EXHIBIT 10.1
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
dated as of August 26, 2005
among
XXXXXXX FURNITURE COMPANIES, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A. and
REGIONS BANK, as Co-Documentation Agents,
WACHOVIA BANK, NATIONAL ASSOCIATION
as Syndication Agent
and
SUNTRUST BANK
as Administrative Agent
=================================================================
SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION..................... 1
SECTION 1.1. DEFINITIONS................................... 1
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS....... 19
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION............ 19
SECTION 1.4. TERMS GENERALLY............................... 19
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS........... 20
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES............. 20
SECTION 2.2. REVOLVING LOANS............................... 20
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS............ 20
SECTION 2.4. SWINGLINE COMMITMENT.......................... 21
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC........ 21
SECTION 2.6. FUNDING OF BORROWINGS......................... 22
SECTION 2.7. INTEREST ELECTIONS............................ 23
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF
COMMITMENTS................................. 24
SECTION 2.9. REPAYMENT OF LOANS............................ 25
SECTION 2.10. EVIDENCE OF INDEBTEDNESS...................... 25
SECTION 2.11. OPTIONAL PREPAYMENTS.......................... 25
SECTION 2.12. MANDATORY PREPAYMENTS......................... 26
SECTION 2.13. INTEREST ON LOANS............................. 26
SECTION 2.14. FEES.......................................... 27
SECTION 2.15. COMPUTATION OF INTEREST AND FEES.............. 28
SECTION 2.16. INABILITY TO DETERMINE INTEREST RATES......... 28
SECTION 2.17. ILLEGALITY.................................... 28
SECTION 2.18. INCREASED COSTS............................... 29
SECTION 2.19. FUNDING INDEMNITY............................. 30
SECTION 2.20. TAXES......................................... 30
SECTION 2.21. PAYMENTS GENERALLY; PRO RATA TREATMENT........ 32
SECTION 2.22. MITIGATION OF OBLIGATIONS..................... 33
SECTION 2.23. LETTERS OF CREDIT............................. 33
SECTION 2.24. INCREASE OF COMMITMENTS; ADDITIONAL LENDERS... 39
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND
LETTERS OF CREDIT........................... 41
SECTION 3.1. CONDITIONS TO EFFECTIVENESS.................... 41
SECTION 3.2. EACH CREDIT EVENT.............................. 43
SECTION 3.3. DELIVERY OF DOCUMENTS.......................... 43
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................. 43
SECTION 4.1. EXISTENCE; POWER............................... 43
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION............ 43
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS........... 44
SECTION 4.4. FINANCIAL STATEMENTS........................... 44
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS........... 44
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS............ 45
SECTION 4.7. INVESTMENT COMPANY ACT, ETC.................... 45
SECTION 4.8. TAXES.......................................... 45
SECTION 4.9. MARGIN REGULATIONS............................. 45
SECTION 4.10.ERISA.......................................... 45
SECTION 4.11.OWNERSHIP OF PROPERTY.......................... 46
SECTION 4.12.DISCLOSURE..................................... 46
SECTION 4.13.LABOR RELATIONS................................ 46
SECTION 4.14.SUBSIDIARIES................................... 46
SECTION 4.15.INSOLVENCY..................................... 46
SECTION 4.16.OFAC........................................... 47
ARTICLE V AFFIRMATIVE COVENANTS.......................... 47
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION..... 47
SECTION 5.2. NOTICES OF MATERIAL EVENTS..................... 49
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS................. 49
SECTION 5.4. COMPLIANCE WITH LAWS, ETC...................... 50
SECTION 5.5. PAYMENT OF OBLIGATIONS......................... 50
SECTION 5.6. BOOKS AND RECORDS.............................. 50
SECTION 5.7. VISITATION, INSPECTION, ETC.................... 50
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE........... 50
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT.......... 50
ARTICLE VI FINANCIAL COVENANTS............................ 51
SECTION 6.1. FIXED CHARGE COVERAGE RATIO.................... 51
SECTION 6.2. TOTAL ADJUSTED DEBT TO TOTAL CAPITAL........... 51
ARTICLE VII NEGATIVE COVENANTS............................. 51
SECTION 7.1. INDEBTEDNESS................................... 51
SECTION 7.2. NEGATIVE PLEDGE................................ 53
SECTION 7.3. FUNDAMENTAL CHANGES............................ 54
SECTION 7.4. INVESTMENTS, LOANS, ETC........................ 54
SECTION 7.5. RESTRICTED PAYMENTS............................ 55
SECTION 7.6. SALE OF ASSETS................................. 56
SECTION 7.7. TRANSACTIONS WITH AFFILIATES................... 57
SECTION 7.8. RESTRICTIVE AGREEMENTS......................... 57
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS................ 57
SECTION 7.10.HEDGING TRANSACTIONS........................... 57
SECTION 7.11.AMENDMENT TO CHARTER DOCUMENTS................. 58
SECTION 7.12. ACCOUNTING CHANGES............................ 58
ARTICLE VIII EVENTS OF DEFAULT............................. 58
SECTION 8.1. EVENTS OF DEFAULT............................. 58
ARTICLE IX THE ADMINISTRATIVE AGENT........................ 60
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT............ 60
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT....... 61
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT... 62
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT..... 62
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT.............. 62
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY.................................... 62
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT................ 63
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. 63
SECTION 9.9. DOCUMENTATION AGENT AND SYNDICATION AGENT..... 63
ARTICLE X MISCELLANEOUS................................. 64
SECTION 10.1. NOTICES....................................... 64
SECTION 10.2. WAIVER; AMENDMENTS............................ 65
SECTION 10.3. EXPENSES; INDEMNIFICATION..................... 66
SECTION 10.4. SUCCESSORS AND ASSIGNS........................ 68
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS.......................... 71
SECTION 10.6. WAIVER OF JURY TRIAL.......................... 72
SECTION 10.7. COUNTERPARTS; INTEGRATION..................... 72
SECTION 10.8. SURVIVAL...................................... 72
SECTION 10.9. SEVERABILITY.................................. 73
SECTION 10.10. CONFIDENTIALITY.............................. 73
SECTION 10.11. INTEREST RATE LIMITATION..................... 73
SECTION 10.12. WAIVER OF EFFECT OF CORPORATE SEAL........... 73
SECTION 10.13. WAIVER RIGHT OF SETOFF....................... 74
SECTION 10.14. PATRIOT ACT.................................. 74
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II - Commitment Amounts
Schedule 2.23 - Existing Letters of Credit
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Existing Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.6 - Permitted Asset Sales
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.5 - Form of Notice of Swingline Borrowing
Exhibit 2.7 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is
made and entered into as of August 26, 2005, by and among XXXXXXX
FURNITURE COMPANIES, INC., a Maryland corporation (the
"Borrower"), the several banks and other financial institutions
from time to time party hereto (the "Lenders"), and SUNTRUST
BANK, in its capacity as administrative agent for the Lenders
(the "Administrative Agent"), as issuing bank (the "Issuing
Bank") and as swingline lender (the "Swingline Lender").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders
establish a $60,000,000 revolving credit facility in favor of the
Borrower;
WHEREAS, subject to the terms and conditions of this
Agreement, the Lenders severally, to the extent of their
respective Commitments as defined herein, are willing to
establish the requested revolving credit facility in favor of
the Borrower.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants herein contained, the Borrower, the Lenders,
the Administrative Agent, the Issuing Bank and the Swingline
Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the
meanings herein specified (to be equally applicable to both the
singular and plural forms of the terms defined):
"Additional Commitment Amount" shall mean, at any time,
(i) $70,000,000, less (ii) the aggregate principal amount, if
any, by which the Credit Services Revolving Commitments have been
increased after the Closing Date pursuant to Section 2.24 of the
Credit Services Credit Agreement.
"Additional Lender" shall have the meaning given to
such term in Section 2.24.
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Borrowing, the rate per annum ob
tained by dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.
"Administrative Agent" shall have the meaning assigned
to such term in the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect
to each Lender, an administrative questionnaire in the form
prepared by the Administrative Agent and submitted to the
Administrative Agent duly completed by such Lender.
"Affiliate" shall mean, as to any Person, any other
Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common
Control with, such Person. For purposes of this definition,
"Control" shall mean the power, directly or indirectly, either to
(i) vote 5% or more of the securities having ordinary voting
power for the election of directors (or persons performing
similar functions) of a Person or (ii) direct or cause the
direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling", "Controlled by", and "under
common Control with" have meanings correlative thereto.
