and interest with respect
to Foreign Currency Loans shall be made in the Foreign Currency in which the
related Foreign Currency Loan was made.
(d) All payments of principal, interest and fees and all
other amounts to be made by the Borrower pursuant to this Agreement with
respect to any Loan or fee relating thereto shall be paid without deduction
for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein excluding
in the case of each Bank, taxes imposed on or measured by its income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its net income, and franchise taxes imposed on it, by
the jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that the
Borrower is required by applicable law to make any such withholding or
deduction of Taxes with respect to any Loan or fee or other amount, the
Borrower shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such Bank additional amounts as may be necessary
in order that the amount received by such Bank after the required withholding
or other payment shall equal the amount such Bank would have received had no
such withholding or other payment been made.
38
47
Each Bank (x) as to Xxxxxxx Corporation, which is not
organized under the laws of the United States or any state thereof and (y) as
to Xxxxxxx Europe Limited (or, after the completion of the European
Reorganization and the assignment by Xxxxxxx Europe Limited to the New European
Headquarters Subsidiary pursuant to Section 9.08(a) in connection therewith,
the New European Headquarters Subsidiary), which is organized under the laws of
the United States or any state thereof, agrees, as soon as practicable after
receipt by it of a request by the Borrower to do so, to file all appropriate
forms and take other appropriate action to obtain a certificate or other
appropriate document from the appropriate governmental authority in the
jurisdiction imposing the relevant Taxes, establishing that it is entitled to
receive payments of principal and interest under this Agreement and the Notes
without deduction and free from withholding of any Taxes imposed by such
jurisdiction; provided that if it is unable, for any reason, to establish such
exemption, or to file such forms and, in any event, during such period of time
as such request for exemption is pending, the Borrower shall nonetheless remain
obligated under the terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by
the Borrower pursuant to this Section 2.13(d), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.13(d) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment
in full or cancellation of the Notes.
SECTION 2.14. COMPUTATION OF INTEREST AND FEES.
Interest on Base Rate Loans shall be computed on the basis of
a year of 365 or 366 days, as applicable, and paid for the actual number of
days elapsed (including the first day but excluding the last day). Interest on
Euro-Dollar Loans, Money Market Loans, Transaction Rate Loans and Foreign
Currency Loans shall be computed on the basis of a year of 360 days (except for
any Foreign Currency Loans outstanding in British pounds sterling, or, if
selected as a Foreign Currency pursuant to clause (iii) of the definition of
"Foreign Currency," in Australian dollars, Belgian francs, Canadian dollars,
Irish punts or New Zealand dollars, which shall be computed on the basis of a
year of 365 or 366 days, as the case may be) and paid for the actual number of
days elapsed, calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof. Facility fees and any
other fees payable hereunder shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day
but excluding the last day).
39
48
ARTICLE III.
CONDITIONS TO BORROWINGS
SECTION 3.01. CONDITIONS TO FIRST BORROWING.
The obligation of each Bank to make a Loan on the occasion of
the first Borrowing is subject to the satisfaction of the conditions set forth
in Section 3.02 and receipt by the Administrative Agent of the following (as to
the documents described in paragraphs (a),(c), (d)and (e) below, in sufficient
number of counterparts for delivery of a counterpart to each Bank and retention
of one counterpart by the Administrative Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission of such executed counterpart, with the original
to be sent to the Administrative Agent by overnight courier);
(b) a duly executed Syndicated Dollar Loan Note, a duly
executed Foreign Currency Loan Note (from each of Xxxxxxx Corporation
and Xxxxxxx Europe Limited) and a duly executed Money Market Loan Note
for the account of each Bank, a duly executed Swing Loan Note for the
account of Wachovia, in each case complying with the provisions of
Section 2.05, and a Guaranty from Xxxxxxx Corporation;
(c) an opinion letter of Xxxxxxx Xxxxx Xxxx & White LLP,
special counsel for the Borrower, substantially in the form of Exhibit
B dated as of the Closing Date;
(d) an opinion of Xxxxx, Day, Xxxxxx & Xxxxx, special
counsel for the Administrative Agent, dated as of the Closing Date,
substantially in the form of Exhibit C;
(e) a certificate (the "Closing Certificate")
substantially in the form of Exhibit G), dated as of the Closing Date,
signed by a principal financial officer of the Borrower, to the effect
that (i) no Default has occurred and is continuing on the date of the
first Borrowing and (ii) the representations and warranties of the
Borrower contained in Article IV are true on and as of the date of the
first Borrowing hereunder;
(f) all documents which the Administrative Agent or any
Bank may reasonably request relating to the existence of the Borrower,
the corporate authority for and the validity of this Agreement and the
Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent, including, without
limitation, a certificate of the Borrower substantially in the form of
Exhibit H (the "Officer's Certificate"), signed by the Secretary or an
Assistant Secretary of the Borrower, certifying as to the names, true
signatures and incumbency of the officer or officers of the Borrower
authorized to execute and deliver the Loan Documents, and certified
copies of the following items: (i) the Borrower's Charter, (ii) the
Borrower's Bylaws, (iii) a certificate of the Secretary of State of
the State of Alabama as to the existence of the Borrower as an Alabama
corporation and a certificate from the Alabama
40
49
Department of Revenue as to the good standing of the Borrower, and
(iv) the action taken by the Board of Directors of the Borrower
authorizing the Borrower's execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents to which the
Borrower is a party (and similar documents, to the extent reasonably
available, from Xxxxxxx Europe Limited);
(g) a Notice of Borrowing, or acceptance of a Transaction
Rate Quote or notification pursuant to Section 2.03(e) of acceptance
of one or more Money Market Quotes, as applicable; and
(h) receipt of the fees payable on the Closing Date
pursuant to the Arranger's Letter Agreement.
In addition, if the Borrower desires funding of a Euro-Dollar
Loan on the Closing Date, the Administrative Agent shall have received, 3
Euro-Dollar Business Days prior to the Closing Date, a funding indemnification
letter satisfactory to it, pursuant to which (i) the Administrative Agent and
the Borrower shall have agreed upon the interest rate, amount of Borrowing and
Interest Period for such Euro-Dollar Loan, and (ii) the Borrower shall
indemnify the Banks from any loss or expense arising from the failure to close
on the anticipated Closing Date identified in such letter or the failure to
borrow such Euro-Dollar Loan on such date.
SECTION 3.02. CONDITIONS TO ALL BORROWINGS.
The obligation of each Bank to make a Syndicated Loan or
Money Market Loan on the occasion of each Borrowing or of Wachovia to make a
Swing Loan is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing or notification pursuant to Section 2.03(e) of acceptance of
one or more Money Market Quotes, as applicable.
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of
the Borrower contained in Article IV of this Agreement shall be true
on and as of the date of such Borrowing (except to the extent any such
representation or warranty is expressly made as of a prior date); and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01(a), and in clause
(iii) of Section 2.03(a), shall have been satisfied.
Each Syndicated Borrowing, each Money Market Borrowing and
each Notice of Continuation or Conversion hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing as to
the truth and accuracy of the facts specified in paragraphs (b), (c) and (d) of
this Section; provided, that if such Borrowing is a Syndicated
41
50
Borrowing which consists solely of a Refunding Loan then, (i) if such Borrowing
is a Fixed Rate Borrowing or such Notice of Continuation or Conversion is to a
Fixed Rate Loan, such Borrowing or Notice of Continuation or Conversion shall
be deemed to be such a representation and warranty by the Borrower only as to
the matters set forth in paragraphs (b) and (d) above, and (ii) if such
Borrowing is a Base Rate Borrowing, or such Notice of Continuation or
Conversions is to a Base Rate Loan, such Borrowing or Notice of Continuation or
Conversion shall be deemed to be a representation and warranty by the Borrower
only as to the matters set forth in paragraph (d) above.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER.
The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Alabama, is duly
qualified to transact business in every jurisdiction where, by the nature of
its business, such qualification is necessary, and has all corporate powers and
all governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted, except where the failure to qualify or
have any such powers, licenses, authorizations, consent or approvals does not
have and could not reasonably be expected to cause a Material Adverse Effect.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION;
NO CONTRAVENTION.
The execution, delivery and performance by the Borrower of
this Agreement, the Notes and the other Loan Documents (i) are within the
Borrower's corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of or filing with,
any governmental body, agency or official, (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the charter or bylaws of the Borrower or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Borrower or any
of its Subsidiaries, provided that the aggregate outstanding Borrowings under
this Agreement do not exceed the limitations thereon contained in any such
other agreements or instruments and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. BINDING EFFECT.
This Agreement constitutes a valid and binding agreement of
the Borrower enforceable in accordance with its terms, and the Notes and the
other Loan Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of the Borrower
enforceable in accordance with their respective terms, provided that
42
51
the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04. FINANCIAL INFORMATION
(a) The consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of January 2, 1999 and the related
consolidated statements of income, shareholders' equity and cash flows for the
Fiscal Year then ended, reported on by Ernst & Young LLP, copies of which have
been delivered to each of the Banks, and the unaudited consolidated financial
statements of the Borrower for the interim period ended July 4, 1999 copies of
which have been delivered to each of the Banks, fairly present, in conformity
with GAAP, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such dates and their consolidated results of
operations and cash flows for such periods stated.
(b) Since January 2, 1999, except for any matters which
have been disclosed in the filings by the Borrower under the Securities
Exchange Act of 1934 made prior to the Closing Date and made available to the
Banks, there has been no event, act, condition or occurrence having a Material
Adverse Effect.
SECTION 4.05. NO LITIGATION.
There is no action, suit or proceeding pending, or to the
knowledge of the Borrower threatened, against or affecting the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official which could reasonably be expected to have a Material
Adverse Effect or which in any manner draws into question the validity of, or
would restrict the Borrower from performing its obligations under, this
Agreement, the Notes or any of the other Loan Documents.
SECTION 4.06. COMPLIANCE WITH ERISA
(a) The Borrower and each member of the Controlled Group
have fulfilled their obligations under the minimum funding standards of ERISA
and the Code with respect to each Plan and are in compliance in all material
respects with the presently applicable provisions of ERISA and the Code, and
have not incurred any liability to the PBGC or a Plan under Title IV of ERISA,
except where the failure to comply does not have and could not reasonably be
expected to cause a Material Adverse Effect.
(b) Neither the Borrower nor any member of the Controlled
Group is or ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES.
The Borrower and its Subsidiaries are in compliance with all
applicable laws, regulations and similar requirements of governmental
authorities, except where such compliance is being contested in good faith
through appropriate proceedings, and except where the failure to comply does
not have and could not reasonably be expected to cause a Material Adverse
Effect. There have been filed on behalf of the Borrower and its Subsidiaries
all Federal, state and
43
52
material local income, excise, property and other tax returns which are
required to be filed by them and all taxes shown as being due pursuant to such
returns or pursuant to any assessment received by or on behalf of the Borrower
or any Subsidiary have been paid, except taxes being contested in good faith
and against which, if requested by the Administrative Agent, the Borrower will
set up reserves in accordance with GAAP. The charges, accruals and reserves on
the books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate. United
States income tax returns of the Borrower and its Subsidiaries have been
examined and closed through the Fiscal Year ended January 1, 1994.
SECTION 4.08. SUBSIDIARIES
Each of the Borrower's Subsidiaries is an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of formation, is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such qualification is
necessary, and has all entity powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except where the failure to qualify does not have and could not
reasonably be expected to cause a Material Adverse Effect. The Borrower has no
Subsidiaries except for those Subsidiaries listed on Schedule 4.08, which
accurately sets forth each such Subsidiary's complete name and jurisdiction of
incorporation.
SECTION 4.09. INVESTMENT COMPANY ACT.
Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT
Neither the Borrower nor any of its Subsidiaries is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS
Each of the Borrower and its Consolidated Subsidiaries has
title to its properties sufficient for the conduct of its business, and none of
such property is subject to any Lien except as permitted in Section 5.17.
SECTION 4.12. NO DEFAULT
Neither the Borrower nor any of its Consolidated Subsidiaries
is in default under or with respect to any agreement, instrument or undertaking
to which it is a party or by which it or any of its property is bound which
could have or could reasonably be expected to cause a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
44
53
SECTION 4.13. FULL DISCLOSURE
All information heretofore furnished by the Borrower to the
Administrative Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Administrative Agent or any Bank
will be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all facts
known to the Borrower which could have or could reasonably be expected to cause
a Material Adverse Effect.
SECTION 4.14. ENVIRONMENTAL MATTERS
(a) Neither the Borrower nor any Subsidiary is subject to
any Environmental Liability which could have or could reasonably be expected to
cause a Material Adverse Effect and neither the Borrower nor any Subsidiary has
been designated as a potentially responsible party under CERCLA or under any
state statute similar to CERCLA. To the best of the Borrower's knowledge, none
of the Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties by the Borrower or its agents, or to the best of the
Borrower's knowledge, any Third Parties or are otherwise present at, on, in or
under the Properties, or, to the best of the Borrower's knowledge, at or from
any adjacent site or facility, except for Hazardous Materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed, or otherwise handled in the ordinary course of business in compliance
with all applicable Environmental Requirements, and except where the failure to
comply does not have and could not reasonably be expected to cause a Material
Adverse Effect.
(c) The Borrower, and each of its Subsidiaries and
Affiliates, has procured all Environmental Authorizations necessary for the
conduct of its business, and is in compliance with all Environmental
Requirements in connection with the operation of the Properties and the
Borrower's, and each of its Subsidiary's and Affiliate's, respective
businesses, except where the failure to comply does not have and could not
reasonably be expected to cause a Material Adverse Effect.
SECTION 4.15. CAPITAL STOCK
All Capital Stock, debentures, bonds, notes and all other
securities of the Borrower and its Subsidiaries presently issued and
outstanding are validly and properly issued in accordance with all applicable
laws, including, but not limited to, the "Blue Sky" laws of all applicable
states and the federal securities laws. The issued shares of Capital Stock of
the Borrower's Wholly Owned Subsidiaries are owned directly or indirectly by
the Borrower free and clear of any Lien or adverse claim. At least a majority
of the issued shares of capital stock
45
54
of each of the Borrower's other Subsidiaries (other than Wholly Owned
Subsidiaries) is owned by the Borrower free and clear of any Lien or adverse
claim.
SECTION 4.16. MARGIN STOCK
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any
Loan will be used to purchase or carry any Margin Stock, except for Permitted
Acquisitions and purchases of treasury stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock, or be used for any
purpose which violates, or which is inconsistent with, the provisions of
Regulation T, U or X.
SECTION 4.17. INSOLVENCY
After giving effect to the execution and delivery of the Loan
Documents and the making of the Loans under this Agreement: (i) the Borrower
will not (x) be "insolvent," within the meaning of such term as used in
O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of the "Bankruptcy Code", or
Section 2 of either the "UFTA" or the "UFCA", or as defined or used in any
"Other Applicable Law" (as those terms are defined below), or (y) be unable to
pay its debts generally as such debts become due within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or
(z) have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated, within the meaning of Section 548
of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and
(ii) the obligations of the Borrower under the Loan Documents and with respect
to the Loans will not be rendered avoidable under any Other Applicable Law. For
purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the United
States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA" means the
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any other
applicable law pertaining to fraudulent transfers or acts voidable by
creditors, in each case as such law may be amended from time to time.
SECTION 4.18. INSURANCE
The Borrower and each of its Subsidiaries has (either in the
name of the Borrower or in such Subsidiary's own name), with financially sound
and reputable insurance companies, insurance in at least such amounts and
against at least such risks (including on all its property, and public
liability and worker's compensation) as are usually insured against in the same
general area by companies of established repute engaged in the same or similar
business.
SECTION 4.19. Y2K PLAN
The Borrower has developed and has delivered to the
Administrative Agent and the Banks its plan (the "Y2K Plan") for making the
Mission Critical Systems and Equipment Year 2000 Compliant and Ready. The
Borrower and its Subsidiaries' have met the Y2K Plan milestones such that the
Borrower reasonably believes, after due diligence, that all Mission Critical
Systems and Equipment will be Year 2000 Compliant and Ready in accordance with
the Y2K Plan.
46
55
ARTICLE V.
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable hereunder or under any Note remains
unpaid:
SECTION 5.01. INFORMATION
The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 90 days
after the end of each Fiscal Year, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income, shareholders' equity and cash flows
for such Fiscal Year, setting forth in each case in comparative form the
figures for the previous fiscal year, all certified by Ernst & Young LLP or
other independent public accountants of nationally recognized standing, with
such certification to be free of exceptions and qualifications not acceptable
to the Required Banks;
(b) as soon as available and in any event within 45 days
after the end of each of the first 3 Fiscal Quarters of each Fiscal Year,
commencing with the Fiscal Year beginning on January 2, 2000, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end
of such Fiscal Quarter and the related statement of income and statement of
cash flows for such Fiscal Quarter and for the portion of the Fiscal Year ended
at the end of such Fiscal Quarter, setting forth in each case in comparative
form the figures for the corresponding Fiscal Quarter and the corresponding
portion of the previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (a) and (b) above, a
certificate, substantially in the form of Exhibit F (a "Compliance
Certificate"), of the chief financial officer or the chief accounting officer
of the Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.05, 5.16, 5.17, and 5.19 through 5.22, inclusive, on
the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of
annual financial statements referred to in paragraph (a) above, a statement of
the firm of independent public accountants which reported on such statements to
the effect that nothing has come to their attention to cause them to believe
that any Default existed on the date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a certificate of the chief
financial officer or the chief accounting
47
56
officer of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Borrower shall have filed with the Securities and Exchange
Commission;
(h) if and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of
such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate or appoint a trustee to administer any Plan, a copy of
such notice;
(i) at any time prior to January 1, 2000, within 5
Domestic Business Days after the Borrower becomes aware of any deviations from
the Y2K Plan which would cause compliance with the Y2K Plan to be delayed or
not achieved, a statement of the Chief Executive Officer, Chief Financial
Officer, or Chief Technology Officer setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect thereto;
(j) promptly upon the receipt thereof at any time prior
to January 1, 2000, a copy of any third party assessments of the Borrower's Y2K
Plan together with any recommendations made by such third party with respect to
Year 2000 compliance; and
(k) from time to time such additional information
regarding the financial position or business of the Borrower and its
Subsidiaries as the Administrative Agent, at the request of any Bank, may
reasonably request.
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS
The Borrower will (i) keep, and cause each Subsidiary to
keep, proper books of record and account in which full, true and correct
entries in conformity with GAAP shall be made of all dealings and transactions
in relation to its business and activities; and (ii) permit, and cause each
Subsidiary to permit, representatives of any Bank at such Bank's expense prior
to the occurrence of a Default and at the Borrower's expense during the
existence of a Default to visit and inspect any of their respective properties,
to examine and make abstracts from any of their respective books and records
and to discuss their respective affairs, finances and accounts with their
respective officers, employees and independent public accountants. The Borrower
agrees to cooperate and assist in such visits and inspections, in each case
upon reasonable notice and at such reasonable times and as often as may
reasonably be desired.
48
57
SECTION 5.03. MAINTENANCE OF EXISTENCE
The Borrower shall, and shall cause each Subsidiary to,
maintain its corporate existence and carry on its business in substantially the
same manner and in substantially the same fields as such business is now
carried on and maintained, except as permitted by Section 5.05.
SECTION 5.04. DISSOLUTION
Neither the Borrower nor any of its Subsidiaries shall suffer
or permit dissolution or liquidation either in whole or in part, except as
permitted by Section 5.05.
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS
The Borrower will not, nor will it permit any Subsidiary to,
consolidate or merge with or into, or sell, lease or otherwise transfer all or
any substantial part of its assets to, any other Person, or discontinue or
eliminate any business line or segment, or liquidate or dissolve, provided that
(a) the Borrower may merge with another Person if (i) such Person was organized
under the laws of the United States of America or one of its states, (ii) the
Borrower is the corporation surviving such merger and (iii) immediately after
giving effect to such merger, no Default shall have occurred and be continuing,
(b) Subsidiaries of the Borrower may merge with one another, and (c) the
foregoing limitation on the sale, lease or other transfer of assets, on the
discontinuation or elimination of a business line or segment, and on
liquidation and dissolution, shall not prohibit (1) the sale of Receivables
pursuant to the Receivables Securitization Program, (2) transfers of assets by
Xxxxxxx Corporation and by European Subsidiaries which existed on the Closing
Date to new European Subsidiaries as part of the European Reorganization or (3)
during any Fiscal Quarter, a transfer of assets or the discontinuance or
elimination of a business line or segment (in a single transaction or in a
series of related transactions), or any liquidation or dissolution of a
Subsidiary, unless the aggregate assets to be so transferred or utilized in a
business line or segment to be so discontinued or Subsidiary to be liquidated
or dissolved, when combined with all other assets transferred, and all other
assets utilized in all other business lines or segments discontinued or
Subsidiaries to be liquidated or dissolved, during such Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters, either (x) constituted more than 10%
of Consolidated Total Assets at the end of the most recent Fiscal Year
immediately preceding such Fiscal Quarter, or (y) contributed more than 10% of
Consolidated Operating Profits during the 4 Fiscal Quarters immediately
preceding such Fiscal Quarter, or (3) the liquidation or dissolution of any
inactive Subsidiary, or (4) any such action in connection with the
Restructuring Program.
SECTION 5.06. USE OF PROCEEDS
The proceeds of the Loans may be used for general corporate
purposes including, without limitation, refinancing other Debt, working
capital, capital expenditures, and Permitted Acquisitions; provided, that no
portion of the proceeds of the Loans will be used by the Borrower or any
Subsidiary (i) in connection with, whether directly or indirectly, any tender
offer for, or other acquisition of, stock of any corporation with a view
towards obtaining control of such other corporation, unless such tender offer
or other acquisition is to be made on a
49
58
negotiated basis with the approval of the Board of Directors of the Person to
be acquired, and the provisions of Section 5.16 would not be violated, (ii)
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, other than with respect
to Permitted Acquisitions and purchases of treasury stock or (iii) for any
purpose in violation of any applicable law or regulation.
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES
The Borrower will, and will cause each of its Subsidiaries
and each member of the Controlled Group to, comply with applicable laws
(including but not limited to ERISA), regulations and similar requirements of
governmental authorities (including but not limited to PBGC), except where the
necessity of such compliance is being contested in good faith through
appropriate proceedings diligently pursued. The Borrower will, and will cause
each of its Subsidiaries to, pay promptly when due all taxes, assessments,
governmental charges, claims for labor, supplies, rent and other obligations
which, if unpaid, might become a lien against the property of the Borrower or
any Subsidiary, except liabilities being contested in good faith and against
which, if requested by the Administrative Agent, the Borrower will set up
reserves in accordance with GAAP.
SECTION 5.08. INSURANCE
The Borrower will maintain, and will cause each of its
Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against
at least such risks (including on all its property, and public liability and
worker's compensation) as are usually insured against in the same general area
by companies of established repute engaged in the same or similar business.
SECTION 5.09. CHANGE IN FISCAL YEAR
The Borrower will not change its Fiscal Year without the
consent of the Required Banks.
SECTION 5.10. MAINTENANCE OF PROPERTY
Except as permitted by Section 5.05 or in connection with the
Restructuring Program, the Borrower shall, and shall cause each Subsidiary to,
maintain all of its properties and assets in good condition, repair and working
order, ordinary wear and tear excepted.
SECTION 5.11. ENVIRONMENTAL NOTICES
The Borrower shall furnish to the Banks and the Administrative
Agent prompt written notice of all material Environmental Liabilities of which
the Borrower has notice, pending, threatened or anticipated Environmental
Proceedings of which the Borrower has notice, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases at, on, in,
under or in any way affecting the Properties or any adjacent property, and all
facts, events, or conditions that could lead to any of the foregoing.
50
59
SECTION 5.12. ENVIRONMENTAL MATTERS
The Borrower and its Subsidiaries will not, and will not
permit any Third Party to, use, produce, manufacture, process, treat, recycle,
generate, store, dispose of, manage at, or otherwise handle, or ship or
transport to or from the Properties any Hazardous Materials except for
Hazardous Materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed, managed, or otherwise handled in the ordinary
course of business in material compliance with all applicable Environmental
Requirements.
SECTION 5.13. ENVIRONMENTAL RELEASE
The Borrower agrees that upon the occurrence of a material
Environmental Release at or on any of the Properties it will act immediately to
investigate the extent of, and to take appropriate remedial action to
eliminate, such Environmental Release, whether or not ordered or otherwise
directed to do so by any Environmental Authority.
SECTION 5.14. TRANSACTIONS WITH AFFILIATES
Neither the Borrower nor any of its Subsidiaries shall enter
into, or be a party to, any transaction with any Affiliate of the Borrower or
such Subsidiary (which Affiliate is not the Borrower or a Wholly Owned
Subsidiary), except as permitted by law and in the ordinary course of business
and pursuant to reasonable terms which are no less favorable to Borrower or
such Subsidiary than would be obtained in a comparable arm's length transaction
with a Person which is not an Affiliate, and except for Investments permitted
by Section 5.16.
SECTION 5.15. RESTRICTED PAYMENTS
The Borrower may not declare or make any Restricted Payment,
if after giving effect to the payment of any such Restricted Payment, an Event
of Default shall be in existence or be created thereby.
SECTION 5.16. INVESTMENTS
From and after the Closing Date, neither the Borrower nor any
of its Subsidiaries shall make Investments in any Person except (i) loans or
advances to officers, directors and employees (1) for relocation expenses in
connection with the Restructuring Program and (2) for other purposes not
exceeding $3,000,000 in the aggregate principal amount outstanding at any time,
in each case made in the ordinary course of business in accordance with
historical practices existing on the Closing Date; (ii) Investments by the
Borrower in a Receivables Subsidiary; (iii) Investments by the Receivables
Subsidiary in a Special Purpose Vehicle, consistent with Standard
Securitization Undertakings, (iv) loans and advances to a Receivables
Subsidiary evidenced by a Purchase Money Note; (v) deposits required by
government agencies or public utilities (including pertaining to taxes and
other similar charges), (vi) Investments in direct obligations of the United
States Government or any agency thereof maturing within one year after the date
of Investment, (vii) Investments in certificates of deposit issued by a
commercial bank whose credit is satisfactory to the Administrative Agent and in
certificates of deposit issued
51
60
by any banking subsidiary of Wachovia Corporation, AmSouth Bancorporation,
SunTrust Banks, Inc., SouthTrust Corporation, Regions Financial Corporation,
Synovus Financial Corporation and Aliant National Corporation or any Person who
succeeds to all, or substantially all, of the assets or business of any
thereof, (viii) Investments in commercial paper rated A1 or the equivalent
thereof by S&P or P1 or the equivalent thereof by Xxxxx'x and in either case
maturing within 270 days after the date of acquisition, (ix) Investments in
tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by S&P
and Aa or the equivalent thereof by Xxxxx'x, (x) Investments in variable rate
demand bonds maturing or with optional puts within one year or less from the
date of acquisition thereof, which, at the time of acquisition by the Borrower
or Subsidiary, are rated not lower than A or A-1 by S&P and not lower than A2
or P-1 by Xxxxx'x, (xi) Permitted Acquisitions, (xii) minimal capitalization by
Xxxxxxx Corporation of new European Subsidiaries as part of the European
Reorganization and (xiii) other Investments made on a cumulative basis since
the Closing Date which do not at any time exceed an aggregate amount
outstanding equal to 5% of Consolidated Tangible Net Worth as of the end of the
Fiscal Quarter ended immediately prior to the date of measurement; provided,
however, immediately after giving effect to the making of any Investment, no
Default shall have occurred and be continuing.
SECTION 5.17. PRIORITY DEBT
Neither the Borrower nor any Consolidated Subsidiary will
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, and the Borrower shall not permit any Subsidiary which is not a
Borrower or a Guarantor to incur any Debt, except:
(a) Liens existing on the date of this Agreement securing
Debt outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $25,000,000;
(b) any Lien existing on any specific fixed asset of any
corporation at the time such corporation becomes a Consolidated Subsidiary and
not created in contemplation of such event;
(c) any Lien on any specific fixed asset securing Debt
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring, constructing or improving such asset, provided that such Lien
attaches to such asset concurrently with or within 18 months after the
acquisition, completion, construction or improvement thereof;
(d) any Lien on any specific fixed asset of any
corporation existing at the time such corporation is merged or consolidated
with or into the Borrower or a Consolidated Subsidiary and not created in
contemplation of such event;
(e) any Lien existing on any specific fixed asset prior
to the acquisition thereof by the Borrower or a Consolidated Subsidiary and not
created in contemplation of such acquisition;
52
61
(f) Liens securing Debt owing by any Subsidiary to the
Borrower or to any Wholly Owned Subsidiary;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of the
foregoing paragraphs of this Section, provided that (i) such Debt is not
secured by any additional assets, and (ii) the amount of such Debt secured by
any such Lien is not increased;
(h) Liens incidental to the conduct of its business or
the ownership of its assets which (i) do not secure Debt and (ii) do not in the
aggregate materially detract from the value of its assets or materially impair
the use thereof in the operation of its business;
(i) any Lien on Margin Stock;
(j) Debt owing to the Borrower or another Subsidiary;
(k) Liens on Receivables Program Assets pursuant to a
Receivables Securitization Program;
(l) Receivables Program Obligations;
(m) Liens granted pursuant to or arising under this
Agreement; and
(n) Liens not otherwise permitted by the foregoing
paragraphs of this Section securing Debt (other than indebtedness represented
by the Notes), and Debt of Subsidiaries not otherwise permitted by paragraph
(j), in an aggregate principal amount at any time outstanding not to exceed 15%
of Consolidated Tangible Net Worth.
SECTION 5.18. RESTRICTIONS ON ABILITY OF SUBSIDIARIES TO
PAY DIVIDENDS
Except as required by applicable law and except as to
covenants in existence on the Closing Date (if any), the Borrower shall not
permit any Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any non-governmental contractual covenant
restricting the ability of any such Subsidiary to (i) pay any dividends or make
any other distributions on its Capital Stock or any other interest or (ii) make
or repay any loans or advances to the Borrower or the parent of such
Subsidiary.
SECTION 5.19. LIMITATION ON FUNDED DEBT OF BORROWER
The Borrower will not create, incur, assume or suffer to
exist any Debt having a maturity of one year or more from the date of issuance
("Funded Debt"), except (i) Debt incurred under this Agreement; (ii) Debt in an
aggregate amount equal to that in existence on the Closing Date (as it may be
refunded, refinanced or replaced, with no increase in principal amount); (iii)
Funded Debt which is rated BBB or Baa2 or better by S&P or Xxxxx'x and (iv)
other Funded Debt in an aggregate amount not exceeding $100,000,000.
53
62
SECTION 5.20. DEBT/EBITDA RATIO
The Debt/EBITDA Ratio will at all times be less than 3.25 to
1.00.
SECTION 5.21. MINIMUM CONSOLIDATED TANGIBLE NET WORTH
Consolidated Tangible Net Worth will at no time be less than
$445,000,000 plus the sum of (i) 50% of the cumulative Reported Net Income of
the Borrower and its Consolidated Subsidiaries during any period after the end
of any Fiscal Quarter following the Closing Date (taken as one accounting
period), calculated quarterly at the end of each Fiscal Quarter but excluding
from such calculations of Reported Net Income for purposes of this clause (i),
any Fiscal Quarter in which the Reported Net Income of the Borrower and its
Consolidated Subsidiaries is negative, and (ii) 100% of the cumulative Net
Proceeds of Capital Stock received during any period after the Closing Date,
calculated quarterly at the end of each Fiscal Quarter.
SECTION 5.22. RATIO OF CONSOLIDATED EBIT TO CONSOLIDATED
INTEREST EXPENSE
The ratio of Consolidated EBIT to Consolidated Interest
Expense for the Fiscal Quarter just ended and the immediately preceding 3
Fiscal Quarters will at no time be less than 2.5 to 1.0.
SECTION 5.23. Y2K COMPLIANCE
The Borrower will meet the milestones as to all Mission
Critical Systems and Equipment contained in the Y2K Plan (other than testing)
on or before October 15, 1999, and will have all Mission Critical Systems and
Equipment Year 2000 Compliant and Ready (including all internal and external
testing), on or before November 1, 1999.
ARTICLE VI.
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT
If one or more of the following events ("Events of Default")
shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal
of any Loan or shall fail to pay any interest on any Loan within 5 Domestic
Business Days after such interest shall become due, or shall fail to pay any
fee or other amount payable hereunder within 5 Domestic Business Days after
such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.01(e), 5.01(i), 5.01(j), 5.02(ii),
5.03 through 5.06, inclusive, Section 5.15 or Sections 5.20 through
5.23, inclusive; or
54
63
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in this
Agreement (other than those covered by paragraph (a) or (b) above) and
such failure shall not have been cured within (1) 10 days, in the case
of Sections 5.16 and 5.18, and (2) 30 days, in any other case, after
the earlier to occur of (i) written notice thereof has been given to
the Borrower by the Administrative Agent at the request of any Bank or
(ii) the Borrower otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in Article IV of this Agreement or in
any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect or
misleading in any material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding in an aggregate principal amount
in excess of $10,000,000 (other than the Notes) when due or within any
applicable grace period; or
(f) any event or condition shall occur which results in
the acceleration of the maturity of Debt outstanding in an aggregate
principal amount in excess of $10,000,000 of the Borrower or any
Subsidiary (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Subsidiary) or
enables (or, with the giving of notice or lapse of time or both, would
enable) the holders of such Debt or commitment or any Person acting on
such holders' behalf to accelerate the maturity thereof or terminate
any such commitment (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower or any
Subsidiary); or
(g) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally, or
shall admit in writing its inability, to pay its debts as they become
due, or shall take any corporate action to authorize any of the
foregoing; or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order
for relief shall be entered against the Borrower or any Subsidiary
under the federal bankruptcy laws as now or hereafter in effect; or
55
64
(i) the Borrower or any member of the Controlled Group
shall fail to pay when due any amount which it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of
intent to terminate a Plan or Plans shall be filed under Title IV of
ERISA by the Borrower, any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any such Plan or Plans or a
proceeding shall be instituted by a fiduciary of any such Plan or Plans
to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or the
Borrower or any other member of the Controlled Group shall enter into,
contribute or be obligated to contribute to, terminate or incur any
withdrawal liability with respect to, a Multiemployer Plan; provided,
in any of the foregoing cases, the amount required to be paid, or the
Unfunded Vested Liabilities under any such Plan, is in excess of
$10,000,000; or
(j) one or more judgments or orders for the payment of
money in an aggregate amount in excess of $10,000,000 shall be rendered
against the Borrower or any Subsidiary and such judgment or order shall
continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the
Borrower or any Subsidiary under Section 6323 of the Code or a lien of
the PBGC shall be filed against the Borrower or any Subsidiary under
Section 4068 of ERISA and in either case such lien is for an amount in
excess of $10,000,000 and shall remain undischarged for a period of 25
days after the date of filing; or
(i) 30 days after any Person or two or more Persons acting in
concert (other than the Xxxxxxx Family)shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934) of 30%
or more of the outstanding shares of the voting stock of the Borrower;
or (ii) as of any date a majority of the Board of Directors of the
Borrower consists of individuals who were not either (A) directors of
the Borrower as of the corresponding date of the previous year, (B)
selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in
clause (A), or (C) selected or nominated to become directors by the
Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A) and individuals described in clause
(B).
then, and in every such event, (i) the Administrative Agent
shall, if requested by the Required Banks, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, (ii) any
Bank may terminate its obligation to fund a Money Market Loan in
connection with any relevant Money Market Quote, and (iii) the
Administrative Agent shall, if requested by the Required Banks, by
notice to the Borrower declare the Notes (together with accrued
interest thereon), and all other amounts payable hereunder and under
the other Loan Documents, to be, and the Notes, including the Swing
Loan
56
65
Note (together with accrued interest thereon), and all other amounts
payable hereunder and under the other Loan Documents shall thereupon
become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Borrower together with interest at the Default Rate accruing on the
principal amount thereof from and after the date of such Event of
Default; provided that if any Event of Default specified in paragraph
(g) or (h) above occurs with respect to the Borrower, without any
notice to the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together with
accrued interest thereon) and all other amounts payable hereunder and
under the other Loan Documents shall automatically and without notice
become immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the
Borrower together with interest thereon at the Default Rate accruing on
the principal amount thereof from and after the date of such Event of
Default. Notwithstanding the foregoing, the Agent shall have available
to it all other remedies at law or equity, and shall exercise any one
or all of them at the request of the Required Banks.
SECTION 6.02. NOTICE OF DEFAULT
The Administrative Agent shall give notice to the Borrower of
any Default under Section 6.01(c) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII.
THE ADMINISTRATIVE AGENT
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES
Each Bank hereby irrevocably appoints and authorizes the
Administrative Agent to act as its agent hereunder and under the other Loan
Documents with such powers as are specifically delegated to the Administrative
Agent by the terms hereof and thereof, together with such other powers as are
reasonably incidental thereto. The Administrative Agent: (a) shall have no
duties or responsibilities except as expressly set forth in this Agreement and
the other Loan Documents, and shall not by reason of this Agreement or any
other Loan Document be a trustee for any Bank; (b) shall not be responsible to
the Banks for any recitals, statements, representations or warranties contained
in this Agreement or any other Loan Document, or in any certificate or other
document referred to or provided for in, or received by any Bank under, this
Agreement or any other Loan Document, or for the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or any other document referred to or provided for herein or therein or
for any failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks, and then only on terms and conditions
satisfactory to the Administrative Agent, and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or
57
66
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. The provisions
of this Article VII are solely for the benefit of the Administrative Agent and
the Banks, and the Borrower shall not have any rights as a third party
beneficiary of any of the provisions hereof. In performing its functions and
duties under this Agreement and under the other Loan Documents, the
Administrative Agent shall act solely as agent of the Banks and does not assume
and shall not be deemed to have assumed any obligation towards or relationship
of agency or trust with or for the Borrower. The duties of the Administrative
Agent shall be ministerial and administrative in nature, and the Administrative
Agent shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship in respect of any Bank.