"Aggregate Revolving Commitment Amount" shall mean the
aggregate principal amount of the Aggregate Revolving Commitments
from time to time. On the Closing Date, the Aggregate Revolving
Commitment Amount equals $60,000,000.
"Aggregate Revolving Commitments" shall mean,
collectively, all Revolving Commitments of all Lenders at any
time outstanding.
"Applicable Lending Office" shall mean, for each Lender
and for each Type of Loan, the "Lending Office" of such Lender
(or an Affiliate of such Lender) designated for such Type of Loan
in the Administrative Questionnaire submitted by such Lender or
such other office of such Lender (or an Affiliate of such Lender)
as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its
Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean, with respect to all
Revolving Loans outstanding on any date, a percentage per annum
determined by reference to the applicable Fixed Charge Coverage
Ratio in effect on such date as set forth on Schedule I attached
hereto; provided, that a change in the Applicable Margin
resulting from a change in the Fixed Charge Coverage Ratio shall
be effective on the second Business Day after which the Borrower
delivers the financial statements required by Section 5.1(a) or
(b) and the compliance certificate required by Section 5.1(c);
provided further, that if at any time the Borrower shall have
failed to deliver such financial statements and such certificate,
the Applicable Margin shall be at Level I as set forth on
Schedule I until such time as such financial statements and
certificate are delivered, at which time the Applicable Margin
shall be determined as provided above. Notwithstanding the
foregoing, the Applicable Margin from the Closing Date until the
financial statements and compliance certificate for the
Borrower's Fiscal Quarter ending September 30, 2005 are required
to be delivered shall be at Level II as set forth on Schedule I.
"Applicable Percentage" shall mean, with respect to the
commitment fee as of any date, the percentage per annum
determined by reference to the applicable Fixed Charge Coverage
Ratio in effect on such date as set forth on Schedule I attached
hereto; provided, that a change in the Applicable Percentage
resulting from a change in the Fixed Charge Coverage Ratio shall
be effective on the second Business Day after which the Borrower
delivers the financial statements required by Section 5.1(a) or
(b) and the compliance certificate required by Section 5.1(c);
provided, further, that if at any time the Borrower shall have
failed to deliver such financial statements and such certificate,
the Applicable Percentage shall be at Level I as set forth on
Schedule I until such time as such financial statements and
certificate are delivered, at which time the Applicable
Percentage shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Percentage for the
commitment fee from the Closing Date until the financial
statements and compliance certificate for the Borrower's Fiscal
Quarter ending September 30, 2005 as required to be delivered
shall be at Level II as set forth on Schedule I.
"Approved Fund" shall mean any Person (other than a
natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans
and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Asset Like Kind Exchange" shall mean a like-kind
exchange of real estate assets of the Borrower or any of its
Subsidiaries made in accordance with Section 1031 and Section
1033 of the Code.
"Assignment and Acceptance" shall mean an assignment
and acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section
10.4(b)) and accepted by the Administrative Agent, in the form of
Exhibit C attached hereto or any other form approved by the
Administrative Agent.
"Availability Period" shall mean the period from the
Closing Date to the Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum
rate which the Administrative Agent publicly announces from time
to time to be its prime lending rate, as in effect from time to
time, and (ii) the Federal Funds Rate, as in effect from time to
time, plus one-half of one percent (0.50%). The Administrative
Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to
customers. The Administrative Agent may make commercial loans or
other loans at rates of interest at, above or below the
Administrative Agent's prime lending rate. Each change in the
Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being
effective.
"Borrower" shall have the meaning assigned to such
term in the introductory paragraph hereof.
"Borrowing" shall mean a borrowing consisting of (i)
Loans of the same Class and Type, made, converted or continued on
the same date and in case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a
Saturday, Sunday or other day on which commercial banks in
Atlanta, Georgia are authorized or required by law to close and
(ii) if such day relates to a Borrowing of, a payment or
prepayment of principal or interest on, a conversion of or into,
or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which dealings in
Dollars are carried on in the London interbank market.
"Capital Lease Obligations" of any Person shall mean
all obligations of such Person to pay rent or other amounts under
any lease (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases
on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" shall mean the occurrence of one or
more of the following events: (a) any sale, lease, exchange or
other transfer (in a single transaction or a series of related
transactions) of all or substantially all of the assets of the
Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder in effect on the date hereof),
(b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or "group" (within the
meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder as in effect on
the date hereof) acting in concert (other than by Class A
Shareholders) acquiring beneficial ownership, of 30% or more of
the outstanding shares of the Class A Common Stock of the
Borrower; or (c) occupation of a majority of the seats (other
than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the current board of
directors or (ii) appointed by directors so nominated.
"Change in Law" shall mean (i) the adoption of any
applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or
regulation, or any change in the interpretation or application
thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable
Lending Office) or the Issuing Bank (or for purposes of Section
2.18(b), by such Lender's or the Issuing Bank's holding company,
if applicable) with any request, guideline or directive (whether
or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class" when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are Revolving Loans or Swingline Loans and when
used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment or a Swingline Commitment.
"Class A Common Stock" shall mean all issued and
outstanding Class A common stock of the Borrower.
"Class A Shareholders" shall mean the Persons that own
the Class A Common Stock on the Closing Date, together with their
spouses and direct descendants who acquire shares of Class A
Common Stock by sale, transfer or gift.
"Closing Date" shall mean the date on which the
conditions precedent set forth in Section 3.1 and Section 3.2
have been satisfied or waived in accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Commitment" shall mean a Revolving Commitment or a
Swingline Commitment or any combination thereof (as the context
shall permit or require).
"Consolidated EBITDA" shall mean, for the Borrower and
its Subsidiaries for any period, an amount equal to the sum of
(a) Consolidated Net Income for such period plus (b) to the
extent deducted in determining Consolidated Net Income for such
period, (i) Consolidated Interest Expense, (ii) income tax
expense, (iii) depreciation and amortization, and (iv) all other
non-cash charges, less (c) any cash payments made during such
period that relate to non-cash charges included in determining
Consolidated EBITDA for such period or any prior period, in each
case determined on a consolidated basis in accordance with GAAP
for such period.
"Consolidated EBITDAR" shall mean, for the Borrower and
its Subsidiaries for any period, an amount equal to the sum of
(a) Consolidated EBITDA for such period and (b) Consolidated
Lease Expense for such period.
"Consolidated Fixed Charges" shall mean, for the
Borrower and its Subsidiaries for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such
period, (b) scheduled principal payments made on Consolidated
Total Debt during such period, and (c) Consolidated Lease Expense
for such period.
"Consolidated Interest Expense" shall mean, for the
Borrower and its Subsidiaries for any period determined on a
consolidated basis in accordance with GAAP, the sum of (i) total
interest expense, including without limitation the interest
component of any payments in respect of Capital Leases
Obligations capitalized or expensed during such period (whether
or not actually paid during such period) plus (ii) the net amount
payable (or minus the net amount receivable) under Hedging
Transactions during such period (whether or not actually paid or
received during such period).
"Consolidated Lease Expense" shall mean, for the
Borrower and its Subsidiaries for any period, (i) the aggregate
amount of fixed and contingent rentals payable by the Borrower
and its Subsidiaries with respect to leases of real and personal
property, less (ii) the aggregate amount of all rental income
payable to the Borrower and its Subsidiaries with respect to
leases or subleases of real and personal property, excluding in
each case Capital Lease Obligations, determined on a consolidated
basis in accordance with GAAP for such period. For purposes of
clarification, Variable Interest Entity Obligations are excluded
from Consolidated Lease Expense.
"Consolidated Net Income" shall mean, for the Borrower
and its Subsidiaries for any period, the net income (or loss) of
the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding
therefrom (to the extent otherwise included therein) (i) any
extraordinary gains or losses and the cumulative effect of
changes in accounting principles, (ii) any gains attributable to
write-ups of assets, (iii) any equity interest of the Borrower or
any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of
any Person accrued prior to the date it becomes a Subsidiary or
is merged into or consolidated with the Borrower or any
Subsidiary on the date that such Person's assets are acquired by
the Borrower or any Subsidiary.