[(b) Each Bank hereby designates SunTrust Bank, Atlanta as
the Syndication Agent and First Union National Bank as the Documentation Agent.
The Syndication Agent and the Documentation Agent, in such capacity, shall have
no duties or obligations whatsoever under this Agreement or any other Loan
Document or any other document or any matter related hereto and thereto, but
shall nevertheless be entitled to all the indemnities and other protection
afforded to the Administrative Agent under this Article VII.
SECTION 7.02. RELIANCE BY ADMINISTRATIVE AGENT
The Administrative Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Administrative Agent. As to any
matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and thereunder in accordance
with instructions signed by the Required Banks, and such instructions of the
Required Banks in any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
SECTION 7.03. DEFAULTS
The Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Loans) unless the Administrative
Agent has received notice from a Bank or the Borrower specifying such Default
or Event of Default and stating that such notice is a "Notice of Default". In
the event that the Administrative Agent receives such a notice of the
occurrence of a Default or an Event of Default, the Administrative Agent shall
give prompt notice thereof to the Banks. The Administrative Agent shall give
each Bank prompt notice of each nonpayment of principal of or interest on the
Loans whether or not it has received any notice of the occurrence of such
nonpayment. The Administrative Agent shall (subject to Section 9.06) take such
action hereunder with respect to such Default or Event of Default as shall be
directed by the Required Banks, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or
58
67
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Banks.
SECTION 7.04. RIGHTS OF ADMINISTRATIVE AGENT AND ITS
AFFILIATES AS A BANK
With respect to the Loans made by the Administrative Agent
and any Affiliate of the Administrative Agent, Wachovia in its capacity as a
Bank hereunder and any Affiliate of the Administrative Agent or such Affiliate
in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though Wachovia were
not acting as the Administrative Agent, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include Wachovia in its individual
capacity and any Affiliate of the Administrative Agent in its individual
capacity. The Administrative Agent and any Affiliate of the Administrative
Agent may (without having to account therefor to any Bank) accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with the Borrower (and any of the Borrower's Affiliates) as if
Wachovia were not acting as the Administrative Agent, and the Administrative
Agent and any Affiliate of the Administrative Agent may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and the Administrative Agent)
for services in connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Banks.
SECTION 7.05. INDEMNIFICATION
Each Bank severally agrees to indemnify the Administrative
Agent, to the extent the Administrative Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including, without limitation, counsel fees and
disbursements) or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any other Loan Document or any
other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (excluding, unless an Event of
Default has occurred and is continuing, the normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or any such other documents;
provided that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the
Administrative Agent; and provided further that no Designated Bank shall be
liable for any payment under this Section 7.05 so long as, and to the extent
that, its Designating Bank makes such payments. If any indemnity furnished to
the Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the Administrative
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES
THE ADMINISTRATIVE AGENT SHALL NOT BE RESPONSIBLE OR LIABLE
TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY PUNITIVE,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE
59
68
ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. PAYEE OF NOTE TREATED AS OWNER
The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof shall have been filed with the
Administrative Agent and the provisions of Section 9.08(c) have been satisfied.
Any requests, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of that
Note or of any Note or Notes issued in exchange therefor or replacement
thereof.
SECTION 7.08. NONRELIANCE ON ADMINISTRATIVE AGENT AND
OTHER BANKS
Each Bank agrees that it has, independently and without
reliance on the Administrative Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of the Borrower and decision to enter into this Agreement and that it
will, independently and without reliance upon the Administrative Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Administrative Agent shall not be required to keep itself (or
any Bank) informed as to the performance or observance by the Borrower of this
Agreement or any of the other Loan Documents or any other document referred to
or provided for herein or therein or to inspect the properties or books of the
Borrower or any other Person. Except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the
Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the affairs, financial
condition or business of the Borrower or any other Person (or any of their
Affiliates) which may come into the possession of the Administrative Agent.
SECTION 7.09. FAILURE TO ACT
Except for action expressly required of the Administrative
Agent hereunder or under the other Loan Documents, the Administrative Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction
by the Banks of their indemnification obligations under Section 7.05 against
any and all liability and expense which may be incurred by the Administrative
Agent by reason of taking, continuing to take, or failing to take any such
action.
SECTION 7.10. RESIGNATION OR REMOVAL OF ADMINISTRATIVE
AGENT.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by giving notice thereof to the Banks and the Borrower and the
Administrative Agent may be removed at any time with or without cause by the
Required Banks. Upon any such resignation or removal, the Required
60
69
Banks shall have the right to appoint a successor Administrative Agent, subject
to the approval of the Borrower, so long as no Default is in existence, which
approval shall not be unreasonably withheld or delayed. If no successor
Administrative Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent's notice of resignation or the Required Banks' removal of
the retiring Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Banks, appoint a successor Administrative Agent, subject to
the approval of the Borrower, so long as no Default is in existence, which
approval shall not be unreasonably withheld or delayed. Any successor
Administrative Agent shall be a bank which has a combined capital and surplus
of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the
provisions of this Article VII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder.
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE
INADEQUATE OR UNFAIR
If on or prior to the first day of any Interest Period:
(a) the Administrative Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered in the
relevant market for such Interest Period, or
(b) the Required Banks advise the Administrative Agent
that the London Interbank Offered Rate or IBOR, as determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Banks of funding its Fixed Rate Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower
and the Banks, whereupon until the Administrative Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make such type of Fixed Rate Loans, or to permit
continuations or conversions into such type of Fixed Rate Loans, shall be
suspended. Unless the Borrower notifies the Administrative Agent at least 2
Domestic Business Days before the date of any Borrowing of such type of Fixed
Rate Loans for which a Notice of Borrowing has previously been given, or
continuation or conversion into such type of Fixed Rate Loans for which a
Notice of Continuation or Conversion has previously been given, that it elects
not to borrow or so continue or convert on such date, such Borrowing shall
instead be made as a Base Rate Borrowing, or such Fixed Rate Loan shall be
converted to a Base Rate Loan.
61
70
SECTION 8.02. ILLEGALITY
If, after the date hereof, the adoption of any applicable
law, rule or regulation, or any change therein or any existing or future law,
rule or regulation, 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 (any such agency
being referred to as an "Authority" and any such event being referred to as a
"Change of Law"), or compliance by any Bank (or its Lending Office) with any
request or directive (whether or not having the force of law) of any Authority
shall make it unlawful or impossible for any Bank (or its Lending Office) to
make, maintain or fund its Euro-Dollar Loans or Foreign Currency Loans and such
Bank shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make or permit continuations or conversions of Euro-Dollar Loans
or Foreign Currency Loans, as the case may be, shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this Section, such
Bank shall designate a different Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall determine that it
may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans or Foreign Currency Loans, as the case may be, to maturity,
and shall so specify in such notice, the Borrower shall immediately prepay in
full the then outstanding principal amount of each Euro-Dollar Loan or Foreign
Currency Loan, as the case may be, of such Bank, together with accrued interest
thereon and any amount due such Bank pursuant to Section 8.05(a). Concurrently
with prepaying each such Euro-Dollar Loan or Foreign Currency Loan, as the case
may be, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans or Foreign Currency Loan,
as the case may be, of the other Banks), and such Bank shall make such a Base
Rate Loan.
SECTION 8.03. INCREASED COST AND REDUCED RETURN
(a) If after the date hereof, a Change of Law or
compliance by any Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement, including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding (A) with respect to any Euro-Dollar Loan
any such requirement included in an applicable Euro-Dollar Reserve
Percentage and (B) with respect to any Foreign Currency Loan any such
requirement included in the applicable Adjusted LIBOR Rate) against
assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or
on the United States market for certificates of deposit or the London
interbank market any other condition affecting its Fixed Rate Loans,
its Notes or its obligation to make Fixed Rate Loans;
62
71
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Fixed Rate Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount reasonably deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Administrative Agent) pursuant
and subject to paragraph (c) below, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If any Bank shall have determined that after the date
hereof the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any Authority, has or would have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Bank to be material, then from time to time, within 15 days after demand
by such Bank pursuant and subject to paragraph (c) below, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the reasonable judgment of such Bank, be otherwise materially disadvantageous
to such Bank. A certificate of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder, and including the calculations thereof in reasonable detail, shall
be conclusive in the absence of manifest error, provided that such
determination is made on a reasonable basis. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 (i) shall be
applicable with respect to any Participant, Assignee or other Transferee, and
any calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee and (ii) shall
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes.
SECTION 8.04. BASE RATE LOANS OR OTHER FIXED RATE LOANS
SUBSTITUTED FOR AFFECTED FIXED RATE LOANS
If (i) the obligation of any Bank to make or maintain any
type of Fixed Rate Loans has been suspended pursuant to Section 8.02 or (ii)
any Bank has demanded compensation under Section 8.03, and the Borrower shall,
by at least 5 Euro-Dollar Business Days' or Foreign Currency Business Days, as
applicable, prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and
63
72
until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank
as, or permitted to be continued as or converted into, Euro-Dollar
Loans or Foreign Currency Loans, as the case may be, shall be instead
be made as or converted into (A) Base Rate Loans, (B) if such
suspension or demand for compensation relates to Euro-Dollar Loans,
but not Foreign Currency Loans, as Foreign Currency Loans, and (C) if
such demand for compensation relates to Foreign Currency Loans, but
not Euro-Dollar Loans, as Euro-Dollar Loans, as the Borrower may elect
in the notice to such Bank through the Administrative Agent referred
to hereinabove (in all cases interest and principal on such Loans
shall be payable contemporaneously with the related Fixed Rate Loans
of the other Banks), and
(b) after each of its Euro-Dollar Loans or Foreign
Currency Loans, as the case may be, has been repaid, all payments of
principal which would otherwise be applied to repay such Fixed Rate
Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. COMPENSATION
Upon the request of any Bank, delivered to the Borrower and
the Administrative Agent, the Borrower shall pay to such Bank such amount or
amounts as shall compensate such Bank for any loss, cost or expense incurred by
such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.11,
2.13, 6.01, 8.02 or otherwise) of a Fixed Rate Loan on a date other
than the last day of an Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Fixed Rate
Loan on the date for such prepayment specified in the relevant notice
of prepayment hereunder; or
(c) any failure by the Borrower to borrow a Fixed Rate
Loan on the date for the Fixed Rate Borrowing of which such Fixed Rate
Loan is a part specified in the applicable Notice of Borrowing
delivered pursuant to Section 2.02 or notification of acceptance of a
Transaction Rate Quote pursuant to Section 2.01(b)(ii) or Money Market
Quotes pursuant to Section 2.03(e); or
(d) any failure by the Borrower to pay a Foreign Currency
Loan in the applicable Foreign Currency;
such compensation to include, without limitation, as applicable, (A) an amount
equal to the excess, if any, of (x) the amount of interest which would have
accrued on the amount so paid or prepaid or not prepaid or borrowed for the
period from the date of such payment, prepayment or failure to prepay or borrow
to the last day of the then current Interest Period for such Fixed Rate Loan
(or, in the case of a failure to prepay or borrow, the Interest Period for such
Fixed Rate Loan which would have commenced on the date of such failure to
prepay or borrow) at the applicable rate of interest for such Fixed Rate Loan
provided for herein over (y) the amount of
64
73
interest (as reasonably determined by such Bank) such Bank would have paid on
(i) deposits in Dollars of comparable amounts having terms comparable to such
period placed with it by leading banks in the London interbank market (if such
Loan is a Euro-Dollar Loan) or (ii) any deposit in a Foreign Currency of
comparable amounts having terms comparable to such period placed with it by
lending banks in the applicable interbank market for such Foreign Currency (if
such Fixed Rate Loan is a Foreign Currency Loan); or (B) any such loss, cost or
expense incurred by such Bank in liquidating or closing out any foreign
currency contract undertaken by such Bank in funding or maintaining such Fixed
Rate Loan (if such Fixed Rate Loan is a Foreign Currency Loan).
SECTION 8.06. FAILURE TO PAY IN FOREIGN CURRENCY. If any
Borrower is unable for any reason to effect payment in a Foreign Currency as
required by this Agreement or if any Borrower shall default in the Foreign
Currency, each Bank may, through the Administrative Agent, require such payment
to be made in Dollars in the Dollar Equivalent amount of such payment. In any
case in which any Borrower shall make such payment in Dollars, the Borrower
agrees to hold the Banks harmless from any loss incurred by the Banks arising
from any change in the value of Dollars in relation to such Foreign Currency
between the date such payment became due and the date of payment thereof.
SECTION 8.07. JUDGMENT CURRENCY. If for the purpose of
obtaining judgment in any court or enforcing any such judgment it is necessary
to convert any amount due in any Foreign Currency into any other currency, the
rate of exchange used shall be the Administrative Agent's spot rate of exchange
for the purchase of the Foreign Currency with such other currency at the close
of business on the Foreign Currency Business Day preceding the date on which
judgment is given or any order for payment is made. The obligation of the
Borrower in respect of any amount due from it hereunder shall, notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Administrative Agent of any payment in a currency
other than the relevant Foreign Currency the Administrative Agent is able (in
accordance with normal banking procedures) to purchase the relevant Foreign
Currency with such other currency. If the amount of the relevant Foreign
Currency that the Administrative Agent is able to purchase with such other
currency is less than the amount due in the relevant Foreign Currency,
notwithstanding any judgment or order, the Borrower shall indemnify the Banks
for the shortfall.
SECTION 8.08. REPLACEMENT OF BANKS
If any Bank (a "Notice Bank") makes demand for amounts owed
under Section 8.03 (other than due to any change in the Eurodollar Reserve
Percentage), or gives notice under Section 8.02 that it can no longer
participate in Euro-Dollar Loans, then in each case the Borrower shall have the
right, if no Default or Event of Default exists, and subject to the terms and
conditions set forth in Section 9.08(c), to designate an assignee (a
"Replacement Bank") to purchase the Notice Bank's share of outstanding
Syndicated Loans, Money Market Loans and all other obligations hereunder and to
assume the Notice Bank's obligations to the Borrower under this Agreement;
provided, that, any Replacement Bank must be reasonably acceptable to the
Administrative Agent and the Required Banks (and, in any event, may not be an
Affiliate of the
65
74
Borrower). Subject to the foregoing, the Notice Bank agrees to
assign without recourse to the Replacement Bank its share of outstanding
Syndicated Loans and Money Market Loans and its Commitment, and to delegate to
the Replacement Bank its obligations to the Borrower under this Agreement and
its future obligations to the Administrative Agent under this Agreement. Upon
such sale and delegation by the Notice Bank and the purchase and assumption by
the Replacement Bank, and compliance with the provisions of Section 9.08(c),
the Notice Bank shall cease to be a "Bank" hereunder and the Replacement Bank
shall become a "Bank" under this Agreement; provided, however, that any Notice
Bank shall continue to be entitled to the indemnification provisions contained
elsewhere herein.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01. NOTICES
All notices, requests and other communications to any party
hereunder shall be in writing (including telecopier or similar writing) and
shall be given to such party at its address or telecopier number set forth on
the signature pages hereof or such other address or telecopier number as such
party may hereafter specify for the purpose by notice to each other party. Each
such notice, request or other communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and the confirmation is received, (ii) if given by
mail, 3 Domestic Business Days after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (iii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.02. NO WAIVERS
No failure or delay by the Administrative Agent or any Bank
in exercising any right, power or privilege hereunder or under any Note or
other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. EXPENSES; DOCUMENTARY TAXES
The Borrower shall pay (i) all out-of-pocket expenses of the
Administrative Agent, including reasonable fees and disbursements of special
counsel for the Banks and the Administrative Agent, in connection with the
preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all out-of-pocket expenses incurred by the Administrative Agent and the
Banks, including reasonable fees and disbursements of counsel, in connection
with such Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses
66
75
incurred in enforcing this Agreement and the other Loan Documents against the
Borrower. The Borrower shall indemnify the Administrative Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents by the Borrower.
SECTION 9.04. INDEMNIFICATION
The Borrower shall indemnify the Administrative Agent, the
Banks and each Affiliate thereof and their respective directors, officers,
employees and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims or damages to which any of them may become subject,
insofar as such losses, liabilities, claims or damages arise out of or result
from any actual or proposed use by the Borrower of the proceeds of any
extension of credit by any Bank hereunder or breach by the Borrower of this
Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Administrative Agent
or any of the Banks to enforce this Agreement or any of the other Loan
Documents) or other proceeding (including, without limitation, any threatened
investigation or proceeding) relating to the foregoing, and the Borrower shall
reimburse the Administrative Agent and each Bank, and each Affiliate thereof
and their respective directors, officers, employees and agents, upon demand for
any expenses (including, without limitation, legal fees) incurred in connection
with any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified. If any cause
of action, suit, proceeding or claim arising from any of the foregoing is
brought against any Indemnified Person, whether such action, proceeding, suit
or claim shall be actual or threatened, or in preparation therefor, the
Borrower will have the right, at its expense, to assume the resistance and
defense of such cause of action, suit, proceeding or claim or cause the same to
be resisted and defended; provided that such Indemnified Person shall be
entitled (but not obligated) to participate jointly in such defense, in which
case such Indemnified Person will be responsible for its own legal fees or
other expenses, if any, related to such defense incurred subsequent to the
joint participation by such party in such defense. Notwithstanding the
foregoing, if any Indemnified Person shall have been advised by counsel chosen
by it that there may be one or more legal defenses available to such
Indemnified Person that are materially different from or additional to those
available to the Borrowers, the Indemnified Person may assume the defense of
such action with respect to such different or additional defenses and the
Borrower agrees to reimburse such Indemnified Person for the reasonable fees
and expenses of any counsel retained by the Indemnified Person.
SECTION 9.05. SETOFF; SHARING OF SETOFFS
(a) The Borrower hereby grants to the Administrative
Agent and each Bank and to Wachovia as to the Swing Loan Note, a lien for all
indebtedness and obligations owing to them from the Borrower upon all deposits
or deposit accounts, of any kind (other than trust and escrow accounts not
established for the benefit of the Administrative Agent and the Banks), or any
interest in any deposits or deposit accounts thereof, now or hereafter pledged,
mortgaged, transferred or assigned to the Administrative Agent or any such Bank
or otherwise in the possession or control of the Administrative Agent or any
such Bank for any purpose for the account or benefit of the Borrower and
including any balance of any deposit account or of any credit of the Borrower
with the Administrative Agent or any such Bank, whether now existing or
67
76
hereafter established hereby authorizing the Administrative Agent and each Bank
at any time or times (upon at least 2 Domestic Business Days' prior notice, if
no Event of Default is in existence) to apply such balances or any part thereof
to such of the indebtedness and obligations owing by the Borrower to the Banks
and/or the Administrative Agent then past due and in such amounts as they may
elect, and whether or not the collateral, if any, or the responsibility of
other Persons primarily, secondarily or otherwise liable may be deemed
adequate. For the purposes of this paragraph, all remittances and property
shall be deemed to be in the possession of the Administrative Agent or any such
Bank as soon as the same may be put in transit to it by mail or carrier or by
other bailee.
(b) Each Bank agrees that if it shall, by exercising any
right of setoff or counterclaim or resort to collateral security or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest owing with respect to the Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of all
principal and interest owing with respect to the Note held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of setoff or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.06. AMENDMENTS AND WAIVERS
(a) Any provision of this Agreement, the Notes or any
other Loan Documents may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Borrower and the Required Banks
(and, if the rights or duties of the Administrative Agent are affected thereby,
by the Administrative Agent); provided that, no such amendment or waiver shall,
unless signed by all Banks, (i) change the Commitment of any Bank or subject
any Bank to any additional obligation, (ii) reduce the principal of or the rate
of interest on any Loan or any fees (other than fees payable to the
Administrative Agent) hereunder, (iii) change the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder, (iv) reduce the
amount of principal, interest or fees due on any date fixed for the payment
thereof, (v) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the percentage of Banks, which shall
be required for the Banks or any of them to take any action
68
77
under this Section or any other provision of this Agreement, (vi) change the
manner of application of any payments made under this Agreement or the Notes,
(vii) release or substitute all or any substantial part of the collateral (if
any) held as security for the Loans, or (viii) release any Guarantee given to
support payment of the Loans.
(b) The Borrower will not solicit, request or negotiate
for or with respect to any proposed waiver or amendment of any of the
provisions of this Agreement other than through the Administrative Agent,
unless each Bank shall be informed thereof by the Borrower and shall be
afforded an opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an informed decision
with respect thereto. Executed or true and correct copies of any waiver or
consent effected pursuant to the provisions of this Agreement shall be
delivered by the Administrative Agent to each Bank forthwith following the date
on which the same shall have been executed and delivered by the requisite
percentage of Banks. The Borrower will not, directly or indirectly, pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any Bank (in its capacity as such) as
consideration for or as an inducement to the entering into by such Bank of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Banks.
(c) The Designated Bank hereby appoints Designating Bank
as Designated Bank's agent and attorney in fact and grants to the Designating
Bank an irrevocable power of attorney, coupled with an interest, to receive
payments made for the benefit of the Designated Bank under this Agreement, to
deliver and receive all communications and notices under this Agreement and
other Loan Documents and to exercise on the Designated Bank's behalf all rights
to vote and to grant and make approvals, waivers, consent of amendments to or
under this Agreement or other Loan Documents. Any document executed by such
agent on the Designated Bank's behalf in connection with this Agreement or
other Loan Documents shall be binding on the Designated Bank. The Borrower, the
Administrative Agent and each of the Banks may rely on and are beneficiaries of
the preceding provisions.
SECTION 9.07. NO MARGIN STOCK COLLATERAL
Each of the Banks represents to the Administrative Agent and
each of the other Banks that it in good faith is not, directly or indirectly
(by negative pledge or otherwise), relying upon any Margin Stock as collateral
in the extension or maintenance of the credit provided for in this Agreement.
SECTION 9.08. SUCCESSORS AND ASSIGNS
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that the Borrower may not assign or otherwise
transfer any of its rights under this Agreement, except that in connection with
the European Reorganization, so long as no Default or Event of Default is in
existence, Xxxxxxx Europe Limited may assign to the New European Headquarters
Subsidiary all of its rights and obligations under this Agreement and the Notes
and Loan Documents executed by it, and automatically upon satisfaction of each
of the following be released from such obligations, by delivering or causing to
be delivered to the Administrative Agent: (i) an
69
78
assignment and assumption agreement pertaining to the foregoing, with a consent
and reaffirmation of guaranty at the end thereof, executed by Xxxxxxx
Corporation and pertaining to the Guaranty, in each case in form and substance
satisfactory to the Administrative Agent, (ii) such corporate and
organizational documents pertaining to the New European Headquarters Subsidiary
of the types described in Section 3.01(f) relative to Xxxxxxx Europe Limited as
the Administrative Agent may reasonably request and (iii) a new Foreign
Currency Note in favor of each Bank, executed by the New European Headquarters
Subsidiary (which will be distributed to the Banks by the Administrative Agent,
whereupon the Banks will deliver to Xxxxxxx Corporation for cancellation the
Notes executed by Xxxxxxx Europe Limited).
(b) Any Bank may at any time sell to one or more Persons
(each a "Participant") participating interests in any Loan owing to such Bank,
any Note held by such Bank, any Commitment hereunder or any other interest of
such Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event shall a Bank
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Bank may agree that it will
not (except as provided below), without the consent of the Participant, agree
to (i) the change of any date fixed for the payment of principal of or interest
on the related loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related loan or loans, (iii) the change of the principal of the related
loan or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive
interest or fee (as the case may be) in respect of such participation, (v) the
release or substitution of all or any substantial part of the collateral (if
any) held as security for the Loans, or (vi) the release of any Guarantee given
to support payment of the Loans. Each Bank selling a participating interest in
any Loan, Note, Commitment or other interest under this Agreement, other than a
Money Market Loan or Money Market Loan Note or participating interest therein,
shall, within 10 Domestic Business Days of such sale, provide the Borrower and
the Administrative Agent with written notification stating that such sale has
occurred and identifying the Participant and the interest purchased by such
Participant. The Borrower agrees that each Participant shall be entitled to the
benefits of Article VIII with respect to its participation in Loans outstanding
from time to time.
(c) Any Bank may at any time assign to one or more banks
or financial institutions (each an "Assignee") all or, in the case of its
Syndicated Loans and Commitments, a proportionate part of all its Syndicated
Loans and Commitments, and of its rights and obligations under this Agreement,
the Notes and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance, executed by
such Assignee, such transferor Bank and the Administrative Agent (and, in the
case of an Assignee that is not then a Bank or an Affiliate or Related Fund of
a Bank), subject to clause (iii) below, by the Borrower; provided that (i) no
interest may be sold by a Bank pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent portions of the transferor
Bank's
70
79
Commitment, (ii) if a Bank is assigning only a portion of its Commitment, then,
the amount of the Commitment being assigned (determined as of the effective
date of the assignment) shall be in an amount not less than $5,000,000 (except
that there shall be no such minimum if the assignment is to any Bank or any
Affiliate or Related Fund of any Bank), and (iii) except during the continuance
of a Default, no interest may be sold by a Bank pursuant to this paragraph (c)
to any Assignee that is not then a Bank or an Affiliate or Related Fund of a
Bank without the consent of the Borrower and the Administrative Agent, which
consent shall not be unreasonably withheld. Upon (A) execution of the
Assignment and Acceptance by such transferor Bank, such Assignee, the
Administrative Agent and (if applicable) the Borrower, (B) delivery of an
executed copy of the Assignment and Acceptance to the Borrower and the
Administrative Agent, (C) payment by such Assignee to such transferor Bank of
an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, and (D) payment of a processing and recordation fee to the
Administrative Agent of (1) if such Assignee is a Bank or an Affiliate or
Related Fund of a Bank, $1,000, and (2) for any other Assignee, $3,500, such
Assignee shall for all purposes be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank under this Agreement to the same
extent as if it were an original party hereto with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by the Borrower, the Banks or the Administrative Agent shall be
required. Upon the consummation of any transfer to an Assignee pursuant to this
paragraph (c), the transferor Bank, the Administrative Agent and the Borrower
shall make appropriate arrangements so that, if required, a new Note is issued
to each of such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.09, the
Borrower authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower which
has been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any
greater payment under Section 2.13(d) or Section 8.03 than the transferor Bank
would have been entitled to receive with respect to the rights transferred,
unless such transfer is made with the Borrower's prior written consent or by
reason of the provisions of Section 8.02 or 8.03 requiring such Bank to
designate a different Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such
assigned Loans and/or obligations made by the Borrower to the assigning and/or
pledging Bank in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect of such assigned Loans and/or
obligations to the extent of such payment. No such assignment shall release the
assigning and/or pledging Bank from its obligations hereunder.
71
80
(g) Any Bank may at any time designate not more than one
Designated Bank to fund Money Market Loans on behalf of such Designating Bank
subject to the terms of Section 9.08(c), and the provisions of Section 9.08(c)
shall not apply to such designation. No Bank may have more than one Designated
Bank at any time. Such designation may occur either by the execution of the
signature pages hereof by such Bank and Designated Bank next to the appropriate
"Designating Bank" and "Designated Bank" captions, or by execution by such
parties of a Designation Agreement subsequent to the date hereof; provided,
that any Bank and its Designated Bank executing the signatures pages hereof as
"Designating Bank" and "Designated Bank", respectively, on the date hereof
shall be deemed to have executed a Designation Agreement, and shall be bound by
the respective representations, warranties and covenants contained therein, and
such designation shall be conclusively deemed to be acknowledged by the
Borrower and the Administrative Agent. The parties to each such designation
occurring subsequent to the execution date hereof shall execute and deliver to
the Administrative Agent and the Borrower for their acknowledgment a
Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Bank and a designee
representing that it is a Designated Bank and acknowledged by the Borrower, the
Administrative Agent will acknowledge such Designation Agreement and will give
prompt notice thereof to the Borrower and the other Banks, whereupon, (i) the
Borrower shall execute and deliver to the Designating Bank a Designated Bank
Note payable to the order of the Designated Bank, (ii) from and after the
effective date specified in the Designation Agreement, the Designated Bank
shall become a party to this Agreement with a right to make Money Market Loans
on behalf of its Designating Bank pursuant to Section 2.03(h), and (iii) the
Designated Bank shall not be required to make payments with respect to any
obligations in this Agreement except to the extent of excess cash flow of such
Designated Bank which is not otherwise required to repay obligations of such
Designated Bank which are then due and payable; provided, however, that
regardless of such designation and assumption by the Designated Bank, the
Designating Bank shall be and remain obligated to the Borrower, the
Administrative Agent and the Banks for each and every obligation of the
Designating Bank and its related Designated Bank with respect to this
Agreement, including, without limitation, any indemnification obligations under
Section 7.05 and any sums otherwise payable to the Borrower by the Designated
Bank. Each Designating Bank, or a specified branch or affiliate thereof, shall
serve as the administrative agent of its Designated Bank and shall on behalf of
its Designated Bank: (i) receive any and all payments made for the benefit of
such Designated Bank and (ii) give and received all communications and notices
and take all actions hereunder, including, without limitation, votes,
approvals, waivers, consents and amendments under or relating to this Agreement
and the other Loan Documents. Any such notice, communication, vote, approval,
waiver, consent or amendment shall be signed by a Designating Bank, or
specified branch or affiliate thereof, as administrative agent for its
Designated Bank and need not be signed by such Designated Bank on its own
behalf. The Borrower, the Administrative Agent and the Banks may rely thereon
without any requirement that the Designated Bank sign or acknowledge the same.
No Designated Bank may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than via an assignment to its
Designating Bank or Liquidity Bank (but any assignment to a Liquidity Bank
shall not curtail or affect the appointment or rights of the Designating Bank
pursuant to Section 9.06(c) or Section 4 of the Designation Agreement, which
72
81
appointment and rights are irrevocable), if any, or otherwise in accordance
with the provisions of Section 2.03(h).
SECTION 9.09. CONFIDENTIALITY
Each Bank agrees to exercise commercially reasonable efforts
to keep any financial information pertaining to the Borrower and its Affiliates
and any other information delivered or made available by the Borrower to it
which is clearly indicated to be confidential information, confidential from
anyone other than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided that nothing herein shall prevent any Bank
from disclosing such information (i) to any other Bank, (ii) upon the order of
any court or administrative agency, (iii) upon the request or demand of any
regulatory agency or authority having jurisdiction over such Bank, (iv) which
has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Bank or
their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vii) to such
Bank's legal counsel and independent auditors, (viii) to any actual or proposed
Participant, Assignee or other Transferee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section 9.09 and (ix) by any Designated Bank to any rating agency, commercial
paper dealer, or provider of a surety, guaranty or credit or liquidity
enhancement to such Designated Bank which has agreed in writing to be bound by
the provisions of this Section 9.09; provided that should disclosure of any
such confidential information be required by virtue of clause (ii) of the
immediately preceding sentence, to the extent permitted by law, any relevant
Bank shall promptly notify the Borrower of same so as to allow the Borrower to
seek a protective order or to take any other appropriate action; provided,
further, that, no Bank shall be required to delay compliance with any directive
to disclose any such information so as to allow the Borrower to effect any such
action.
SECTION 9.10. REPRESENTATION BY BANKS
Each Bank hereby represents that it is a commercial lender or
financial institution which makes loans in the ordinary course of its business
and that it will make its Loans hereunder for its own account in the ordinary
course of such business; provided that, subject to Section 9.08, the
disposition of the Note or Notes held by that Bank shall at all times be within
its exclusive control.
SECTION 9.11. OBLIGATIONS SEVERAL
The obligations of each Bank hereunder are several, and no
Bank shall be responsible for the obligations or commitment of any other Bank
hereunder. Nothing contained in this Agreement and no action taken by the Banks
pursuant hereto shall be deemed to constitute the Banks to be a partnership, an
association, a joint venture or any other kind of entity. The amounts payable
at any time hereunder to each Bank shall be a separate and independent debt,
and each Bank shall be entitled to protect and enforce its rights arising out
of this Agreement or any other Loan Document and it shall not be necessary for
any other Bank to be joined as an additional party in any proceeding for such
purpose.
73
82
SECTION 9.12. GEORGIA LAW
This Agreement and each Note shall be construed in accordance
with and governed by the law of the State of Georgia.
SECTION 9.13. SEVERABILITY
In case any one or more of the provisions contained in this
Agreement, the Notes or any of the other Loan Documents should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.14. INTEREST
In no event shall the amount of interest, and all charges,
amounts or fees contracted for, charged or collected pursuant to this
Agreement, the Notes or the other Loan Documents and deemed to be interest
under applicable law (collectively, "Interest") exceed the highest rate of
interest allowed by applicable law (the "Maximum Rate"), and in the event any
such payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower
shall notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
The right to accelerate maturity of any of the Loans does not include the right
to accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Administrative Agent and the Banks do not intend to
collect any unearned interest in the event of any such acceleration. All monies
paid to the Administrative Agent or the Banks hereunder or under any of the
Notes or the other Loan Documents, whether at maturity or by prepayment, shall
be subject to rebate of unearned interest as and to the extent required by
applicable law. By the execution of this Agreement, the Borrower covenants, to
the fullest extent permitted by law, that (i) the credit or return of any
Excess shall constitute the acceptance by the Borrower of such Excess, and (ii)
the Borrower shall not seek or pursue any other remedy, legal or equitable ,
against the Administrative Agent or any Bank, based in whole or in part upon
contracting for charging or receiving any Interest in excess of the Maximum
Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by the Administrative Agent or any Bank,
all interest at any time contracted for, charged or received from the Borrower
in connection with this Agreement, the Notes or any of the other Loan Documents
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread in equal parts throughout the full term of the
Commitments. The Borrower, the Administrative Agent and each Bank shall, to the
maximum extent permitted under applicable law, (i) characterize any
non-principal payment as an expense, fee or premium rather than as Interest and
(ii) exclude voluntary prepayments and the effects thereof. The provisions of
this Section shall be deemed to be incorporated into each Note and each of the
other Loan Documents (whether or not any provision of this Section is referred
to therein). All such Loan Documents and communications relating to any
Interest owed by the Borrower and all figures set forth therein shall, for the
sole purpose of computing the extent of obligations hereunder and under the
Notes and the other Loan Documents be
74
83
automatically recomputed by the Borrower, and by any court considering the
same, to give effect to the adjustments or credits required by this Section.
SECTION 9.15. INTERPRETATION
No provision of this Agreement or any of the other Loan
Documents shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured or dictated such
provision.
SECTION 9.16. WAIVER OF JURY TRIAL; CONSENT TO
JURISDICTION
To the fullest extent permitted by law, the Borrower (a) and
each of the Banks and the Administrative Agent irrevocably waives any and all
right to trial by jury in any legal proceeding arising out of this Agreement,
any of the other Loan Documents, or any of the transactions contemplated hereby
or thereby, (b) submits to the nonexclusive personal jurisdiction in the State
of Georgia, the courts thereof and the United States District Courts sitting
therein, for the enforcement of this Agreement, the Notes and the other Loan
Documents, (c) waives any and all personal rights under the law of any
jurisdiction to object on any basis (including, without limitation,
inconvenience of forum) to jurisdiction or venue within the State of Georgia
for the purpose of litigation to enforce this Agreement, the Notes or the other
Loan Documents, and (d) agrees that service of process may be made upon it in
the manner prescribed in Section 9.01 for the giving of notice to the Borrower.
Nothing herein contained, however, shall prevent the Administrative Agent from
bringing any action or exercising any rights against any security and against
the Borrower personally, and against any assets of the Borrower, within any
other state or jurisdiction.
SECTION 9.17. COUNTERPARTS
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
SECTION 9.18. SOURCE OF FUNDS -- ERISA
Each of the Banks hereby severally (and not jointly)
represents to the Borrower that no part of the funds to be used by such Bank to
fund the Loans hereunder from time to time constitutes (i) assets allocated to
any separate account maintained by such Bank in which any employee benefit plan
(or its related trust) has any interest nor (ii) any other assets of any
employee benefit plan. As used in this Section, the terms "employee benefit
plan" and "separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
SECTION 9.19. EUROPEAN ECONOMIC AND MONETARY UNION. (a)
In this Section 9.19 and in each other provision of this Agreement to which
reference is made in this Section 9.19 expressly or impliedly, the following
terms have the meanings given to them in this Section 9.19
75
84
"commencement of the third stage of EMU" means January 1,
1999.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of the euro.
"euro" means the single currency of the participating member
states as of the date, for each such participating member state, such
participating member state's national currency unit shall be substituted by the
euro.
"euro unit" means the currency unit of the euro.
"national currency unit" means the unit of currency of a
participating member state, as defined on the day before the commencement of
the third stage of EMU.
"participating member state" means each state so described in
any EMU legislation, and in particular, as of the commencement of the third
stage of EMU, Belgium, Germany, Spain, France, Ireland, Italy, Luxembourg,
Netherlands, Austria, Portugal and Finland.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"Transitional period" means the period beginning on January 1,
1999 and ending on December 31, 2001.
(b) The provisions of paragraphs (c) to (j) below
(inclusive) shall be effective at and from the commencement of the third stage
of EMU, provided, that if and to the extent that any such provision relates to
any state (or the currency of such state) that is not a participating member
state on the commencement of the third stage of EMU, such provisions shall
become effective in relation to such state (and the currency of such state) at
and from the date on which such state becomes a participating member state.