"Consolidated Net Worth" shall mean, as of any date,
(i) the total assets of the Borrower and its Subsidiaries that
would be reflected on the Borrower's consolidated balance sheet
as of such date prepared in accordance with GAAP, after
eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries,
minus (ii) the total liabilities of the Borrower and its
Subsidiaries that would be reflected on the Borrower's
consolidated balance sheet as of such date prepared in accordance
with GAAP.
"Consolidated Total Adjusted Debt" shall mean, as of
any date, (i) Consolidated Total Debt (other than all Synthetic
Lease Obligations to the extent such Synthetic Lease Obligations
are included in clause (ii) below as Operating Lease
Obligations), plus (ii) to the extent not included in clause (i),
all Operating Lease Obligations of Borrower and its Subsidiaries
measured at the present value of such obligations (using a 10%
discount rate).
"Consolidated Total Capital" shall mean, as of any
date, the sum of (i) Consolidated Total Adjusted Debt as of such
date and (ii) Consolidated Net Worth as of such date.
"Consolidated Total Debt" shall mean, as of any date
and without duplication, all Indebtedness of the Borrower and its
Subsidiaries consolidated in accordance with GAAP (excluding
Indebtedness of the type described in subsection (xi) of the
definition of Indebtedness), including, but not limited to, all
Obligations. For purposes of determining Consolidated Total
Debt, the principal amount of any Synthetic Lease Obligation
shall be deemed to be the amount that would be reflected on the
balance sheet of the Borrower and its Subsidiaries if such
Synthetic Lease Obligation were characterized as a capital lease
rather than an operating lease.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any
agreement, instrument or undertaking under which such Person is
obligated or by which it or any of the property in which it has
an interest is bound.
"Credit Services" shall mean Havertys Credit Services,
Inc., a Tennessee corporation.
"Credit Services Credit Agreement" shall mean that
certain Revolving Credit Agreement, dated as of the date hereof,
by and among Credit Services, the lenders from time to time party
thereto and SunTrust Bank, as administrative agent, as amended,
restated, supplemented or otherwise modified from time to time.
"Credit Services Revolving Commitments" shall mean all
"Revolving Commitments", as defined in the Credit Services Credit
Agreement.
"Default" shall mean any condition or event that, with
the giving of notice or the lapse of time or both, would
constitute an Event of Default.
"Default Interest" shall have the meaning set forth in
Section 2.13(c).
"Deferred Compensation Plan" shall mean the Top Hat
Mutual Fund Option Plan approved by the Board of Directors of the
Borrower on January 15, 1999.
"Dollar(s)" and the sign "$" shall mean lawful money of
the United States of America.
"Environmental Laws" shall mean all laws, rules,
regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in
any way to the environment, preservation or reclamation of
natural resources, the management, Release or threatened Release
of any Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability,
contingent or otherwise (including any liability for damages,
costs of environmental investigation and remediation, costs of
administrative oversight, fines, natural resource damages,
penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any
actual or alleged violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) any actual or alleged
exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" shall mean the Employee Retirement Income Secu
rity Act of 1974, as amended from time to time, and any successor
statute.
"ERISA Affiliate" shall mean any trade or business
(whether or not incorporated), which, together with the Borrower,
is treated as a single employer under Section 414(b) or (c) of
the Code or, solely for the purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event",
as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which
the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan;
(d) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan administrator appointed
by the PBGC of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any of its ERISA Affiliates
of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within
the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or
Borrowing refers to whether such Loan, or the Loans comprising
such Borrowing, bears interest at a rate determined by reference
to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the
aggregate of the maximum reserve percentages (including, without
limitation, any emergency, supplemental, special or other
marginal reserves) expressed as a decimal (rounded upwards to the
next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO
Rate pursuant to regulations issued by the Board of Governors of
the Federal Reserve System (or any Governmental Authority
succeeding to any of its principal functions) with respect to
eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to
such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time
to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Event of Default" shall have the meaning provided in
Article VIII.
"Excluded Taxes" shall mean with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other
recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United
States of America, and by the jurisdiction under the laws of
which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits
taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which any Lender is located
and (c) in the case of a Foreign Lender, any withholding tax that
(i) is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement, (ii)
is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other
than taxes that have accrued prior to the designation of such
lending office that are otherwise not Excluded Taxes, and (iii)
is attributable to such Foreign Lender's failure to comply with
Section 2.20(e).
"Existing Credit Agreement" shall mean that certain
Credit Agreement, dated as of March 27, 2002, by and among the
Borrower, the lenders from time to time party thereto, SunTrust
Bank, as Administrative Agent, Wachovia Securities, Inc., as
Syndication Agent, and Bank of America, N.A., as Documentation
Agent.
"Existing Letters of Credit" means the letters of
credit issued by SunTrust Bank prior to the Closing Date and
listed on Schedule 2.23.
"Extended LC Expiration Date" shall mean, with respect
to any Letter of Credit, the expiration date requested by the
Borrower with respect to such Letter of Credit issued pursuant to
Section 2.23 that is later than the Revolving Commitment
Termination Date (whether upon initial issuance or any renewal or
extension) but no later than one year after the Revolving
Commitment Termination Date.
"Federal Funds Rate" shall mean, for any day, the rate
per annum (rounded upwards, if necessary, to the next 1/100th of
1%) equal to the weighted average of the rates on overnight
Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business
Day, the Federal Funds Rate for such day shall be the average
rounded upwards, if necessary, to the next 1/100th of 1% of the
quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated
as of July 11, 2005, executed by SunTrust Capital Markets, Inc.
and SunTrust Bank and accepted by Borrower.
"Fiscal Quarter" shall mean a fiscal quarter of the
Borrower.
"Fiscal Year" shall mean a fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" shall mean, as of any
date, the ratio of (a) Consolidated EBITDAR to (b) Consolidated
Fixed Charges, in each case for the four Fiscal Quarter period of
Borrower ending on or immediately prior to such date.
"Foreign Lender" shall mean any Lender that is not a
United States person under Section 7701(a)(3) of the Code.
"GAAP" shall mean generally accepted accounting prin
ciples in the United States applied on a consistent basis and
subject to the terms of Section 1.3.
"Governmental Authority" shall mean the government of
the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall
mean any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly
and including any obligation, direct or indirect, of the
guarantor (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued
in support of such Indebtedness or obligation; provided, that the
term "Guarantee" shall not include endorsements for collection or
deposits in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as
determined by such Person in good faith. The term "Guarantee"
used as a verb has a corresponding meaning.
"Havertys Capital" shall mean Havertys Capital, Inc., a
Nevada corporation.
"Havertys Enterprises" shall mean Havertys Enterprises,
Inc., a Nevada corporation.
"Hazardous Materials" shall mean all explosive or
radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Obligations" of any Person shall mean any and
all obligations of such Person, whether absolute or contingent
and howsoever and whensoever created, arising, evidenced or
acquired under (i) any and all Hedging Transactions, (ii) any and
all cancellations, buy backs, reversals, terminations or
assignments of any Hedging Transactions and (iii) any and all
renewals, extensions and modifications of any Hedging
Transactions and any and all substitutions for any Hedging
Transactions.
"Hedging Transaction" of any Person shall mean any
transaction (including an agreement with respect thereto) now
existing or hereafter entered into between such Person and any
Lender or Affiliate of any Lender that is a rate swap, basis
swap, forward rate transaction, commodity swap, interest rate
option, foreign exchange transaction, cap transaction, floor
transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any
option with respect to any of these transactions) or any
combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices, equity prices or
other financial measures.
"Indebtedness" of any Person shall mean, without dupli
cation (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of the deferred purchase
price of property or services (other than trade payables incurred
in the ordinary course of business on terms customary in the
trade; provided, that for purposes of Section 8.1(f), trade
payables overdue by more than 120 days shall be included in this
definition except to the extent that any of such trade payables
are being disputed in good faith and by appropriate measures),
(iv) all obligations of such Person under any conditional sale or
other title retention agreement(s) relating to property acquired
by such Person, (v) all Capital Lease Obligations of such Person,
(vi) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, acceptances or similar extensions
of credit, (vii) all Guarantees of such Person of the type of
Indebtedness described in clauses (i) through (v) above, (viii)
all Indebtedness of a third party secured by any Lien on property
owned by such Person, whether or not such Indebtedness has been
assumed by such Person, (ix) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any common stock of such Person, (x) Off-
Balance Sheet Liabilities, (xi) all Hedging Obligations and (xii)
any obligations of Variable Interest Entities of the type
described in clauses (i) through (xi) above. The Indebtedness of
any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than
Excluded Taxes.