(c) Each obligation under this Agreement of a party to
this Agreement which has been denominated in the national currency unit of a
participating member state shall be redenominated into the euro unit in
accordance with EMU legislation, provided, that during the transitional period
an amount denominated either in the euro or in the national currency unit of a
participating member state and payable within that participating member state
by crediting an account of the creditor can be paid by the debtor either in the
euro unit or in the national currency unit, each party to this Agreement shall
be entitled to pay or repay any such amount either in the euro unit or in such
national currency unit.
76
85
(d) Any Foreign Currency Loan in the currency of a
participating member state shall be made in the euro unit, or, during the
transitional period, in a national currency unit requested by the Borrower.
(e) With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Foreign Currency Business Day" shall be construed as a reference to a day
(other than a Saturday or Sunday) on which banks are generally open for
business in
(i) Atlanta, Georgia, London and New York City; and
(ii) Frankfurt am Main, Germany or any other financial
center relating to the relevant national currency unit (or such principal
financial center or centers in such participating member state or states as the
Administrative Agent may from time to time nominate for this purpose).
(f) Sections 2.02(c) and 2.12(a) shall be construed so
that, in relation to the payment of any amount of euro units or national
currency units, such amount shall be made available to the Administrative Agent
in immediately, freely transferable, cleared funds to such account with such
bank in Frankfurt am Main, Germany (or such other principal financial center in
such participating member state as the Administrative Agent may from time to
time nominate for this purpose) as the Administrative Agent shall from time to
time nominate for this purpose.
(g) Any amount payable by the Administrative Agent to the
Banks under this Agreement in the currency of a participating member state
shall be paid in the euro unit, or, during the transitional period, in a
national currency unit in which borrowed.
(h) With respect to the payment of any amount denominated
in the euro or in a national currency unit, the Administrative Agent shall not
be liable to the Borrower or any of the Banks in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the
date required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds (in the euro unit or, as the case
may be, in a national currency unit) to the account with the bank in the
principal financial center in the participating member state which the Borrower
or, as the case may be, any Bank shall have specified for such purpose. In this
paragraph (h), "all relevant steps" means all such steps as may be prescribed
from time to time by the regulations or operating procedures of such clearing
or settlement system as the Administrative Agent may from time to time
determine for the purpose of clearing or settling payments of the euro.
(i) If the basis of accrual of interest or fees expressed in
this Agreement with respect to the currency of any state that becomes a
participating member state shall be inconsistent with any convention or
practice in the London interbank market for the basis of accrual of interest or
fees in respect of the euro, such convention or practice shall replace such
expressed basis effective as of and from the date on which such state becomes a
participating
77
86
member state; provided, that if any Foreign Currency Loan in the currency of
such state is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Foreign Currency Loan, at the end of
the then current Interest Period.
(j) Without prejudice and in addition to any method of
conversion or rounding prescribed by any EMU legislation and without prejudice
to the respective liabilities for indebtedness of the Borrower to the Banks and
the Banks to the Borrower under or pursuant to this Agreement.
(i) each reference in this Agreement to a minimum amount
(or an integral multiple thereof) in a national currency unit to be
paid to or by the Administrative Agent shall be replaced by a
reference to such reasonably comparable and convenient amount (or an
integral multiple thereof) in the euro unit as the Administrative
Agent may from time to time specify; and
(ii) except as expressly provided in this Section 9.19,
each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating member
states.
(k) The Borrower shall from time to time, at the request
of the Administrative Agent, pay to the Administrative Agent for the account of
each Bank the amount of any cost or increased cost incurred by, or of any
reduction in amount payable to or in the effective return on its capital to, or
of interest or other return forgone by, such Bank or any holding company of
such Bank as a result of the introduction of, changeover to or operation of the
euro in any participating member state.
SECTION 9.20. NO BANKRUPTCY PROCEEDINGS.
Each of the Borrower, the Banks and the Administrative Agent
agrees that it will not institute against any Designated Bank or join any other
Person in instituting against any Designated Bank any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
federal or state bankruptcy or similar law, for one year and one day after the
payment in full of the latest maturing commercial paper note issued by such
Designated Bank.
[Signatures are contained on the following pages.]
78
87
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
XXXXXXX CORPORATION (SEAL)
By: ____________________________________________
Xxxx X. Xxxxx
Executive Vice President and Chief Financial
Officer
Xxxxxxx Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopier number: 678-742-8995
Confirmation number: 000-000-0000
79
88
XXXXXXX EUROPE LIMITED (SEAL)
By: ____________________________________________
Name:
Title:
Xxxxxxx Europe Limited
c/x Xxxxxxx Corporation
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopier number: 678-742-8995
Confirmation number: 000-000-0000
80
89
COMMITMENTS WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank (SEAL)
$76,200,000(1) By: ____________________________________________
Title:
Lending Office
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Syndications Group
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
---------------
(1) Plus the commitment to fund 100% of the Foreign Currency Loans which
otherwise would be allocated to Aliant Bank, as provided in Section
2.01(a).
81
90
SUNTRUST BANK, ATLANTA,
As Syndication Agent and as a Bank (SEAL)
$48,000,000 By: ____________________________________________
Title:
Lending Office
SunTrust Bank, Atlanta
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
82
91
$48,000,000 FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Bank (SEAL)
By: ____________________________________________
Title:
Lending Office
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopier number: 704-383-7999
Confirmation number: 000-000-0000
83
92
$48,000,000 AMSOUTH BANK, as a Bank (SEAL)
By: ____________________________________________
Title:
Lending Office
AmSouth Bank
0000 0xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
84
93
$25,000,000 THE CHASE MANHATTAN BANK,
as a Bank (SEAL)
By: ____________________________________________
Title:
Lending Office
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Tio
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
85
94
$4,800,000 ALIANT BANK (SEAL)
By: ____________________________________________
Title:
Lending Office
Aliant Bank
000 Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
TOTAL COMMITMENTS
$250,000,000
86
95
EXHIBIT A-1
SYNDICATED DOLLAR LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, XXXXXXX CORPORATION, an Alabama
corporation (the "Borrower"), promises to pay to the order of
___________________________________________________________, a
____________________ (the "Bank"), for the account of its Lending Office, the
principal sum of ___________________________________ AND NO/100 DOLLARS
($__________), or such lesser amount as shall equal the aggregate unpaid
principal amount of all Syndicated Dollar Loans made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates and
in the amounts provided for Syndicated Dollar Loans in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of this
Syndicated Dollar Loan Note on the dates and at the rate or rates provided for
in the Credit Agreement. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount hereof shall
bear interest at the Default Rate, as provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Wachovia Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000,
or such other address as may be specified from time to time pursuant to the
Credit Agreement.
All Syndicated Dollar Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Syndicated Dollar Loan Note is one of the Syndicated
Dollar Loan Notes referred to in the Credit Agreement dated as of October 15,
1999 among Xxxxxxx Corporation, Xxxxxxx Europe Limited, the Banks listed on the
signature pages thereof, Wachovia Bank, N.A., as Administrative Agent, Suntrust
Bank, Atlanta, as Syndication Agent and First Union National Bank, as
Documentation Agent (as the same may be amended and modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the optional and mandatory prepayment and the repayment hereof
and the acceleration of the maturity hereof, as well as the obligation of the
Borrower to pay all costs of collection, including reasonable attorneys fees,
in the event this Syndicated Dollar Loan Note is collected by law or through an
attorney at law.
87
96
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided
for in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated
Dollar Loan Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
XXXXXXX CORPORATION (SEAL)
By:
---------------------------------------------
Xxxx X. Xxxxx
Executive Vice President and Chief Financial
Officer
88
97
Syndicated Dollar Loan Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------------------------
BASE RATE OR AMOUNT OF
EURO AMOUNT PRINCIPAL MATURITY NOTATION
DATE DOLLAR LOAN OF LOAN REPAID DATE MADE BY
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
89
98
EXHIBIT A-2
MONEY MARKET LOAN NOTE
As of October 15, 1999
For value received, XXXXXXX CORPORATION, an Alabama
corporation (the "Borrower"), promises to pay to the order of
______________________________________, a _______________ (the "Bank"), for the
account of its Lending Office, the principal sum of ONE HUNDRED TWENTY-FIVE
MILLION AND NO/100 DOLLARS ($125,000,000), or such lesser amount as shall equal
the aggregate unpaid principal amount of all Money Market Loans made by the
Bank to the Borrower pursuant to the Credit Agreement referred to below, on the
dates and in the amounts provided in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of this Money Market
Loan Note on the dates and at the rate or rates provided for in the Credit
Agreement referred to below. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount hereof shall
bear interest at the Default Rate, as provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Wachovia Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000,
or such other address as may be specified from time to time pursuant to the
Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Money Market Loan Note is one of the Money Market Loan
Notes referred to in the Credit Agreement dated as of October 15, 1999 among
Xxxxxxx Corporation, Xxxxxxx Europe Limited, the Banks listed on the signature
pages thereof, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank,
Atlanta, as Syndication Agent and First Union National Bank, as Documentation
Agent (as the same may be amended and modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the
same meanings. Reference is made to the Credit Agreement for provisions for the
optional and mandatory prepayment and the repayment hereof and the acceleration
of the maturity hereof, as well as the obligation of the Borrower to pay all
costs of collection, including reasonable attorneys fees, in the event this
Money Market Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided
for in the Credit Agreement.
90
99
IN WITNESS WHEREOF, the Borrower has caused this Money Market
Loan Note to be duly executed, under seal, by its duly authorized officer as of
the day and year first above written.
XXXXXXX CORPORATION (SEAL)
By:
---------------------------------------------
Xxxx X. Xxxxx
Executive Vice President and Chief Financial
Officer
91
100
Money Market Loan Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------------------------
AMOUNT OF STATED
INTEREST AMOUNT PRINCIPAL MATURITY NOTATION
DATE RATE OF LOAN REPAID DATE MADE BY
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
92
101
EXHIBIT A-3
SWING LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, XXXXXXX CORPORATION, an Alabama
corporation (the "Borrower"), promises to pay to the order of WACHOVIA BANK,
N.A., a national banking association (the "Bank"), for the account of its
Lending Office, the principal sum of Fifteen Million and No/100 Dollars
($15,000,000), or such lesser amount as shall equal the aggregate unpaid
principal amount of all Swing Loan made by the Bank to the Borrower pursuant to
the Credit Agreement referred to below, on the dates and in the amounts
provided in the Credit Agreement. The Borrower promises to pay interest on the
unpaid principal amount of this Swing Loan Note at the rate or rates provided
for Base Rate Loans or Transaction Rate Loans, as the case may be, on the dates
provided for in the Credit Agreement. Interest on any overdue principal of and,
to the extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Wachovia Bank of Georgia, N.A., 000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000-0000, or such other address as may be specified from
time to time pursuant to the Credit Agreement.
All Swing Loans made by the Bank, the respective maturities
thereof, and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Swing Loan Note is the Swing Loan Note referred to in
the Credit Agreement dated as of even date herewith among Xxxxxxx Corporation,
Xxxxxxx Europe Limited, the Banks listed on the signature pages thereof,
Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta, as
Syndication Agent and First Union National Bank, as Documentation Agent (as the
same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the optional and
mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof.
93
102
IN WITNESS WHEREOF, the Borrower has caused this Swing Loan
Note to be duly executed, under seal, by its duly authorized officer as of the
day and year first above written.
XXXXXXX CORPORATION (SEAL)
By:
---------------------------------------------
Xxxx X. Xxxxx
Executive Vice President and Chief Financial
Officer
94
103
Swing Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------------
AMOUNT OF
AMOUNT OF PRINCIPAL MATURITY NOTATION
DATE LOAN REPAID DATE MADE BY
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
95
104
EXHIBIT A-4
FOREIGN CURRENCY LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, XXXXXXX CORPORATION, an Alabama
corporation (the "Borrower"), promises to pay to the order of
____________________________________, a ____________________ (the "Bank"), for
the account of its Lending Office, the aggregate unpaid principal amount of all
Foreign Currency Loans made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Note on the dates and at the rate or rates provided for Foreign
Currency Loans in the Credit Agreement. Interest on any overdue principal of
and, to the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the applicable Foreign Currency in immediately available funds at the
office of Wachovia Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000-0000, or such other address as may be specified from time to time
pursuant to the Credit Agreement.
All Foreign Currency Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Foreign Currency Loan Notes referred
to in the Credit Agreement dated as of October 15, 1999 among Xxxxxxx
Corporation, Xxxxxxx Europe Limited, the Banks listed on the signature pages
thereof, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta,
as Syndication Agent and First Union National Bank, as Documentation Agent (as
the same may be amended and modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the
same meanings. Reference is made to the Credit Agreement for provisions for the
optional and mandatory prepayment and the repayment hereof and the acceleration
of the maturity hereof, as well as the obligation of the Borrower to pay all
costs of collection, including reasonable attorneys fees, in the event this
Foreign Currency Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided
for in the Credit Agreement.
96
105
IN WITNESS WHEREOF, the Borrower has caused this Foreign
Currency Loan Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
XXXXXXX CORPORATION (SEAL)
By:
---------------------------------------------
Xxxx X. Xxxxx
Executive Vice President and Chief Financial
Officer
97
106
FOREIGN CURRENCY LOAN NOTE (CONT'D)
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF ____________
DATED OCTOBER 15, 1999
PRINCIPAL MATURITY OF
AMOUNT OF LOAN INTEREST PRINCIPAL UNPAID
DATE AND CURRENCY PERIOD AMOUNT PAID BALANCE
------------------------------------------------------------------------------
98
107
EXHIBIT A-5
FOREIGN CURRENCY LOAN NOTE
Atlanta, Georgia
October 15, 1999
For value received, XXXXXXX EUROPE LIMITED, a United Kingdom
corporation (the "Borrower"), promises to pay to the order of
____________________________________, a ____________________ (the "Bank"), for
the account of its Lending Office, the aggregate unpaid principal amount of all
Foreign Currency Loans made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Note on the dates and at the rate or rates provided for Foreign
Currency Loans in the Credit Agreement. Interest on any overdue principal of
and, to the extent permitted by law, overdue interest on the principal amount
hereof shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the applicable Foreign Currency in immediately available funds at the
office of Wachovia Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000-0000, or such other address as may be specified from time to time
pursuant to the Credit Agreement.
All Foreign Currency Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Note is one of the Foreign Currency Loan Notes referred
to in the Credit Agreement dated as of October 15, 1999 among Xxxxxxx
Corporation, Xxxxxxx Europe Limited, the Banks listed on the signature pages
thereof, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta,
as Syndication Agent and First Union National Bank. as Documentation Agent (as
the same may be amended and modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the
same meanings. Reference is made to the Credit Agreement for provisions for the
optional and mandatory prepayment and the repayment hereof and the acceleration
of the maturity hereof, as well as the obligation of the Borrower to pay all
costs of collection, including reasonable attorneys fees, in the event this
Foreign Currency Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided
for in the Credit Agreement.
99
108
IN WITNESS WHEREOF, the Borrower has caused this Foreign
Currency Loan Note to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
XXXXXXX EUROPE LIMITED (SEAL)
By:
---------------------------------------------
Title
100
109
FOREIGN CURRENCY LOAN NOTE (CONT'D)
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF__________________________
DATED OCTOBER 15, 1999
PRINCIPAL MATURITY OF
AMOUNT OF LOAN INTEREST PRINCIPAL UNPAID
DATE AND CURRENCY PERIOD AMOUNT PAID BALANCE
------------------------------------------------------------------------------
101
110
EXHIBIT B
OPINION OF
Special Counsel of the Borrower
October 15, 1999]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Re: [$250,000,000.00] Credit Facility to Xxxxxxx Corporation
Ladies and Gentlemen:
We have acted as special counsel to Xxxxxxx Corporation, an
Alabama corporation (the "Borrower"), in connection with the Credit Agreement
(the "Credit Agreement") dated as of October 15, 1999, among Xxxxxxx
Corporation, Xxxxxxx Europe Limited, the banks listed on the signature pages
thereof (the "Banks"), Wachovia Bank, N.A., as Administrative Agent (the
"Administrative Agent"), Suntrust Bank, Atlanta, as Syndication Agent (the
"Syndication Agent"), and First Union National Bank, as Documentation Agent
(the "Documentation Agent", and together with the Administrative Agent and the
Syndication Agent, the "Agents"). Capitalized terms used herein without
definition have the respective meanings attributed thereto in the Credit
Agreement.
In so acting, we have participated in the preparation of the
Credit Agreement and the Notes being delivered to you today. We have also
examined and relied upon the accuracy of the representations and warranties as
to factual matters contained in and made pursuant to the Credit Agreement and
have examined and relied upon the originals, or copies certified or otherwise
identified to our satisfaction, of such records, documents, certificates and
other instruments as in our judgment are necessary or appropriate to enable us
to render the opinions expressed below. As to certain matters with respect to
our opinion, we have examined, and relied upon the accuracy of, certificates
from officers of the Borrower or its Subsidiaries. In all such examinations, we
have assumed the authenticity of all documents submitted to us as originals,
the genuineness of all signatures on original documents and the conformity to
such original documents of all copies submitted to us as certified, conformed,
photographic or telecopied copies, and as to certificates, telegraphic and
telephonic confirmations given by public officials,
102
111
we have assumed the same to have been properly given and to be accurate. In
addition and without limiting the foregoing, we have, with your permission and
without any independent investigation, assumed the following in connection with
the opinions rendered below:
(a) the genuineness of all signatures on the Credit Agreement
(other than the signature of the Borrower) and the authority of each of the
persons signing the Credit Agreement on behalf of such persons;
(b) that the Credit Agreement (i) has been duly authorized,
executed and delivered by all parties thereto (other than the Borrower), and
(ii) is valid, binding and enforceable against all parties thereto (other than
the Borrower) in accordance with its respective terms;
(c) that the Credit Agreement and the Guaranty and the
transactions reflected therein or contemplated thereby have been negotiated
either entirely outside the State of Alabama or through telephone conversations
between the Borrower, located in the State of Alabama, and employees and agents
of the Agents and the Banks located outside the State of Alabama; that the
Credit Agreement and the transactions reflected therein or contemplated thereby
have been executed and delivered, the proceeds of the Notes will be disbursed,
and the Notes and the Guaranty will be repaid or otherwise performed, entirely
outside the State of Alabama, and with respect to execution only, that the
Credit Agreement and the Notes will be signed first by the Borrower outside the
State of Alabama and then delivered by the Borrower in the State of Georgia for
acceptance and execution by the Banks in the State of Georgia; and that no
employee, officer, director or agent of the Agents or the Banks has visited the
State of Alabama for the purpose of negotiating, executing or delivering the
Credit Agreement although such persons may have visited the State of Alabama
for the sole purpose of investigating the business of the Borrower; and
(d) that each of the Agents and the Banks is duly qualified
to transact business in Alabama or is not required by applicable law to be so
qualified as a result of their activities in the State of Alabama other than
those actions described in clause (c) above.
Whenever opinions set forth herein are based on "our
knowledge" or are expressed "to our knowledge", the words "our knowledge" and
"to our knowledge" signify that, in the course of our representation of the
Borrower, no information has come to the attention of any attorney with this
firm who has devoted substantial attention to the transactions contemplated by
the Loan Documents which would give such attorney actual knowledge that any
such opinions or other matters are not accurate in any material respect.
However, we have not undertaken any investigation to determine the existence or
absence of such facts, and no inference as to our knowledge thereof shall be
drawn from the fact of our representation of any party or otherwise. Further,
as used in this opinion, the words "our knowledge" and "to our knowledge" and
similar language are intended to be limited to the actual knowledge of the
attorneys within our firm who have been directly involved in representing the
Borrower in connection with the transactions contemplated by the Loan
Documents.
103
112
Based upon the foregoing and subject to the qualifications,
limitations and exceptions set forth herein, we are of the following opinions:
1. The Borrower is a corporation, duly incorporated, validly
existing and in good standing under the laws of the State of Alabama and has
all corporate powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement, the Notes and the Guaranty (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the Restated
Articles of Incorporation or Bylaws of the Borrower, or of any agreement,
judgment, injunction, order, decree or other instrument which to our knowledge
is binding upon the Borrower, provided that the aggregate outstanding
Borrowings under the Credit Agreement do not exceed the limitations thereon
contained in any such other agreements or instruments, and (v) to our
knowledge, except as provided in the Credit Agreement, do not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
3. The Credit Agreement, the Notes and the Guaranty being
delivered to the Banks today have been duly executed and delivered by duly
authorized officers of the Borrower, and, if the substantive laws of the State
of Alabama were to be applied in any suit for the enforcement of the rights,
powers or remedies under the Credit Agreement, the Notes or the Guaranty, the
Credit Agreement, the Notes and the Guaranty would constitute the valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms, except as otherwise stated herein and
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws from time to time in effect affecting the enforcement of creditors' rights
and remedies generally; (ii) general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law), and the availability of the remedies of specific
performance, injunctive relief or other equitable remedies limited by statute
or subject to the discretion of the court before which such proceedings
therefor may be brought, (iii) the effect of federal or state securities laws
on the enforceability of provisions relating to indemnification or
contribution, (iv) standards of good faith, fair dealing and reasonableness
which may be applied by a court to the exercise of certain rights and remedies,
and (v) certain laws and judicial decisions of the State of Alabama which may
limit the enforceability of certain rights and remedies provided by the Credit
Agreement, the Notes or the Guaranty, none of which laws or judicial decisions
will render inadequate the rights and remedies to enforce the practical
benefits and security provided by such documents.
4. Each of Alexander City Flying Service, Inc. and Cross
Creek Apparel, Inc. (together, the "Specified Subsidiaries") is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation. DeSoto Xxxxx, Inc. ("DeSoto") is a corporation
validly existing and in good standing under the laws of its jurisdiction of
104
113
incorporation. Each of the Specified Subsidiaries and DeSoto has all corporate
powers required to carry on its business as now conducted and is qualified and
in good standing as a foreign corporation in each jurisdiction (other than the
jurisdiction of its incorporation) in which the nature of its activities or the
properties owned or leased by it make such qualification necessary, except
where the failure to be so qualified does not have and could not reasonably be
expected to cause a Material Adverse Effect.
5. To our knowledge, except for the suits disclosed in the
filings by the Borrower under the Securities Exchange Act of 1934 made prior to
the date hereof, there is no action, suit or proceeding pending, or threatened,
against or affecting the Borrower or any of its Subsidiaries before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could have a Material
Adverse Effect.
6. We believe that an Alabama court or a federal court
sitting in Alabama as the forum state and applying Alabama conflict of laws
rules (in either case an "Alabama Court") would give effect to the designation
by the parties of Georgia law as the governing law with respect to the Credit
Agreement, the Notes and the Guaranty, provided that the Agents and the Banks
carry the burden of proving that the particular provisions of the substantive
law of the State of Georgia sought to be applied in such action are the
substantive law of the State of Georgia and that the particular law sought to
be applied is not contrary to the public policy of the State of Alabama. We are
aware of no Alabama statute or case law that indicates that giving effect to
the provision of the Credit Agreement, the Notes and the Guaranty designating
Georgia law would be against Alabama law or public policy.
7. Neither the Borrower nor any of its Subsidiaries in an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
8. Neither the Borrower nor any of its Subsidiaries is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
The foregoing opinions are subject to the following
qualifications, limitations and exceptions:
(a) We express no opinion concerning the title of any party
to any real or personal property or the creation, perfection or priority of any
lien or security interest granted pursuant to any of the Loan Documents.
(b) We have not considered and express no opinion regarding
any federal or state securities or blue sky laws or regulations.
105
114
(c) No opinions are expressed herein regarding any provision
of the Loan Documents relating to waivers or which are in the nature of
waivers, including, without limitation, (a) any purported waiver under the Loan
Documents, or any purported consent thereunder, relating to the rights of any
party (including, without limitation, marshaling of assets, choice of or
consent to venue, forum or jurisdiction, reinstatement, rights of subrogation,
contribution and/or indemnity, right to trial by jury, statutes of limitations
and rights of redemption), or duties owing to it, existing as a matter of law
or equity, and (b) any provision which purports to waive any right or claim of
offset, or any right to assert any defense or counterclaim, or any provision
which provides for the transfer of a document or instrument free and clear from
all offsets, counterclaims and defenses against the assignor.
(d) No opinions are expressed herein regarding any provision
of the Loan Documents (i) relating to powers of attorney, releases from
liability or exculpation, (ii) which purports to establish evidentiary
standards (including provisions regarding the conclusive or presumptive
correctness of a person's determination) or to determine rights or obligations
on the basis of a person's satisfaction or lack of satisfaction, or discretion,
or which provides for resolution of conflicts among two or more provisions of a
single document, or two or more documents, (iii) which permits, or purports to
permit, a party to select or enforce inconsistent remedies, or (iv) which
constitutes, in form or in substance, an agreement, contract or stipulation to
confess judgment.
(e) In addition, and without limiting the foregoing, we point
out that Alabama law may in certain circumstances permit oral amendments,
consents and waivers to written contracts despite contractual provisions to the
contrary. Finally, we render no opinion as to the legality, validity, binding
nature or enforceability of any provision of the Credit Agreement, the Notes or
the Guaranty that provides for interest on interest, charges or fees or is in
the nature of a penalty; however, while we are aware of no Alabama statute or
case law which addresses the issue, we are of the judgment that, were the issue
to be presented to an Alabama Court under Alabama law, the existence of any
such provisions would not impair the enforceability of the Borrower's
obligations to pay the principal of and interest on the Notes or to pay its
obligations under the Guaranty.
(f) We express no opinion regarding due authorization by,
existence of, or validity, binding effect or enforceability as to Xxxxxxx
Europe Limited.
The opinions expressed herein are limited to the matters
stated herein and no opinion may be implied or inferred beyond the matters
expressly stated herein. The opinions expressed herein are as of the date
hereof, and we assume no obligation to update or supplement these opinions to
reflect any facts or circumstances which may hereafter come to our attention or
any changes in the law which may hereafter occur. The opinions expressed herein
are further limited in all respects to federal law of the United States and the
laws of the State of Alabama, and, with respect to the opinion set forth in
paragraph 4 above, the general business corporation law of the State of North
Carolina, and no opinion is expressed herein with respect to the laws of any
other jurisdiction or to the local laws, ordinances or rules of any
municipality, county or political subdivision of the State of Alabama. For
purposes of the opinion contained in
106
115
paragraph 3 above, we have assumed that the laws of the State of Georgia are
the same as those of the State of Alabama. We have made no independent
investigation of the laws of any other jurisdiction.
This opinion is furnished to you for your benefit and the
benefit of any permitted Assignee, Participant or other Transferee under the
Credit Agreement only, and no other person or entity shall be entitled to rely
on this opinion without our express written consent in each instance, except
that the law firm of Xxxxx, Day, Xxxxxx & Xxxxx, in rendering to you its
opinion dated of even date herewith concerning the Credit Agreement and the
Notes, may rely hereon. Subject to the foregoing, this opinion letter is not to
be quoted in whole or in part or otherwise referred to, nor is it to be filed
with or disclosed to any governmental agency or other person, without our prior
written consent except as required otherwise by applicable law, rule,
regulation or order of any court or regulatory authority.
Yours very truly,
107
116
EXHIBIT C
OPINION OF
XXXXX, DAY, XXXXXX & XXXXX, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
October 15, 1999]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of October 15, 1999, among Xxxxxxx
Corporation, an Alabama corporation (the "Borrower"), Xxxxxxx Europe Limited,
the banks listed on the signature pages thereof (the "Banks"), Wachovia Bank,
N.A., as Administrative Agent (the "Administrative Agent"), Suntrust Bank,
Atlanta, as Syndication Agent and First Union National Bank, as Documentation
Agent, and have acted as special counsel for the Administrative Agent for the
purpose of rendering this opinion pursuant to Section 3.01(d) of the Credit
Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal
Opinion Committee of the Corporate and Banking Law Section of the State Bar of
Georgia which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement, each of the
Notes and the Guaranty by or on behalf of the Borrower, we are of the opinion
that the Credit Agreement constitutes a valid and binding agreement of the
Borrower and each Note and the Guaranty constitutes valid and binding
obligations of the Borrower, in each case enforceable in accordance with its
terms except as: (i)
108
117
the enforceability thereof may be affected by bankruptcy, insolvency,
reorganization, fraudulent conveyance, voidable preference, moratorium or
similar laws applicable to creditors' rights or the collection of debtors'
obligations generally; (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and (iii) the enforceability of certain of the remedial, waiver
and other provisions of the Credit Agreement, the Notes and the Guaranty may be
further limited by the laws of the State of Georgia; provided that such
additional laws do not, in our opinion, substantially interfere with the
practical realization of the benefits expressed in the Credit Agreement, the
Notes or the Guaranty, except for the economic consequences of any procedural
delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction except the State of Georgia.
We express no opinion as to the effect of the compliance or noncompliance of
the Administrative Agent or any of the Banks with any state or federal laws or
regulations applicable to the Administrative Agent or any of the Banks by
reason of the legal or regulatory status or the nature of the business of the
Administrative Agent or any of the Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you and any
Assignee, Participant or other Transferee under the Credit Agreement without
our prior written consent.
Very truly yours,
109
118
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated ________________ ___, 19____
Reference is made to the Credit Agreement dated as of October
15, 1999 (together with all amendments and modifications thereto, the "Credit
Agreement") among Xxxxxxx Corporation, an Alabama corporation (the "Borrower"),
Xxxxxxx Europe Limited, the Banks (as defined in the Credit Agreement),
Wachovia Bank, N.A., as Administrative Agent (the "Administrative Agent"),
Suntrust Bank, Atlanta, as Syndication Agent and First Union National Bank, as
Documentation Agent). Terms defined in the Credit Agreement are used herein
with the same meaning.
__________________________ (the "Assignor") and
_________________________________________(the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse to the Assignor, and the Assignee hereby purchases and assumes from
the Assignor, a _______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a _______% interest (which on the
Effective Date hereof is $__________) in the Assignor's Commitment and a
________ interest (which on the Effective Date hereof is $___________________)
in the Syndicated Loans and Money Market Loans [and Swing Loans] owing to the
Assignor and a ____% interest in the Notes held by the Assignor (which on the
Effective Date hereof is $__________).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of the
interest being assigned by it hereunder, that such interest is free and clear
of any adverse claim and that as of the date hereof its Commitment (without
giving effect to assignments thereof which have not yet become effective) is
$__________ and the aggregate outstanding principal amount of Syndicated Loans
and Money Market Loans [and Swing Loans] owing to it (without giving effect to
assignments thereof which have not yet become effective) is
$___________________; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iii) attaches the Notes referred to in paragraph 1 above and
requests that the Administrative Agent exchange such Notes for new Notes as
follows each dated the Effective Date: [a Syndicated Dollar Loan Note in the
principal amount of $________________ and a new Foreign Currency Loan Note,
each payable to the order of the Assignor,] a Syndicated Dollar Loan Note in
the principal amount of $_______________ and a new Foreign Currency Loan Note,
each payable to the order of the Assignee, [a Money Market Loan Note payable to
110
119
the order of the Assignor,] and a Money Market Loan Note payable to the order
of the Assignee [and a Swing Loan Note payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii)
confirms that it is a bank or financial institution; (iv) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi) specifies as its
Lending Office (and address for notices) the office set forth beneath its name
on the signature pages hereof, (vii) represents and warrants that the
execution, delivery and performance of this Assignment and Acceptance are
within its corporate powers and have been duly authorized by all necessary
corporate action, (viii) makes the representation and warranty contained in
Section 9.18 of the Credit Agreement[, and (ix) attaches the forms prescribed
by the Internal Revenue Service of the United States certifying as to the
Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes or such other documents as are necessary to
indicate that all such payments are subject to such taxes at a rate reduced by
an applicable tax treaty].
4. The Effective Date for this Assignment and Acceptance shall be
_______________, _____(the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
execution and acceptance by the Administrative Agent and to the Borrower for
execution by the Borrower.
5. Upon such execution and acceptance by the Administrative Agent
[and execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and
after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent rights and obligations have been transferred to it
by this Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and (ii) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this Assignment and
Acceptance, relinquish its rights (other than under Sections 8.03, 9.03 and
9.04 of the Credit Agreement) and be released from its obligations under the
Credit Agreement.
6. Upon such execution and acceptance by the Administrative Agent
[and execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and
after the Effective Date, the Administrative Agent shall make all payments in
respect of the interest assigned hereby to the Assignee. The Assignor and
Assignee shall make all appropriate
111
120
adjustments in payments for periods prior to such acceptance by the
Administrative Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
--------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
--------------------------------------
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Administrative Agent
By:
--------------------------------------
Title:
XXXXXXX CORPORATION
IF REQUIRED BY THE CREDIT AGREEMENT
BY:
--------------------------------------
TITLE:
112
121
EXHIBIT E-1
NOTICE OF BORROWING
----------------- ----, -----
Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Syndications Group
Re: Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of October 15, 1999 by and
among Xxxxxxx Corporation and Xxxxxxx Europe Limited, as
Borrower, the Banks from time to time parties thereto,
Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank,
Atlanta, as Syndication Agent and First Union National Bank,
as Documentation Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used
herein shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to
Section 2.02 of the Credit Agreement.
[The Borrower] [Xxxxxxx Europe Limited], as the Borrower with
respect to Foreign Currency Borrowings]] hereby requests a [Euro-Dollar
Borrowing] [Base Rate Borrowing] [Foreign Currency Borrowing] [Swing Loan
Borrowing] in the aggregate principal amount of [the Dollar Equivalent of]
$__________ to be made on ______________, ______, and for interest to accrue
thereon at the rate established by the Credit Agreement for [Euro-Dollar Loans]
[Base Rate Loans] [Foreign Currency Loans]. [The duration of the Interest
Period with respect thereto shall be [1 month] [2 months] [3 months] [6
months]].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this _________ day of ______________,
______.
XXXXXXX CORPORATION
[AS AGENT FOR XXXXXXX EUROPE LIMITED] [ADD IF
APPROPRIATE]
By: _________________________________________
Title:
113
122
EXHIBIT E-2
NOTICE OF CONTINUATION OR CONVERSION
---------------------, ------
Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Syndications Group
Re: Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of October 15, 1999, by and
among Xxxxxxx Corporation, Xxxxxxx Europe Limited, the Banks
from time to time parties thereto, Wachovia Bank, N.A., as
Administrative Agent, Suntrust Bank, Atlanta, as Syndication
Agent and First Union National Bank, as Documentation Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used
herein shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Continuation or Conversion is delivered to you
pursuant to Section 2.04 of the Credit Agreement.
With respect to the [Euro-Dollar Loans] [Foreign Currency
Loans denominated in [specify Foreign Currency]] in the aggregate amount of
[the Dollar Equivalent of] $___________ which has an Interest Period ending on
_____________, [the Borrower] [Xxxxxxx Europe Limited, as the Borrower with
respect to Foreign Currency Borrowings]] hereby requests that such loan be
[converted to a] [Base Rate Loan] [Euro-Dollar Loan] [continued as a]
[Euro-Dollar Loan] [Foreign Currency Loan in the same Foreign Currency]2 in the
aggregate principal amount of [the Dollar Equivalent of] $__________ to be made
on such date, and for interest to accrue thereon at the rate established by the
Credit Agreement for [Base Rate Loans] [Euro-Dollar Loans] [Foreign Currency
Loans]. [The duration of the Interest Period with respect thereto shall be [1
month] [2 months] [3 months] [6 months]].
---------------
1 Note: Foreign Currency Loans may only be continued in the same Foreign
Currency, and may not be converted to any other type of Loan.
114
123
The Borrower has caused this Notice of Continuation or
Conversion to be executed and delivered by its duly authorized officer this
______ day of ____________, _____.
XXXXXXX CORPORATION
[AS AGENT FOR XXXXXXX EUROPE LIMITED] [ADD
IF APPROPRIATE]
By: ---------------------------------------
Title:
115
124
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of October
15, 1999 (as modified and supplemented and in effect from time to time, the
"Credit Agreement") among Xxxxxxx Corporation, Xxxxxxx Europe Limited, the
Banks from time to time parties thereto, Wachovia Bank, N.A., as Administrative
Agent, Suntrust Bank, Atlanta, as Syndication Agent and First Union National
Bank, as Documentation Agent. Capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
_____________________, the duly authorized [Chief Financial Officer/Chief
Accounting Officer] of the Borrower, hereby (i) certifies to the Administrative
Agent and the Banks that the information contained in the Compliance Check List
attached hereto is true, accurate and complete as of ____________________,
______, and that no Default is in existence on and as of the date hereof and
(ii) restates and reaffirms that the representations and warranties contained
in Article IV of the Credit Agreement are true on and as of the date hereof as
though restated on and as of this date.
XXXXXXX CORPORATION (SEAL)
By:
------------------------------------
Name and title of [Chief Financial
Officer/Chief Accounting Officer]
116
125
1. Consolidations, Mergers and Sales of Assets (Section 5.05)
The Borrower will not, nor will it permit any Subsidiary to . . . sell,
lease or otherwise transfer all or any substantial part of its assets
to, any other Person, or discontinue or eliminate any business line or
segment or liquidate or dissolve, provided that
(a) . . .