"Information Memorandum" shall mean the Confidential
Information Memorandum dated July 2005 relating to the Borrower
and the transactions contemplated by this Agreement and the other
Loan Documents.
"Interest Period" shall mean with respect to any
Eurodollar Borrowing, a period of one, two, three or six months;
provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type), and each Interest
Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise end on a day other
than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless such Business Day falls
in another calendar month, in which case such Interest Period
would end on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business
Day of a calendar month or on a day for which there is no nu
merically corresponding day in the calendar month at the end of
such Interest Period shall end on the last Business Day of such
calendar month; and
(iv) no Interest Period may extend beyond the Revolving
Commitment Termination Date.
"Issuing Bank" shall mean SunTrust Bank or any other
Lender, each in its capacity as an issuer of Letters of Credit
pursuant to Section 2.23.
"LC Commitment" shall mean that portion of the
Aggregate Revolving Commitment Amount that may be used by the
Borrower for the issuance of Letters of Credit in an aggregate
face amount not to exceed $20,000,000.
"LC Disbursement" shall mean a payment made by the
Issuing Bank pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters
of Credit.
"LC Exposure" shall mean, at any time, the sum of
(i) the aggregate undrawn amount of all outstanding Letters of
Credit at such time, plus (ii) the aggregate amount of all LC
Disbursements that have not been reimbursed by or on behalf of
the Borrower at such time. The LC Exposure of any Lender shall
be its Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term
in the opening paragraph of this Agreement and shall include,
where appropriate, the Swingline Lender and each Additional
Lender that joins this Agreement pursuant to Section 2.24.
"Letter of Credit" shall mean any stand-by letter of
credit issued pursuant to Section 2.23 by the Issuing Bank for
the account of the Borrower pursuant to the LC Commitment and the
Existing Letters of Credit.
"LIBOR" shall mean, for any applicable Interest Period
with respect to any Eurodollar Loan, the British Bankers'
Association Interest Settlement Rate per annum for deposits in
Dollars for a period equal to such Interest Period appearing on
the display designated as Page 3750 on the Dow Xxxxx Markets
Service (or such other page on that service or such other service
designated by the British Bankers' Association for the display of
such Association's Interest Settlement Rates for Dollar deposits)
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 or if
such Page 3750 is unavailable for any reason at such time, the
rate which appears on the Reuters Screen ISDA Page as of such
date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable
for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average
(rounded upward, if necessary, to the nearest 1/100th of 1%) of
the rates per annum at which deposits in Dollars are offered to
the Administrative Agent two (2) Business Days preceding the
first day of such Interest Period by leading banks in the London
interbank market as of 10:00 a.m. (Atlanta, Georgia time) for
delivery on the first day of such Interest Period, for the number
of days comprised therein and in an amount comparable to the
amount of the Eurodollar Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security inter
est, lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement, or other
arrangement having the practical effect of the foregoing or any
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any
capital lease having the same economic effect as any of the
foregoing).
"Loan Documents" shall mean, collectively, this Agree
ment, the Notes (if any), the LC Documents, all Notices of
Borrowing, all Notices of Conversion/Continuation and any and all
other instruments, agreements, documents and writings executed in
connection with any of the foregoing.
"Loans" shall mean all Revolving Loans and Swingline
Loans in the aggregate or any of them, as the context shall
require.
"Material Adverse Effect" shall mean, with respect to
any event, act, condition or occurrence of whatever nature
(including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or
occurrences whether or not related, a material adverse change in,
or a material adverse effect on, (i) the business, results of
operations, financial condition, assets, liabilities or prospects
of the Borrower or of the Borrower and its Subsidiaries taken as
a whole, (ii) the ability of the Borrower to perform any of their
respective obligations under the Loan Documents, (iii) the rights
and remedies of the Administrative Agent, the Issuing Bank,
Swingline Lender, and the Lenders under any of the Loan Documents
or (iv) the legality, validity or enforceability of any of the
Loan Documents.
"Material Indebtedness" shall mean Indebtedness (other
than the Loans and Letters of Credit) or Hedging Obligations, of
any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes
of determining Material Indebtedness, the "principal amount" of
any Hedging Obligations at any time shall be the Net Xxxx-to-
Market Exposure of such Hedging Obligations at such time.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth
in Section 4001(a)(3) of ERISA.
"Net Xxxx-to-Market Exposure" of any Person shall mean,
as of any date, with respect to any Hedging Obligation, the
excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from such Hedging Obligation.
"Unrealized losses" shall mean the fair market value of the cost
to such Person of replacing the Hedging Transaction giving rise
to such Hedging Obligation as of such date (assuming the Hedging
Transaction was to be terminated as of that date), and
"unrealized profits" means the fair market value of the gain to
such Person of replacing such Hedging Transaction as of such date
(assuming such Hedging Transaction were to be terminated as of
that date).
"Notes" shall mean, collectively, the Revolving Credit
Notes and the Swingline Note.
"Notice of Conversion/Continuation" shall mean the
notice given by the Borrower to the Administrative Agent in
respect of the conversion or continuation of an outstanding
Borrowing as provided in Section 2.7(b).
"Notice of Revolving Borrowing" shall have the meaning
as set forth in Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning
as set forth in Section 2.5.
"Notices of Borrowing" shall mean, collectively, the
Notices of Revolving Borrowing and the Notices of Swingline
Borrowing.
"Obligations" shall mean all amounts owing by the
Borrower to the Administrative Agent, the Issuing Bank or any
Lender (including the Swingline Lender) pursuant to or in
connection with this Agreement or any other Loan Document,
including without limitation, all principal, interest (including
any interest accruing after the filing of any petition in
bankruptcy or the commencement of any insolvency, reorganization
or like proceeding relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in
such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to the Administrative
Agent, the Issuing Bank and any Lender (including the Swingline
Lender) incurred pursuant to this Agreement or any other Loan
Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, and all Hedging Obligations owing to the
Administrative Agent, any Lender or any of their Affiliates
incurred in order to limit interest rate or fee fluctuation with
respect to the Loans and Letters of Credit, and all obligations
and liabilities incurred in connection with collecting and
enforcing the foregoing, together with all renewals, extensions,
modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall
mean (i) any repurchase obligation or liability of such Person
with respect to accounts or notes receivable sold by such Person,
including, without limitation, any Receivables Financings, (ii)
any liability of such Person under any sale and leaseback
transactions which do not create a liability on the balance sheet
of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is
the functional equivalent of or takes the place of borrowing but
which does not constitute a liability on the balance sheet of
such Person.
"Operating Lease Obligations" of any Person shall mean
all obligations of such Person to pay rent or other amounts under
any lease (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as operating
leases on a balance sheet of such Person under GAAP, excluding,
without duplication, Variable Interest Entity Obligations.
"OSHA" shall mean the Occupational Safety and Health
Act of 1970, as amended from time to time, and any successor
statute.
"Other Taxes" shall mean any and all present or future
stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document other
than Excluded Taxes.
"Participant" shall have the meaning set forth in
Section 10.4(d).
"Payment Office" shall mean the office of the
Administrative Agent located at 000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, or such other location as to which the
Administrative Agent shall have given written notice to the
Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corpora
tion referred to and defined in ERISA, and any successor entity
performing similar functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes or special assessments not
yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by
law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good faith
by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary
conduct of business of the Borrower and its Subsidiaries taken as
a whole;
provided, that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States (or by any agency thereof to the extent such obligations
are backed by the full faith and credit of the United States), in
each case maturing within one year from the date of acquisition
thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case
maturing within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition
thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States or
any state thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (i)
above and entered into with a financial institution satisfying
the criteria described in clause (iii) above;
(v) auction rate preferred stock or bonds rated either A+ or
better by S&P or A1 or better by Xxxxx'x; and
(vi) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv)
above.
"Permitted Receivables Sale" shall mean a sale of
accounts receivables with recourse, or discount or otherwise for
less then the face value thereof pursuant to a Receivables
Financing.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability
company, trust or other entity, or any Governmental Authority.
"Plan" shall mean any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined
in Section 3(5) of ERISA.
"Pro Rata Share" shall mean, with respect to any
Commitment of any Lender at any time, a percentage, the numerator
of which shall be such Lender's Commitment (or if such
Commitments have been terminated or expired or the Loans have
been declared to be due and payable, such Lender's Revolving
Credit Exposure), and the denominator of which shall be the sum
of such Commitments of all Lenders (or if such Commitments have
been terminated or expired or the Loans have been declared to be
due and payable, all Revolving Credit Exposure of all Lenders
under such Commitments).