(b) . . ., and
(c) the foregoing limitation on the sale, lease or other
transfer of assets, on the discontinuation or elimination of a
business line or segment, and on liquidation and dissolution, shall
not prohibit (1) the sale of Receivables pursuant to the Receivables
Securitization Program, (2) transfers of assets by European
Subsidiaries which existed on the Closing Date to new European
Subsidiaries as part of the European Reorganization or (3) during any
Fiscal Quarter, a transfer of assets or the discontinuance or
elimination of a business line or segment (in a single transaction or
in a series of related transactions), or any liquidation or
dissolution of a Subsidiary, unless the aggregate assets to be so
transferred or utilized in a business line or segment to be so
discontinued or Subsidiary to be liquidated or dissolved, when
combined with all other assets transferred, and all other assets
utilized in all other business lines or segments discontinued or
Subsidiaries to be liquidated or dissolved, during such Fiscal Quarter
and the immediately preceding 3 Fiscal Quarters, either (x)
constituted more than 10% of Consolidated Total Assets at the end of
the most recent Fiscal Year immediately preceding such Fiscal Quarter,
or (y) contributed more than 10% of Consolidated Operating Profits
during the 4 Fiscal Quarters immediately preceding such Fiscal
Quarter, or (3) the liquidation or dissolution of any inactive
Subsidiary, or (4) any such action in connection with the
Restructuring Program.
Aggregate assets to be transferred or aggregate assets used in business $
line or segment to be discontinued or Subsidiary to be liquidated or ------------
dissolved
Assets transferred and all other assets utilized in all other business
$ lines or segments discontinued or Subsidiary to be
------------
liquidated or dissolved during current Fiscal Quarter and the
immediately preceding 3 Fiscal Quarters
Sum of (a) and (b) $
------------
Consolidated Total Assets for most recent Fiscal Year immediately
preceding $ current Fiscal Quarter
------------
10% of (d) $
------------
Limitation: (c) may not exceed (e)
117
126
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
Consolidated Operating Profits during the 4 Fiscal Quarters immediately $
preceding current Fiscal Quarter ------------
10% of (f) $
------------
Limitation: (c) may not exceed (g)
118
127
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
2. Investments (Section 5.16)
From and after the Closing Date, neither the Borrower nor any
of its Subsidiaries shall make Investments in any Person
except (i) loans or advances to officers, directors and
employees (1) for relocation expenses in connection with the
Restructuring Program and (2) for other purposes not
exceeding $3,000,000 in the aggregate principal amount
outstanding at any time, in each case made in the ordinary
course of business in accordance with historical practices
existing on the Closing Date; (ii) Investments by the
Borrower in a Receivables Subsidiary; (iii) Investments by
the Receivables Subsidiary in a Special Purpose Vehicle,
consistent with Standard Securitization Undertakings, (iv)
loans and advances to a Receivables Subsidiary evidenced by a
Purchase Money Note; (v) deposits required by government
agencies or public utilities (including pertaining to taxes
and other similar charges), (vi) Investments in direct
obligations of the United States Government or any agency
thereof maturing within one year after the date of
Investment, (vii) Investments in certificates of deposit
issued by a commercial bank whose credit is satisfactory to
the Administrative Agent and in certificates of deposit
issued by any banking subsidiary of Wachovia Corporation,
AmSouth Bancorporation, SunTrust Banks, Inc., SouthTrust
Corporation, Regions Financial Corporation, Synovus Financial
Corporation and Aliant National Corporation or any Person who
succeeds to all, or substantially all, of the assets or
business of any thereof, (viii) Investments in commercial
paper rated A1 or the equivalent thereof by S&P or P1 or the
equivalent thereof by Xxxxx'x and in either case maturing
within 270 days after the date of acquisition, (ix)
Investments in tender bonds the payment of the principal of
and interest on which is fully supported by a letter of
credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the
equivalent thereof by S&P and Aa or the equivalent thereof by
Xxxxx'x, (x) Investments in variable rate demand bonds
maturing or with optional puts within one year or less from
the date of acquisition thereof, which, at the time of
acquisition by the Borrower or Subsidiary, are rated not
lower than A or A-1 by S&P and not lower than A2 or P-1 by
Xxxxx'x, (xi) Permitted Acquisitions, (xii) minimal
capitalization by Xxxxxxx Corporation of new European
Subsidiaries in connection with the European Reorganization
and (xiii) other Investments made on a cumulative basis since
the Closing Date which do not at any time exceed an aggregate
amount outstanding equal to 5% of Consolidated Tangible Net
Worth as of the end of the Fiscal Quarter ended immediately
prior to the date of measurement; provided, however,
immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
119
128
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
Aggregate principal amount outstanding of loans or $
---------
advances to officers, directors and employees (other
than for relocation expenses in connection with the
Restructuring Program) in the ordinary course
of business in accordance with historical practices
existing on the Closing Date
Limitation $3,000,000
Other aggregate Investments since the Closing Date $
not permitted by clauses (ii) through (x), ---------
inclusive
Consolidated Tangible Net Worth
Schedule 3
5% of (c) $
---------
Limitation (b) may not exceed (d) $
---------
3. Priority Debt (Section 5.17)
Neither the Borrower nor any Consolidated Subsidiary will
create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, and the Borrower shall not
permit any Subsidiary which is not a Borrower or a Guarantor
to incur any Debt, except . . . Liens not otherwise permitted
by the foregoing paragraphs of this Section securing Debt
(other than indebtedness represented by the Notes), and Debt
of Subsidiaries not otherwise permitted by paragraph (j), in
an aggregate principal amount at any time outstanding not to
exceed 15% of Consolidated Tangible Net Worth.
Liens not permitted by paragraphs (a) through (i) and (k)
through (n) are described below:
Description of Lien and Property Amount of
subject to same Debt Secured
--------------- ------------
a. $
----------------------------- -----------
b. $
----------------------------- -----------
120
129
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
c. $
------------------------------------- ------------
d. $
------------------------------------- ------------
e. $
------------------------------------- ------------
f. $
------------------------------------- ------------
Total $
------------
(b) Aggregate amount of Debt not permitted by paragraph $
(j) ------------
(c) Sum of (a) and (b) $
------------
(d) Consolidated Tangible Net Worth $
------------
Schedule 3
(e) 15% of (d) $
------------
Limitation: (c) may not exceed (e)
4. Limitation on Funded Debt of Borrower. (Section 5.19)
The Borrower will not create, incur, assume or suffer to exist any
Debt having a maturity of one year or more from the date of issuance
("Funded Debt"), except (i) Debt incurred under this Agreement; (ii)
Debt in an aggregate amount equal to that in existence on the Closing
Date (as it may be refunded, refinanced or replaced, with no increase
in principal amount); (iii) Funded Debt which is rated BBB or Baa2 or
better by S&P or Xxxxx'x and (iv) other Funded Debt in an aggregate
amount not exceeding $100,000,000.
121
130
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
(a) Funded Debt not permitted by clauses (i), (ii) or (iii) $
----------
Limitation (a) may not exceed $100,000,000
5. Debt/EBITDA Ratio (Section 5.20)
The Debt/EBITDA Ratio will at all times be less than 3.25 to
1.00.
Consolidated Total Debt $
Schedule 2 ----------
Consolidated EBITDA $
Schedule 1 ----------
Ratio of (a) to (b) to 1.00
-----
Maximum ratio 3.25 to 1.00
6. Minimum Consolidated Tangible Net Worth (Section 5.21)
Consolidated Tangible Net Worth will at no time be less than
$445,000,000 plus the sum of (i) 50% of the cumulative
Reported Net Income of the Borrower and its Consolidated
Subsidiaries during any period after the end of any Fiscal
Quarter following the Closing Date (taken as one accounting
period), calculated quarterly at the end of each Fiscal
Quarter but excluding from such calculations of Reported Net
Income for purposes of this clause (i), any Fiscal Quarter in
which the Reported Net Income of the Borrower and its
Consolidated Subsidiaries is negative, and (ii) 100% of the
cumulative Net Proceeds of Capital Stock received during any
period after the Closing Date, calculated quarterly at the
end of each Fiscal Quarter.
122
131
(a) Consolidated Tangible Net Worth Schedule $
----------
(b) Cumulative Reported Net Income(1) of the
Borrower and its Consolidated Subsidiaries $
----------
(c) 50% of (b) $
----------
(d) cumulative Net Proceeds of Capital Stock
received after the Closing Date $
----------
(e) Sum of $445,000,000, (c) and (d) $
----------
Limitation: (a) may not be less than (e)
7. Ratio of Consolidated EBIT to Consolidated Interest Expense (Section
5.22)
The ratio of Consolidated EBIT to Consolidated Interest Expense for
the Fiscal Quarter just ended and the immediately preceding 3 Fiscal
Quarters will at no time be less than 2.5 to 1.0.
(a) Consolidated EBIT
Schedule 1
--------------------------------------------------- $
-------------
(b) Consolidated Interest Expense
Schedule 4 $
--------------------------------------------------- -------------
(c) Actual Ratio of (a) to (b) to 1.0
--------------------------------------------------- ---
Limitation (c) must be less than 2.5 to 1.0
---------------------------------------------------
--------------
(1) For the purposes of this section the calculation of Reported Net Income
excludes any Fiscal Quarter in which the Reported Net Income of the Borrower is
its Consolidated Subsidiaries is negative and 100% of the cumulative Net
Proceeds of Capital Stock received during any period after the Closing Date.
123
132
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
Schedule - 1
Consolidated EBITDA(1)
(a) Consolidated Net Income for:
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
Total $
-------------
(b) Consolidated Net Interest Expense for:
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
Total $
-------------
(c) Taxes on income for:
quarter $
--- --- -------------
quarter $
--- --- -------------
---------------
(1) For the purposes of this section the calculation of Reported Net Income
excludes any Fiscal Quarter in which the Reported Net Income of the Borrower is
its Consolidated Subsidiaries is negative and 100% of the cumulative Net
Proceeds of Capital Stock received during any period after the Closing Date.
124
133
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
quarter $
--- --- -------------
quarter $
--- --- -------------
Total $
-------------
(d) restructuring, relocation and other
unusual charges incurred in connection
with the Restructuring Program in Fiscal
Years 1998 through 2001, not exceeding,
on a pre-tax basis, (i) $61,078,000 in
the third Fiscal Quarter of Fiscal Year
1998, (ii) $13,929,000 in the fourth
Fiscal Quarter of Fiscal Year 1998,
(iii) $26,900,800 in the first Fiscal
Quarter of Fiscal Year 1999, (iv)
$4,374,500 in the second Fiscal Quarter
of Fiscal Year 1999 and (v) an aggregate
of $102,026,000 in the period from and
including the third Fiscal Quarter of
Fiscal Year 1999 through the end of
Fiscal Year 2001; and in any event the
aggregate of all such charges on an
after-tax basis shall not exceed
$125,000,000
(e) Depreciation expense for:
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
Total $
-------------
(f) Amortization expense for:
quarter $
--- --- -------------
quarter $
--- --- -------------
125
134
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
quarter $
--- --- -------------
quarter $
--- --- -------------
Total $
-------------
(g) Other non-cash charges for:
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
Total $
-------------
TOTAL CONSOLIDATED EBITDA (sum of
(a) through (g)) $
-------------
126
135
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
Schedule 2
CONSOLIDATED TOTAL DEBT
(1) obligations for borrowed money(1) $
--------------
(2) obligations of such Person evidenced by bonds, $
debentures, notes or other similar instruments --------------
(3) obligations of such Person to pay the deferred $
purchase price of property or services, except --------------
trade accounts payable arising in the
ordinary course of business
(4) obligations as lessee under capital leases $
--------------
(5) Redeemable Preferred Stock of such Person (in the $
event such Person is a corporation) --------------
(6) principal amounts outstanding and owed to parties other $
than the Borrower or any Subsidiary under the items --------------
described in clause (a) of the definition of Receivables
Program Obligations
(7) other Debts of the types described in (1) through (6) $
above of Persons other than the Borrower or a Consolidated --------------
Subsidiary which are Guaranteed by the Borrowers or any
Consolidated Subsidiary(2)
---------------
(1) Include the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
financing product where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in
accordance with GAAP.
(2) Include such Debt of any partnership or unincorporated joint venture
in which such Person is a general partner or a joint venturer, other than
non-recourse Debt of such partnership or unincorporated joint venture.
127
136
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
Schedule 3
CONSOLIDATED TANGIBLE NET WORTH
(a) Stockholders' Equity $
-------------
(b) Value as set forth or reflected on the most recent
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries, prepared in accordance with
GAAP, of the following:
(1) Any surplus resulting from any write-up $
of assets subsequent to July 4, 1999; -------------
(2) All assets which would be treated as intangible $
assets for balance sheet presentation purposes -------------
under GAAP, including without limitation
goodwill (whether representing the excess of
cost over book value of assets acquired, or
otherwise), trademarks, tradenames, copyrights,
patents and technologies, and unamortized debt $
discount and expense -------------
(3) To the extent not included in (2), any amount at $
which shares of Capital Stock of the Borrower -------------
appear as an asset on the balance sheet of the
Borrower and its Consolidated Subsidiaries
(4) Loans or advances to stockholders, directors, $
officers or employees, except(1) for relocation -------------
expenses in connection with the Restructuring
Program and (2) for other purposes not
exceeding $3,000,000 in the aggregate principal
amount outstanding at any time, in each case
made in the ordinary course of business in
accordance with historical practices existing on
the Closing Date
128
137
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
Total of (1) through (4) $
-------------
TOTAL CONSOLIDATED TANGIBLE NET WORTH
(difference of (a) less (b) $
-------------
129
138
COMPLIANCE CHECK LIST
Xxxxxxx Corporation
------------------------
--------------, -----
Schedule - 4
Consolidated Interest Expense
Consolidated Net Interest Expense for:
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
quarter $
--- --- -------------
Total $
-------------
130
139
EXHIBIT G
XXXXXXX CORPORATION
CLOSING CERTIFICATE
Reference is made to the Credit Agreement (the "Credit
Agreement") dated as of October 15, 1999, among Xxxxxxx Corporation and Xxxxxxx
Europe Limited, as Borrower, the Banks listed therein, Wachovia Bank, N.A., as
Administrative Agent, Suntrust Bank, Atlanta, as Syndication Agent and First
Union National Bank, as Documentation Agent. Capitalized terms used herein have
the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
______________________________, the duly authorized ____________ of the
Borrower hereby certifies to the Administrative Agent and the Banks that (i) no
Default has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof.
Certified as of October 15, 1999.
By:
-----------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
131
140
EXHIBIT H
XXXXXXX CORPORATION
SECRETARY'S CERTIFICATE
The undersigned, __________________________________,
______________________, Secretary of Xxxxxxx Corporation, an Alabama corporation
(the "Borrower"), hereby certifies that [s]he has been duly elected, qualified
and is acting in such capacity and that, as such, [s]he is familiar with the
facts herein certified and is duly authorized to certify the same, and hereby
further certifies, in connection with the Credit Agreement dated as of October
15, 1999 among the Borrower, Wachovia Bank, N.A., as Administrative Agent,
Suntrust Bank, Atlanta, as Syndication Agent and First Union National Bank, as
Documentation Agent, and the Banks listed on the signature pages thereof, that:
1. Attached hereto as Exhibit A is a complete and correct
copy of the Certificate of Incorporation of the Borrower as in full
force and effect on the date hereof as certified by the Secretary of
State of the State of Alabama, the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct
copy of the Bylaws of the Borrower as in full force and effect on the
date hereof.
3. Attached hereto as Exhibit C is a complete and correct
copy of the resolutions duly adopted by the Board of Directors of the
Borrower on ____________ ___, 19___ authorizing the execution and
delivery of, the Credit Agreement, the Notes and the other Loan
Documents (as such terms are defined in the Credit Agreement) to which
the Borrower is a party. Such resolutions have not been repealed or
amended and are in full force and effect, and no other resolutions or
consents have been adopted by the Board of Directors of the Borrower
in connection therewith.
4. __________________, who is ______________________ of the
Borrower signed the Credit Agreement, the Notes and the other Loan
Documents to which the Borrower is a party, was duly elected,
qualified and acting as such at the time [s]he signed the Credit
Agreement, the Notes and other Loan Documents to which the Borrower is
a party, and [his/her] signature appearing on the Credit Agreement,
the Notes and the other Loan Documents to which the Borrower is a
party is [his/her] genuine signature.
132
141
IN WITNESS WHEREOF, the undersigned has hereunto set
[his/her] hand as of October 15, 1999.
[SIMILAR CERTIFICATE TO BE PROVIDED AS TO XXXXXXX EUROPE LIMITED,
TO THE EXTENT REASONABLY AVAILABLE].
------------------------------------------------
133
142
EXHIBIT I
MONEY MARKET QUOTE REQUEST
Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Syndications Group
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance with
Section 2.03 of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of October 15, 1999, among Xxxxxxx Corporation
and Xxxxxxx Europe Limited, as Borrower, the Banks from time to time parties
thereto, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta,
as Syndication Agent and First Union National Bank, as Documentation Agent.
Terms defined in the Credit Agreement are used herein as defined therein.
The Borrower hereby requests that the Administrative Agent
obtain quotes for a Money Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall
be ______________, 19_____ (the "Money Market Borrowing Date").(1)
2. The aggregate amount of the Money Market Borrowing shall
be $______________.(2)
3. The Stated Maturity Date(s) applicable to the Money
Market Borrowing shall be _____ days.(3)
* All numbered footnotes appear on the last page of this Exhibit I.
Very truly yours,
XXXXXXX CORPORATION
By:
-------------------------
Title:
---------------
(1) The date must be a Euro-Dollar Business Day
(2) The amount of the Money Market Borrowing is subject to Section
2.03(a) and (b).
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii). The
Borrower may request that up to 2 different Stated Maturity Dates be
applicable to any Money Market Borrowing, provided that (i) each such
Stated Maturity Date shall be deemed to be a separate Money Market
Quote Request and (ii) the Borrower shall specify the amounts of such
Money Market Borrowing to be subject to each such different Stated
Maturity Date.
134
143
EXHIBIT J
MONEY MARKET QUOTE
Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Syndications Group
Re: Money Market Quote to
This Money Market Quote is given in accordance with Section
2.03(c)(ii) of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of October 15, 1999, among Xxxxxxx Corporation
and Xxxxxxx Europe Limited, as Borrower, the Banks from time to time parties
thereto, Wachovia Bank, N.A., as Administrative Agent, Suntrust Bank, Atlanta,
as Syndication Agent and First Union National Bank, as Documentation Agent.
Terms defined in the Credit Agreement are used herein as defined therein.
In response to the Borrower's Money Market Quote Request
dated ________________, 19___, we hereby make the following Money Market Quote
on the following terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3._________________________ Date of Money Market Borrowing:(1)
4. We hereby offer to make Money Market Loan(s) in the
following maximum principal amounts for the following
Interest Periods and at the following rates:
MAXIMUM STATED
PRINCIPAL MATURITY RATE
AMOUNT(2) DATE(3) PER ANNUM(4)
---------- -------- ------------
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Credit Agreement, irrevocably obligate(s) us to make the Money Market Loan(s)
for which any offer(s) [is] [are] accepted, in whole or in part (subject to the
last sentence of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
By:
----------------------------
Authorized Officer
Dated:
---------
---------------
(1) As specified in the related Money Market Quote Request
(2) The principal amount bid for each Stated Maturity Date may not
exceed the principal amount requested. Money Market Quotes
must be made for at least [$5,000,000] or a larger integral
multiple of [$1,000,000].
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii).
(4) Subject to Section 2.03(c)(ii)(C).
135
144
EXHIBIT K
Form of Designation Agreement
Dated __________________, _______
Reference is made to that certain Credit Agreement dated as
of October 15, 1999 (as amended prior to the date hereof and as it may
hereafter be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") by and among Xxxxxxx Corporation and Xxxxxxx Europe
Limited, as the Borrower, the Banks parties thereto, Wachovia Bank, N.A., as
Administrative Agent, Suntrust Bank, Atlanta, as Syndication Agent and First
Union National Bank, as Documentation Agent. Terms defined in the Credit
Agreement are used herein with the same meaning.
[NAME OF DESIGNATING BANK] (the "Designating Bank") and [NAME
OF DESIGNEE] (the "Designee") agree as follows:
1. Pursuant to Section 9.08(h) of the Credit Agreement, the
Designating Bank hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make Money Market
Loans pursuant to Section 2.03(h) of the Credit Agreement. Any
assignment by Designating Bank to Designee of its rights to make a
Money Market Loan pursuant to such Section 2.03(h) shall be effective
at the time of the funding of such Money Market Loan and not before
such time.
2. Except as set forth in Section 7, below, the Designating
Bank makes no representation or warranty and assumes no responsibility
pursuant to this Designation Agreement with respect to (a) any
statements, warranties or representations made in or in connection
with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document
or any other instrument and document furnished pursuant thereto and
(b) the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under any Loan
Document or any other instrument or document furnished pursuant
thereto.
3. The Designee (a) confirms that it has received a copy of
each Loan Document, together with copies of the financial statements
referred to in Sections 4.04 and 5.01(a) and (b) (for periods for
which such financial statements are available) of the Credit Agreement
and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this
Designation Agreement; (b) agrees that it will independently and
without reliance upon the Administrative Agent, the Designating Bank
or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under any Loan Document; (c)
confirms that it is a Designated Bank; (d) appoints and authorizes the
Administrative Agent to take such action as the Administrative Agent
on its behalf and to exercise such powers and discretion under any
Loan Document as are delegated to the Administrative Agent by the
terms thereof, together with such powers and discretion as are
reasonably
136
145
incidental thereto; and (e) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of any Loan
Document are required to be performed by it as a Bank.
4. The Designee hereby appoints the Designating Bank as
Designee's agent and attorney in fact and grants to the Designating
Bank an irrevocable power of attorney, coupled with an interest, to
receive payments made for the benefit of Designee under the Credit
Agreement, to deliver and receive all communications and notices under
the Credit Agreement and other Loan Documents and to exercise on
Designee's behalf all rights to vote and to grant and make approvals,
waivers, consent of amendments to or under the Credit Agreement or
other Loan Documents. Any document executed by such agent on the
Designee's behalf in connection with the Credit Agreement or other
Loan Documents shall be binding on the Designee. The Borrower, the
Administrative Agent and each of the Banks may rely on and are
beneficiaries of the preceding provisions.
5. Following the execution of this Designation Agreement by
the Designating Bank and its Designee, it will be delivered to the
Borrower for acknowledgment and to the Administrative Agent for
acknowledgment and recording by the Administrative Agent. The
effective date for this Designation Agreement (the "Effective Date")
shall be the date of acknowledgment hereof by the Administrative
Agent, unless otherwise specified on the signature page thereto.
6. The Designating Bank and, by execution of their respective
acknowledgments below, the Borrower and the Administrative Agent, each
hereby (i) acknowledges that the Designee is relying on the
non-petition provisions of Section 9.20 of the Credit Agreement as
agreed to by all signatories thereto and (ii) reaffirms that it will
not institute against the Designee or join any other Person in
instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any federal
or state bankruptcy or similar law for one year and one day after the
payment in full of the latest maturing commercial paper note issued by
the Designee.
7. The Designating Bank unconditionally agrees to pay or
reimburse the Designee and save the Designee harmless against all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
mature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as
such, in any way relating to or arising out of this Agreement or any
other Loan Documents or any action taken or omitted by the Designee
hereunder or thereunder, provided that the Designating Bank shall not
be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements if the same results from the Designee's gross negligence
or willful misconduct.
8. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, the Designee shall be a party to the
Credit Agreement with a right to make Money Market Loans as a
Designated Bank pursuant to Section 2.03(h) of the
137
146
Credit Agreement and the rights and obligations of a Designated Bank
related thereto; provided, however, that the Designee shall not be
required to make payments with respect to such obligations except to
the extent of excess cash flow of the Designee which is not otherwise
required to repay obligations of the Designee Bank which is not
otherwise required to repay obligations of the Designee Bank which re
then due and payable. Notwithstanding the foregoing, the Designating
Bank shall be and remain obligated to the Borrower, the Administrative
Agent and the Banks for each and every of the obligations of the
Designee and the Designating Bank with respect to the Credit
Agreement, including, without limitation, any indemnification
obligations under Section 7.05 of the Credit Agreement and any sums
otherwise payable to the Borrower by the Designee.
9. This Designation Agreement shall be governed by and
construed in accordance with the laws of the State of [GEORGIA][NEW
YORK][OTHER JURISDICTION CHOSEN BY DESIGNATING BANK AND DESIGNATED
BANK].
10. This Designation Agreement may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature
page to this Designation Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart of this
Designation Agreement.
138
147
IN WITNESS WHEREOF, the Designating Bank and the Designee
intending to be legally bound, have caused this Designation Agreement to be
executed by their officers thereunto duly authorized as of the date first above
written.
[NAME OF DESIGNATING BANK]
as Designating Bank
By:
--------------------------------
Title:
[NAME OF DESIGNEE], as Designee
By:
--------------------------------
Title:
Lending Office (and for notices):
-----------------------------------
-----------------------------------
-----------------------------------
Acknowledged this ____ day Acknowledged this ____ day
of ______________ ____, ____ of ______________ __, ____
(the Effective Date)
WACHOVIA BANK, NA
-----------------------------------
As the Administrative Agent as the Borrower
By: By:
-------------------------------- --------------------------------
Title Title:
139
148
EXHIBIT L
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of October 15,
1999, by XXXXXXX CORPORATION, an Alabama corporation (the "Guarantor) in favor
of the Administrative Agent, for the ratable benefit of the Banks, under the
Credit Agreement referred to below;
W I T N E S S E T H :
WHEREAS, Xxxxxxx Corporation (the Guarantor") and Xxxxxxx
Europe Limited, as a Borrower only with respect to Foreign Currencies (the
Foreign Currency Borrower"), Wachovia Bank, N.A., as Administrative Agent (the
"Administrative Agent"), SunTrust Bank, Atlanta, as Syndication Agent, First
Union National Bank., as Documentation Agent and certain other Banks from time
to time party thereto have entered into a certain Credit Agreement dated as
October 15, 1999 (as amended as of the date hereof and as it may be amended or
modified further from time to time, the "Credit Agreement"), providing, subject
to the terms and conditions thereof, for extensions of credit to be made by the
Banks to the Foreign Currency Borrower which will the benefit the Guarantor;
WHEREAS, it is required under Section 3.01 of the Credit
Agreement that the Guarantor execute and deliver this Guaranty whereby it shall
guarantee the payment when due of all principal, interest and other amounts
that shall be at any time payable by the Foreign Currency Borrower under the
Credit Agreement, the Foreign Currency Loan Notes and the other Loan Documents
executed by it; and
WHEREAS, in consideration of the ownership of the Foreign
Currency Borrower by the Guarantor, and in order to induce the Banks and the
Administrative Agent to enter into and maintain the credit facilities under the
Credit Agreement, the Guarantor is willing to guarantee the obligations of the
Foreign Currency Borrower under the Credit Agreement, the Notes and the other
Loan Documents executed by it;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. THE GUARANTY. The Guarantor hereby unconditionally
guarantees (i) the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on each Foreign
Currency Loan Note issued by the Foreign Currency Borrower pursuant to the
Credit Agreement, and the full and punctual payment of all other amounts payable
by the Foreign Currency Borrower under the Credit Agreement, including,
140
149
without limitation, all Foreign Currency Loans made to the Foreign Currency
Borrower and interest thereon, and (ii) the timely performance of all other
obligations of the Foreign Currency Borrower under the Credit Agreement and the
other Loan Documents executed by it (all of the foregoing obligations being
referred to collectively as the "Guaranteed Obligations"). Upon failure by the
Foreign Currency Borrower to pay punctually any such amount or perform such
obligations, the Guarantor agrees that it shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in the Credit
Agreement, the relevant Note or the relevant Loan Document, as the case may be,
or perform such obligation in accordance with the terms and conditions therefor
specified in the Credit Agreement or the other Loan Documents, and pay all
costs of collection, including reasonable attorneys fees; provided that,
notwithstanding the provisions of O.C.G.A. ss. 13-1-11(a)(2) to the contrary,
the Guarantor shall not be obligated to pay more than the attorneys fees
actually incurred in connection with such collection.
SECTION 3. GUARANTY UNCONDITIONAL. The obligations of the
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement,
compromise, waiver or release in respect of any obligation of the
Foreign Currency Borrower under the Credit Agreement, any Note, or any
other Loan Document, by operation of law or otherwise or any
obligation of any other guarantor of any of the Guaranteed
Obligations;
(ii) any modification or amendment of or
supplement to the Credit Agreement, any Note, or any other Loan
Document;
(iii) any release, nonperfection or invalidity of
any direct or indirect security, if any, for any obligation of the
Foreign Currency Borrower under the Credit Agreement, any Note, any
Loan Document, or any obligations of any other guarantor of any of the
Guaranteed Obligations;
(iv) any change in the partnership structure or
ownership of the Foreign Currency Borrower or corporate structure or
ownership of any other guarantor of any of the Guaranteed Obligations,
or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Foreign Currency Borrower, or any other
guarantor of the Guaranteed Obligations, or its assets or any
resulting release or discharge of any obligation of the Foreign
Currency Borrower, or any other guarantor of any of the Guaranteed
Obligations;
(v) the existence of any claim, setoff or other
rights which the Guarantor may have at any time against the Foreign
Currency Borrower, any other guarantor of any of the Guaranteed
Obligations, the Administrative Agent, any Bank or any other Person,
whether in connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim
(vi) any invalidity or unenforceability relating
to or against the Foreign Currency Borrower, or any other guarantor of
any of the Guaranteed Obligations, for any
141
150
reason related to the Credit Agreement, any other Loan Document, or
any other Guarantee, or the lack of legal existence of the Foreign
Currency Borrower, or any provision of applicable law or regulation
purporting to prohibit or make illegal the payment by the Foreign
Currency Borrower, or any other guarantor of the Guaranteed
Obligations, of the principal of or interest on any Note or any other
amount payable by the Foreign Currency Borrower under the Credit
Agreement, the Notes, or any other Loan Document, or the performance
of any other obligation or undertaking of the Foreign Currency
Borrower under the Credit Agreement, any other Loan Document, or any
other Guarantee or otherwise making any of the Guaranteed Obligations
irrecoverable from the Foreign Currency Borrower for any reason; or
(vii) any law, regulation, order, decree or
directive (whether or not having the force of law) or any
interpretation thereof, now or hereafter in effect in any
jurisdiction, that purports to modify any of the terms of or rights of
any Bank with respect to any Guaranteed Obligation or under the Credit
Agreement or any other Loan Document or this Guaranty, including
without limitation any law, regulation, order, decree or directive or
interpretation thereof that purports to require or permit the
satisfaction of any Guaranteed Obligation other than strictly in
accordance with the terms of the Credit Agreement or any other Loan
Document (such as by the tender of a currency other than the relevant
Foreign Currency) or that restricts the procurement of the Foreign
Currency by the Foreign Currency Borrower or the Guarantor, or any
agreement, whether or not signed by or on behalf of any Bank, in
connection with the restructuring or rescheduling of public or private
obligations in any Borrower's country, whether or not such agreement
is stated to cause or permit the discharge of the Guaranteed
Obligations prior to the final payment in full of the Guaranteed
Obligations in the relevant Foreign Currency in strict accordance with
the Credit Agreement or other Loan Documents
(viii) any other act or omission to act or delay
of any kind by the Foreign Currency Borrower, any other guarantor of
the Guaranteed Obligations, the Administrative Agent, any Bank or any
other Person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of any Guarantor's obligations hereunder.
SECTION 4. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT
IN CERTAIN CIRCUMSTANCES. The Guarantor's obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Foreign Currency Borrower under the Credit
Agreement or any other Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Foreign
Currency Borrower or otherwise, the Guarantor's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
SECTION 5. WAIVER OF NOTICE BY THE GUARANTOR. The Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be
142
151
taken by any Person against the Foreign Currency Borrower, any other guarantor
of the Guaranteed Obligations, or any other Person.
SECTION 6. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Foreign Currency Borrower under the
Credit Agreement, any Note or any other Loan Document is stayed upon the
insolvency, bankruptcy or reorganization of the Foreign Currency Borrower, all
such amounts otherwise subject to acceleration under the terms of the Credit
Agreement, any Note or any other Loan Document shall nonetheless be payable by
the Guarantor hereunder forthwith on demand by the Administrative Agent made at
the request of the Required Banks.
SECTION 7. NOTICES. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient
at its address or telecopier number set forth on the signature pages hereof or
such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the Administrative Agent in accordance with the
provisions of Section 9.01 of the Credit Agreement. Except as otherwise
provided in this Guaranty, all such communications shall be deemed to have been
duly given when transmitted by telecopier, or personally delivered or, in the
case of a mailed notice, 3 Domestic Business Days after such communication is
deposited in the mails with first class postage prepaid, in each case given or
addressed as aforesaid.
SECTION 8. NO WAIVERS. No failure or delay by the
Administrative Agent or any Banks in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in
this Guaranty, the Credit Agreement, the Notes, and the other Loan Documents
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION 9. SUCCESSORS AND ASSIGNS. This Guaranty is for the
benefit of the Administrative Agent and the Banks and their respective
successors and assigns and in the event of an assignment of any amounts payable
under the Credit Agreement, the Notes, or the other Loan Documents, the rights
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty may not be assigned by the
Guarantor without the prior written consent of the Administrative Agent and the
Required Banks, and shall be binding upon the Guarantor and its successors and
permitted assigns.
SECTION 10. CHANGES IN WRITING. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantor and the Administrative Agent, with the
consent of the Required Banks.
SECTION 11. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE
ADMINISTRATIVE AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT
143
152
FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE COURT SITTING IN
ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE GUARANTOR AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 12. TAXES, ETC. All payments required to be made by
the Guarantor hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority pursuant
and subject to the provisions of Section 2.13(c) of the Credit Agreement, the
terms of which are incorporated herein by reference as to the Guarantor as
fully as if set forth herein, and for such purposes, the rights and obligations
of the Foreign Currency Borrower under such Section shall devolve to the
Guarantor as to payments required to be made by the Guarantor hereunder.
SECTION 13. FAILURE TO PAY IN FOREIGN CURRENCY. If the
Guarantor is unable for any reason to effect payment in a relevant Foreign
Currency as required by this Guaranty or if the Guarantor shall default in the
Foreign Currency, each Bank may, through the Administrative Agent, require such
payment to be made in Dollars in the Dollar Equivalent amount of such payment.
In any case in which the Guarantor shall make such payment in Dollars, the
Guarantor agrees to hold the Banks harmless from any loss incurred by the Banks
arising from any change in the value of Dollars in relation to such Foreign
Currency between the date such payment became due and the date of payment
thereof.
SECTION 14. JUDGMENT CURRENCY. If for the purpose of
obtaining judgment in any court or enforcing any such judgment it is necessary
to convert any amount due in any Foreign Currency into any other currency, the
rate of exchange used shall be the Administrative Agent's spot rate of exchange
for the purchase of the Foreign Currency with such other currency at the close
of business on the Foreign Currency Business Day preceding the date on which
judgment is given or any order for payment is made. The obligation of the
Guarantor in respect of any amount due from it hereunder shall, notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Administrative Agent of any payment in a currency
other than the relevant Foreign Currency the Agent is able (in accordance with
normal banking procedures) to purchase the relevant Foreign Currency with such
other currency. If the amount of the relevant Foreign Currency that the
Administrative Agent is able to purchase with such
144
153
other currency is less than the amount due in the relevant Foreign Currency,
notwithstanding any judgment or order, the Guarantor shall indemnify the Banks
for the shortfall.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to
be duly executed, under seal, by its authorized officer as of the date first
above written.
XXXXXXX CORPORATION
By:
--------------------------------------------
Xxxx X. Xxxxx
Executive Vice President and Chief Financial
Officer
145
154
SCHEDULE 4.08
SUBSIDIARIES OF XXXXXXX CORPORATION
JURISDICTION OF
INCORPORATION
NAME OF SUBSIDIARY OR FORMATION
------------------ ------------
Cross Creek Holdings, Inc. Delaware
Cross Creek Apparel, Inc. North Carolina
Eagle R Holdings Limited United Kingdom
Xxxxxxx Europe Limited United Kingdom
Citygate Textiles Limited United Kingdom
Xxxxxxx Athletic, Inc. Xxxxxxx
Xxxxxxx Athletic West, Inc. Nevada
Alexander City Flying Service, Inc. Alabama
Xxxxxxx Servicing Co., Inc. Alabama
Xxxxxxx Development Corporation Xxxxxxx
Xxxxxxx Apparel LLC Alabama
DeSoto Xxxxx, Inc. Alabama
Xxxxxxx Germany GmbH Germany
Xxxxxxx France SARL France
Xxxxxxx Spain, S.L. Spain
Xxxxxxx Italy Srl Italy
Xxxxxxx Corp. Canada Ltd. Canada
Xxxxxxx CZ s.r.o. Czech Republic
Xxxxxxx Corp. Far East, Ltd. Hong Kong
Xxxxxxx Mexico S.A. de C.V. Mexico
Xxxxxxx Corp. Australia Pty. Ltd. Australia
Xxxxxxx Foreign Sales, Ltd. Barbados
Xxxxxxx Corp. Bangladesh Limited Bangladesh
Jerzees de Honduras S.A. de C.V. Honduras
Xxxxxxx do Brasil Ltda. Brazil
Jerzees Yucatan S.A. de C.V. Mexico
Xxxxxxx Financial Services, Inc. Tennessee
Xxxxxxx Asset Management Inc. Delaware
RINTEL Properties, Inc. Delaware
Servicios Xxxxxxx X.X. de C.V. Mexico
Jerzees Campeche S.A. de C.V. Mexico
RU Servicios S.A. de C.V. Honduras
Cross Creek de Honduras S.A. de C.V. Honduras
Xxxxxxx Japan KK Japan
146