"Prudential Agreement" shall mean that certain Note
Agreement dated December 29, 1993 by and between the Borrower and
The Prudential Insurance Company of America relating to the
Borrower's $92,500,000 in aggregate principal amount 10.10% notes
due April 15, 2000, 7.16% notes due April 15, 2007, 7.44% notes
due October 13, 2008 and 7.95% notes due August 15, 2008, either
as originally executed or as thereafter amended, modified or
supplemented.
"Receivables Financing" shall mean a transaction
pursuant to which funds are advanced to the Borrower or any of
its Subsidiaries in exchange for which the Borrower or such
Subsidiaries shall sell, pledge, contribute or place a Lien on
any or all of its accounts or notes receivables to repay, in
whole or in part, such funds. However, this definition shall not
include any debit card, credit card or revolving charge sales
where the obligor is a financial institution.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in
effect from time to time, and any successor regulations.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System, as the same may be in
effect from time to time, and any successor regulations.
"Related Parties" shall mean, with respect to any
specified Person, such Person's Affiliates and the respective
directors, officers, employees, agents and advisors of such
Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission,
leaking, dumping, injection, pouring, deposit, disposal,
discharge, dispersal, leaching or migration into the environment
(including ambient air, surface water, groundwater, land surface
or subsurface strata) or within any building, structure, facility
or fixture.
"Required Lenders" shall mean, at any time, Lenders
holding 51% or more of the aggregate outstanding Revolving
Commitments at such time or if the Lenders have no Commitments
outstanding, then Lenders holding 51% or more of the Revolving
Credit Exposure.
"Requirement of Law" for any Person shall mean the
articles or certificate of incorporation and bylaws or other
organizational or governing documents of such Person, and any
law, treaty, rule or regulations, or determination of a
Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person
or any of its property is subject.
"Responsible Officer" shall mean any of the chairman,
president, the chief executive officer, the chief operating
officer, the chief financial officer, the treasurer or a vice
president of the Borrower or such other representative of the
Borrower as may be designated in writing by any one of the
foregoing with the consent of the Administrative Agent; and, with
respect to the financial covenants only, the chief financial
officer or the treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth
in Section 7.5.
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to
the Borrower and to participate in Letters of Credit and
Swingline Loans in an aggregate principal amount not exceeding
the amount set forth with respect to such Lender on Schedule II,
as such schedule may be amended pursuant to Section 2.24, or in
the case of a Person becoming a Lender after the Closing Date
through an assignment of an existing Revolving Commitment, the
amount of the assigned "Revolving Commitment" as provided in the
Assignment and Acceptance executed by such Person as an assignee,
as the same may be increased or deceased pursuant to terms
hereof.
"Revolving Commitment Termination Date" shall mean the
earliest of (i) August 26, 2010, (ii) the date on which the
Revolving Commitments are terminated pursuant to Section 2.8 and
(iii) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to
any Lender at any time, the sum of the outstanding principal
amount of such Lender's Revolving Loans, such Lender's LC
Exposure and such Lender's Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of
the Borrower payable to the order of a requesting Lender in the
principal amount of such Lender's Revolving Commitment, in
substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender
(other than the Swingline Lender) to the Borrower under its
Revolving Commitment, which may either be a Base Rate Loan or a
Eurodollar Loan.
"S&P" shall mean Standard & Poor's, a Division of the
McGraw Hill Companies.
"Sale/Leaseback Transaction" shall have the meaning
assigned to such term in Section 7.9.
"Subsidiary" shall mean, with respect to any Person
(the "parent"), any corporation, partnership, joint venture,
limited liability company, association or other entity the
accounts of which would be consolidated with those of the parent
in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP (but
excluding any Variable Interest Entity) as of such date, as well
as any other corporation, partnership, joint venture, limited
liability company, association or other entity (i) of which
securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned,
controlled or held, or (ii) that is, as of such date, otherwise
controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the
parent. Unless otherwise indicated, all references to
"Subsidiary" hereunder shall mean a Subsidiary of the Borrower.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding not to exceed
$15,000,000.
"Swingline Exposure" shall mean, with respect to each
Lender, the principal amount of the Swingline Loans in which such
Lender is legally obligated either to make a Base Rate Loan or to
purchase a participation in accordance with Section 2.5, which
shall equal such Lender's Pro Rata Share of all outstanding
Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank, or any
other Lender that may agree to make Swingline Loans hereunder.
"Swingline Loan" shall mean a loan made to the Borrower
by the Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the
Borrower payable to the order of the Swingline Lender in the
principal amount of the Swingline Commitment, substantially the
form of Exhibit B.
"Swingline Termination Date" shall mean the date that
is two (2) Business Days prior to the Revolving Commitment
Termination Date.
"Swingline Rate" shall mean, for any Interest Period,
the rate as offered by the Swingline Lender and accepted by the
Borrower. Borrower shall have no obligation to accept this rate
and Swingline Lender shall have no obligation to provide it.
"Synthetic Lease" shall mean a lease transaction under
which the parties intend that (i) the lease will be treated as an
"operating lease" by the lessee pursuant to Statement of
Financial Accounting Standards No. 13, as amended and (ii) the
lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like
property.
"Synthetic Lease Obligations" shall mean, with respect
to any Person, the sum of (i) all remaining rental obligations of
such Person as lessee under Synthetic Leases that are
attributable to principal and, without duplication, (ii) all
rental and purchase price payment obligations of such Person
under such Synthetic Leases assuming such Person exercises the
option to purchase the lease property at the end of the lease
term.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.
"Type", when used in reference to a Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to
the Adjusted LIBO Rate or the Base Rate.
"Variable Interest Entity" shall mean a special purpose
entity that must be consolidated with the Borrower under GAAP.
"Variable Interest Entity Obligations" shall mean all
lease obligations owed by the Borrower or any of its Subsidiaries
to a Variable Interest Entity.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Classifications of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred
to by Class (e.g. a "Revolving Loan") or by Type (e.g. a
"Eurodollar Loan" or "Base Rate Loan") or by Class and Type (e.g.
"Revolving Eurodollar Loan"). Borrowings also may be classified
and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. "
Revolving Eurodollar Borrowing").
Section 1.3. Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting terms 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
as in effect from time to time, applied on a basis consistent
with the most recent audited consolidated financial statement of
the Borrower delivered pursuant to Section 5.1(a); provided, that
if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI to eliminate
the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend Article VI for such
purpose), then the Borrower's compliance with such covenant shall
be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such
notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
Section 1.4. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as
the word "shall". In the computation of periods of time from a
specified date to a later specified date, the word "from" means
"from and including" and the word "to" means "to but excluding".
Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or
other document as it was originally executed or as it may from
time to time be amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any
Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and
"hereunder" and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular
provision hereof, (iv) all references to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all
references to a specific time shall be construed to refer to the
time in the city and state of the Administrative Agent's
principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities. Subject to and
upon the terms and conditions herein set forth, (i) the Lenders
hereby establish in favor of the Borrower a revolving credit
facility pursuant to which the Lenders severally agree (to the
extent of such Lender's Revolving Commitment) to make Revolving
Loans to the Borrower in accordance with Section 2.2, (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with
Section 2.23, (iii) the Swingline Lender agrees to make Swingline
Loans in accordance with Section 2.4, and (iv) each Lender agrees
to purchase a participation interest in the Letters of Credit and
the Swingline Loans pursuant to the terms and conditions hereof;
provided, that in no event shall the aggregate principal amount
of all outstanding Revolving Loans, Swingline Loans and
outstanding LC Exposure exceed at any time the Aggregate
Revolving Commitment Amount from time to time in effect.
Section 2.2. Revolving Loans. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make
Revolving Loans, ratably in proportion to its Pro Rata Share, to
the Borrower, from time to time during the Availability Period,
in an aggregate principal amount outstanding at any time that
will not result in (a) such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Commitment or (b) the sum of
the aggregate Revolving Credit Exposures of all Lenders exceeding
the Aggregate Revolving Commitment Amount. During the
Availability Period, the Borrower shall be entitled to borrow,
prepay and reborrow Revolving Loans in accordance with the terms
and conditions of this Agreement; provided, that the Borrower may
not borrow or reborrow should there exist a Default or Event of
Default.
Section 2.3. Procedure for Revolving Borrowings.
The Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in
writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 (a "Notice of Revolving Borrowing") (x) prior to 1:00
p.m. (Atlanta, Georgia time) on the requested date of each Base
Rate Borrowing and (y) prior to 1:00 p.m. (Atlanta, Georgia time)
at least three (3) Business Days prior to the requested date of
each Eurodollar Borrowing. Each Notice of Revolving Borrowing
shall be irrevocable and shall specify: (i) the aggregate
principal amount of such Borrowing, (ii) the date of such
Borrowing (which shall be a Business Day), (iii) the Type of such
Revolving Loan comprising such Borrowing and (iv) in the case of
a Eurodollar Borrowing, the duration of the initial Interest
Period applicable thereto (subject to the provisions of the
definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the
Borrower may request. The aggregate principal amount of each
Eurodollar Borrowing shall be not less than $2,500,000 or a
larger multiple of $500,000, and the aggregate principal amount
of each Base Rate Borrowing shall not be less than $1,000,000 or
a larger multiple of $100,000; provided, that Base Rate Loans
made pursuant to Section 2.5 or Section 2.23(d) may be made in
lesser amounts as provided therein. At no time shall the total
number of Eurodollar Borrowings outstanding at any time exceed
six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall
advise each Lender of the details thereof and the amount of such
Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
Section 2.4. Swingline Commitment. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make
Swingline Loans to the Borrower, from time to time from the
Closing Date to the Swingline Termination Date, in an aggregate
principal amount outstanding at any time not to exceed the lesser
of (i) the Swingline Commitment then in effect and (ii) the
difference between the Aggregate Revolving Commitment Amount and
the aggregate Revolving Credit Exposures of all Lenders. The
Borrower shall be entitled to borrow, repay and reborrow
Swingline Loans in accordance with the terms and conditions of
this Agreement.
Section 2.5. Procedure for Swingline Borrowing; Etc. (a) The
Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each
Swingline Borrowing substantially in the form of Exhibit 2.5
attached hereto ("Notice of Swingline Borrowing") prior to 2:00
p.m. (Atlanta, Georgia time) on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such
Swingline Loan, (ii) the date of such Swingline Loan (which shall
be a Business Day) and (iii) the account of the Borrower to which
the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of
each Notice of Swingline Borrowing. Each Swingline Loan shall
accrue interest at the Swingline Rate and shall have an Interest
Period (subject to the definition thereof) as agreed between the
Borrower and the Swingline Lender. The aggregate principal amount
of each Swingline Loan shall be not less than $250,000 or a
larger multiple of $1,000, or such other minimum amounts agreed
to by the Swingline Lender and the Borrower. The Swingline Lender
will make the proceeds of each Swingline Loan available to the
Borrower in Dollars in immediately available funds at the account
specified by the Borrower in the applicable Notice of Swingline
Borrowing not later than 4:00 p.m. (Atlanta, Georgia time) on the
requested date of such Swingline Loan.
(b) The Swingline Lender, at any time and from time to time in
its sole discretion, may, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on
its behalf), give a Notice of Revolving Borrowing to the
Administrative Agent requesting the Lenders (including the
Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender
will make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account
of the Swingline Lender in accordance with Section 2.6, which
will be used solely for the repayment of such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent),
or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Swingline Lender) shall purchase an
undivided participating interest in such Swingline Loan in an
amount equal to its Pro Rata Share thereof on the date that such
Base Rate Borrowing should have occurred. On the date of such
required purchase, each Lender shall promptly transfer, in
immediately available funds, the amount of its participating
interest to the Administrative Agent for the account of the
Swingline Lender. If such Swingline Loan bears interest at a
rate other than the Base Rate, such Swingline Loan shall
automatically become a Base Rate Loan on the effective date of
any such participation and interest shall become payable on
demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant
to Section 2.5(b) or to purchase the participating interests
pursuant to Section 2.5(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including without
limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have or
claim against the Swingline Lender, the Borrower or any other
Person for any reason whatsoever, (ii) the existence of a Default
or an Event of Default or the termination of any Lender's
Revolving Commitment, (iii) the existence (or alleged existence)
of any event or condition which has had or could reasonably be
expected to have a Material Adverse Effect, (iv) any breach of
this Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing. If such amount is not in fact made available to
the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender,
together with accrued interest thereon for each day from the date
of demand thereof at the Federal Funds Rate until the second
Business Day after such demand and at the Base Rate at all times
thereafter. Until such time as such Lender makes its required
payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid
participation for all purposes of the Loan Documents. In
addition, such Lender shall be deemed to have assigned any and
all payments made of principal and interest on its Loans and any
other amounts due to it hereunder, to the Swingline Lender to
fund the amount of such Lender's participation interest in such
Swingline Loans that such Lender failed to fund pursuant to this
Section 2.5, until such amount has been purchased in full.
Section 2.6. Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in
immediately available funds by 3:30 p.m. (Atlanta, Georgia time)
to the Administrative Agent at the Payment Office; provided, that
the Swingline Loans will be made as set forth in Section 2.5.
The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts that it receives, in
like funds by the close of business on such proposed date, to an
account maintained by the Borrower with the Administrative Agent
or at the Borrower's option, by effecting a wire transfer of such
amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by
any Lender prior to 5:00 p.m. one (1) Business Day prior to the
date of a Borrowing in which such Lender is participating that
such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent
may assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent,
in reliance on such assumption, may make available to the
Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover
such corresponding amount on demand from such Lender together
with interest at the Federal Funds Rate for up to two (2) days
and thereafter at the rate specified for such Borrowing. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent
shall promptly notify the Borrower, and the Borrower shall
immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for such Bor
rowing. Nothing in this subsection shall be deemed to relieve
any Lender from its obligation to fund its Pro Rata Share of any
Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such
Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the
basis of their respective Pro Rata Shares. No Lender shall be
responsible for any default by any other Lender in its
obligations hereunder, and each Lender shall be obligated to make
its Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to make its Loans hereunder.
Section 2.7. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Notice of Borrowing, and in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Notice of Borrowing. Thereafter, the Borrower
may elect to convert such Borrowing into a different Type or to
continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided
in this Section 2.7. The Borrower may elect different options
with respect to different portions of the affected Borrowing, in
which case each such portion shall be allocated ratably among the
Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section 2.7, the
Borrower shall give the Administrative Agent prior written notice
(or telephonic notice promptly confirmed in writing) of each
Borrowing substantially in the form of Exhibit 2.7 (a "Notice of
Conversion/Continuation") that is to be converted or continued,
as the case may be, (x) prior to 1:00 p.m.(Atlanta, Georgia time)
on the requested date of a conversion into a Base Rate Borrowing
and (y) prior to 1:00 p.m. (Atlanta, Georgia time) three (3)
Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of Conversion/Continuation
shall be irrevocable and shall specify (i) the Borrowing to which
such Notice of Continuation/Conversion applies and if different
options are being elected with respect to different portions
thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) shall be specified
for each resulting Borrowing); (ii) the effective date of the
election made pursuant to such Notice of Continuation/Conversion,
which shall be a Business Day, (iii) whether the resulting
Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a
Eurodollar Borrowing, the Interest Period applicable thereto
after giving effect to such election, which shall be a period
contemplated by the definition of "Interest Period". If any such
Notice of Continuation/Conversion requests a Eurodollar Borrowing
but does not specify an Interest Period, the Borrower shall be
deemed to have selected an Interest Period of one month. The
principal amount of any resulting Borrowing shall satisfy the
minimum borrowing amount for Eurodollar Borrowings and Base Rate
Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of
any Eurodollar Borrowing, the Borrower shall have failed to
deliver a Notice of Conversion/ Continuation, then, unless such
Borrowing is repaid as provided herein, the Borrower shall be
deemed to have elected to convert such Borrowing to a Base Rate
Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists,
unless the Administrative Agent and each of the Lenders shall
have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the
Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the
details thereof and of such Lender's portion of each resulting
Borrowing.
Section 2.8. Optional Reduction and Termination of Commitments.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Revolving Commitment Termination Date,
except that the Swingline Commitment shall terminate on the
Swingline Termination Date.
(b) Upon at least three (3) Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the
Borrower may reduce the Aggregate Revolving Commitments in part
or terminate the Aggregate Revolving Commitments in whole;
provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each
Lender, (ii) any partial reduction pursuant to this Section 2.8
shall be in an amount of at least $2,500,000 and any larger
multiple of $500,000, and (iii) no such reduction shall be
permitted which would reduce the Aggregate Revolving Commitments
to an amount less than the outstanding Revolving Credit Exposures
of all Lenders. Any such reduction in the Aggregate Revolving
Commitments shall result in a proportionate reduction (rounded to
the next lowest integral multiple of $100,000) in the Swingline
Commitment and the LC Commitment; provided, however, no such
reduction shall reduce the LC Commitment to an amount less than
the LC Exposure of all Lenders.
Section 2.9. Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid
interest thereon) on the Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued interest thereon) on the
earlier of (i) the last day of the Interest Period applicable to
such Borrowing and (ii) the Swingline Termination Date.
Section 2.10. Evidence of Indebtedness. (a) Each Lender shall
maintain in accordance with its usual practice appropriate
records evidencing the Indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to
time, including the amounts of principal and interest payable
thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate
records in which shall be recorded (i) the Revolving Commitment
of each Lender, (ii) the amount of each Loan made hereunder by
each Lender, the Class and Type thereof and the Interest Period
applicable thereto, (iii) the date of each continuation thereof
pursuant to Section 2.7, (iv) the date of each conversion of all
or a portion thereof to another Type pursuant to Section 2.7, (v)
the date and amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender
hereunder in respect of such Loans and (vi) both the date and
amount of any sum received by the Administrative Agent hereunder
from the Borrower in respect of the Loans and each Lender's Pro
Rata Share thereof. The entries made in such records shall be
prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, that the
failure or delay of any Lender or the Administrative Agent in
maintaining or making entries into any such record or any error
therein shall not in any manner affect the obligation of the
Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this
Agreement.
(b) At the request of any Lender (including the Swingline
Lender) at any time, the Borrower agrees that it will execute and
deliver to such Lender a Revolving Credit Note and, in the case
of the Swingline Lender only, a Swingline Note, payable to the
order of such Lender.
Section 2.11. Optional Prepayments.
(a) The Borrower shall have the right at any time and from time
to time to prepay any Borrowing, in whole or in part, without
premium or penalty, by giving irrevocable written notice (or
telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment
of any Eurodollar Borrowing, 1:00 p.m. not less than three (3)
Business Days prior to any such prepayment, (ii) in the case of
any prepayment of any Base Rate Borrowing, 1:00 p.m. on the date
of such prepayment, and (iii) in the case of Swingline
Borrowings, prior to 11:00 a. m. on the date of such prepayment.
Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each
Borrowing or portion thereof to be prepaid. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro
Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with
accrued interest to such date on the amount so prepaid in
accordance with Section 2.13(e); provided, that if a Eurodollar
Borrowing is prepaid on a date other than the last day of an
Interest Period applicable thereto, the Borrower shall also pay
all amounts required pursuant to Section 2.19. Each partial
prepayment of any Loan (other than a Swingline Loan) shall be in
an amount that would be permitted in the case of an advance of a
Revolving Borrowing of the same Type pursuant to Section 2.3 or
in the case of a Swingline Loan pursuant to Section 2.5. Each
prepayment of a Borrowing shall be applied ratably to the Loans
comprising such Borrowing.
Section 2.12. Mandatory Prepayments. If at any time the
Revolving Credit Exposure of all Lenders exceeds the Aggregate
Revolving Commitment Amount at such time, as reduced pursuant to
Section 2.8 or otherwise, the Borrower shall immediately repay
Swingline Loans and Revolving Loans in an amount equal to such
excess, together with all accrued and unpaid interest on such
excess amount and any amounts due under Section 2.19. Each
prepayment of a Borrowing shall be applied ratably first to the
Swingline Loans to the full extent thereof, then to the Revolving
Base Rate Loans to the full extent thereof, and finally to
Revolving Eurodollar Loans to the full extent thereof. If after
giving effect to prepayment of all Swingline Loans and Revolving
Loans, the Revolving Credit Exposure of all Lenders exceeds the
Aggregate Revolving Commitment Amount, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Issuing Bank and
the Lenders, an amount in cash equal to such excess plus any
accrued and unpaid fees thereon to be held as collateral for the
LC Exposure. Such account shall be administered in accordance
with Section 2.23(g) hereof.
Section 2.13. Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar
Loan at the Adjusted LIBO Rate for the applicable Interest Period
in effect for such Loan, plus, in each case, the Applicable
Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at
the Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at
the option of the Required Lenders, the Borrower shall pay
interest ("Default Interest") with respect to all Eurodollar
Loans at the rate otherwise applicable for the then-current
Interest Period plus an additional 2% per annum until the last
day of such Interest Period, and thereafter, and with respect to
all Base Rate Loans (including all Swingline Loans) and all other
Obligations hereunder (other than Loans and Hedging Obligations),
at the Base Rate plus the Applicable Margin plus an additional 2%
per annum.
(d) Interest on the principal amount of all Loans shall accrue
from and including the date such Loans are made to but excluding
the date of any repayment thereof. Interest on all outstanding
Base Rate Loans and Swingline Loans shall be payable quarterly in
arrears on the last day of each March, June, September and
December, on the Swingline Termination Date (with respect to
Swingline Loans) and on the Revolving Commitment Termination
Date. Interest on all outstanding Eurodollar Loans shall be
payable on the last day of each Interest Period applicable
thereto, and, in the case of any Eurodollar Loans having an
Interest Period in excess of three months, on each day which
occurs every three months, after the initial date of such
Interest Period, and on the Revolving Commitment Termination
Date. Interest on any Loan which is converted into a Loan of
another Type or which is repaid or prepaid shall be payable on
the date of such conversion or on the date of any such repayment
or prepayment (on the amount repaid or prepaid) thereof. All
Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the
Borrower and the Lenders of such rate in writing (or by
telephone, promptly confirmed in writing). Any such
determination shall be conclusive and binding for all purposes,
absent manifest error.
Section 2.14. Fees.
(a) The Borrower shall pay to the Administrative Agent for its
own account fees in the amounts and at the times previously
agreed upon in writing by the Borrower and the Administrative
Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment
fee, which shall accrue at the Applicable Percentage per annum
(determined daily in accordance with Schedule I) on the daily
amount of the unused Revolving Commitment of such Lender during
the Availability Period. For purposes of computing commitment
fees with respect to the Revolving Commitments, the Revolving
Commitment of each Lender shall be deemed used to the extent of
the outstanding Revolving Loans and LC Exposure, but not
Swingline Exposure, of such Lender.
(c) Letter of Credit Fee. The Borrower agrees to pay (i) to the
Administrative Agent, for the account of each Lender, a letter of
credit fee with respect to its participation in each Letter of
Credit, which shall accrue at the Applicable Margin for
Eurodollar Loans then in effect on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) attributable to
such Letter of Credit during the period from and including the
date of issuance of such Letter of Credit to but excluding the
date on which such Letter of Credit expires or is drawn in full
(including without limitation any LC Exposure that remains
outstanding after the Revolving Commitment Termination Date) and
(ii) to the Issuing Bank for its own account a fronting fee,
which shall accrue at the rate of 0.125% per annum on the average
daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the
Availability Period (or until the date that such Letter of Credit
is irrevocably cancelled, whichever is later), as well as the
Issuing Bank's standard fees with respect to issuance,
amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Notwithstanding the
foregoing, if the Required Lenders elect to increase the interest
rate on the Loans to the Default Interest pursuant to Section
2.13(c), the rate per annum used to calculate the letter of
credit fee pursuant to clause (i) above shall automatically be
increased by an additional 2% per annum.
(d) Payments. Accrued fees under paragraphs (b) and (c) above
shall be payable quarterly in arrears on the last day of each
March, June, September and December, commencing on September 30,
2005 and on the Revolving Commitment Termination Date (and if
later, the date the Loans and LC Exposure shall be repaid in
their entirety).
Section 2.15. Computation of Interest and Fees. All
computations of interest and fees hereunder shall be made on the
basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest or fees are payable (to the
extent computed on the basis of days elapsed). Each determination
by the Administrative Agent of an interest amount or fee
hereunder shall be made in good faith and, except for manifest
error, shall be final, conclusive and binding for all purposes.
Section 2.16. Inability to Determine Interest Rates. If prior
to the commencement of any Interest Period for any Eurodollar
Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant interbank
market, adequate means do not exist for ascertaining LIBOR for
such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately
and fairly reflect the cost to such Lenders (or Lender, as the
case may be) of making, funding or maintaining their (or its, as
the case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic
notice, promptly confirmed in writing) to the Borrower and to the
Lenders as soon as practicable thereafter. In the case of
Eurodollar Loans, until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, (i) the obligations of the Lenders
to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended
and (ii) all such affected Loans shall be converted into Base
Rate Loans on the last day of the then current Interest Period
applicable thereto unless the Borrower prepays such Loans in
accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of
any Eurodollar Revolving Borrowing for which a Notice of
Revolving Borrowing has previously been given that it elects not
to borrow on such date, then such Revolving Borrowing shall be
made as a Base Rate Borrowing.
Section 2.17. Illegality. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund
any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly
give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligation of such Lender to make
Eurodollar Revolving Loans, or to continue or convert outstanding
Loans as or into Eurodollar Loans, shall be suspended. In the
case of the making of a Eurodollar Revolving Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part
of the same Revolving Borrowing for the same Interest Period and
if the affected Eurodollar Loan is then outstanding, such Loan
shall be converted to a Base Rate Loan either (i) on the last day
of the then current Interest Period applicable to such Eurodollar
Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine
that it may not lawfully continue to maintain such Eurodollar
Loan to such date. Notwithstanding the foregoing, the affected
Lender shall, prior to giving such notice to the Administrative
Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if
such designation would not otherwise be disadvantageous to such
Lender in the good faith exercise of its discretion.
Section 2.18. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in
the determination of the Adjusted LIBO Rate hereunder against
assets of, deposits with or for the account of, or credit
extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any
Letter of Credit or any participation therein;
and the result of either of the foregoing is to increase the cost
to such Lender of making, converting into, continuing or
maintaining a Eurodollar Loan or to increase the cost to such
Lender or the Issuing Bank of participating in or issuing any
Letter of Credit or to reduce the amount received or receivable
by such Lender or the Issuing Bank hereunder (whether of
principal, interest or any other amount), then the Borrower shall
promptly pay, upon written notice from and demand by such Lender
on the Borrower (with a copy of such notice and demand to the
Administrative Agent), to the Administrative Agent for the
account of such Lender, within five Business Days after the date
of such notice and demand, additional amount or amounts
sufficient to compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have determined that
on or after the date of this Agreement any Change in Law
regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing
Bank's capital (or on the capital of such Lender's or the Issuing
Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a
level below that which such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's parent corporation could have
achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with
respect to capital adequacy) then, from time to time, within five
(5) Business Days after receipt by the Borrower of written demand
by such Lender (with a copy thereof to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as
will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's parent corporation for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's parent
corporation, as the case may be, specified in paragraph (a) or
(b) of this Section 2.18 shall be delivered to the Borrower (with
a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or
the Issuing Bank, as the case may be, such amount or amounts
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section 2.18 shall
not constitute a waiver of such Lender's or the Issuing Bank's
right to demand such compensation.
Section 2.19. Funding Indemnity. In the event of (a) the
payment of any principal of a Eurodollar Loan other than on the
last day of the Interest Period applicable thereto (including as
a result of an Event of Default), (b) the conversion or
continuation of a Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, or (c) the failure by the
Borrower to borrow, prepay, convert or continue any Eurodollar
Loan on the date specified in any applicable notice (regardless
of whether such notice is withdrawn or revoked) then, in any such
event, the Borrower shall compensate each Lender, within five (5)
Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or expense shall be deemed to
include an amount determined by such Lender to be the excess, if
any, of (A) the amount of interest that would have accrued on
the principal amount of such Eurodollar Loan if such event had
not occurred at the Adjusted LIBO Rate applicable to such
Eurodollar Loan for the period from the date of such event to the
last day of the then current Interest Period therefor (or in the
case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Eurodollar
Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBO Rate were set on the date such Eurodollar Loan
was prepaid or converted or the date on which the Borrower failed
to borrow, convert or continue such Eurodollar Loan. A certifi
cate as to any additional amount payable under this Section 2.19
submitted to the Borrower by any Lender (with a copy to the
Administrative Agent) shall be conclusive, absent manifest error.
Section 2.20. Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) the
Administrative Agent, any Lender or the Issuing Bank (as the case
may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable
law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five (5) Business Days after
written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes paid by the Administrative Agent, such
Lender or the Issuing Bank, as the case may be, on or with
respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under
this Section 2.20) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing
Bank, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to
which the United States is a party, with respect to payments
under this Agreement shall deliver to the Borrower (with a copy
to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Without limiting the
generality of the foregoing, each Foreign Lender agrees that it
will deliver to the Administrative Agent and the Borrower (or in
the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2)
duly completed copies of (i) Internal Revenue Service Form W-8
ECI, or any successor form thereto, certifying that the payments
received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the
United States; or (ii) Internal Revenue Service Form W-8 BEN, or
any successor form thereto, certifying that such Foreign Lender
is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding
tax on payments of interest; or (iii) Internal Revenue Service
Form W-8 BEN, or any successor form prescribed by the Internal
Revenue Service, together with a certificate (A) establishing
that the payment to the Foreign Lender qualifies as "portfolio
interest" exempt from U.S. withholding tax under Code section
871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), or the
obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary
course of its trade or business, within the meaning of that
section; (2) the Foreign Lender is not a 10% shareholder of the
Borrower within the meaning of Code section 871(h)(3) or
881(c)(3)(B); and (3) the Foreign Lender is not a controlled
foreign corporation that is related to the Borrower within the
meaning of Code section 881(c)(3)(C); or (iv) such other Internal
Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender
shall deliver to the Borrower and the Administrative Agent such
forms on or before the date that it becomes a party to this
Agreement (or in the case of a Participant, on or before the date
such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form
previously delivered by such Foreign Lender. Each such Foreign
Lender shall promptly notify the Borrower and the Administrative
Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the
Internal Revenue Service for such purpose).
Section 2.21. Payments Generally; Pro Rata Treatment.
(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under
Section 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m.
(Atlanta, Georgia time), on the date when due, in immediately
available funds, free and clear of any defenses, rights of set-
off, counterclaim, or withholding or deduction of taxes. Any
amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to
the Administrative Agent at the Payment Office, except payments
to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to
Sections 2.18, 2.19 and 2.20 and 10.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of
any payment accruing interest, interest thereon shall be made
payable for the period of such extension. All payments hereunder
shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards
payment of interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements
then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall obtain payment in respect of any
principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans that would
result in such Lender receiving payment of a greater proportion
of the aggregate amount of its Revolving Loans and participations
in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans and
participations in LC Disbursements and Swingline Loans of other
Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and participations in LC
Disbursements and Swingline Loans; provided, that (i) if any such
participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of
this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
Disbursements or Swingline Loans to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower
has made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Lenders
or the Issuing Bank, as the case may be, the amount or amounts
due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from
and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.5(b), 2.23(d) or (e), 2.6(b),
2.21(d) or 10.3(d), then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for
the account of such Lender to satisfy such Lender's obligations
under such Sections until all such unsatisfied obligations are
fully paid.
Section 2.22. Mitigation of Obligations. If any Lender
requests compensation under Section 2.18, or if the Borrower is
required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.20, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the
sole judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable under Section 2.18 or
Section 2.20, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all costs and expenses incurred by
any Lender in connection with such designation or assignment.
Section 2.23. Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to
Section 2.23(d), agrees to issue, at the request of the Borrower,
Letters of Credit for the account of the Borrower on the terms
and conditions hereinafter set forth; provided, that (i) each
Letter of Credit shall expire no later than the earlier of
(A) the date two years after the date of issuance of such Letter
of Credit (or in the case of any renewal or extension thereof,
one year after such renewal or extension) and (B) the date that
is five (5) Business Days prior to the Revolving Commitment
Termination Date or, subject to the terms and requirements of
Section 2.23(k), the Extended LC Expiration Date, as the case may
be; (ii) each Letter of Credit shall be in a stated amount of at
least $250,000; and (iii) the Borrower may not request any Letter
of Credit, if, after giving effect to such issuance (A) the
aggregate LC Exposure would exceed the LC Commitment or (B) the
aggregate Revolving Credit Exposure of all Lenders would exceed
the Aggregate Revolving Commitment Amount. Upon the issuance of
each Letter of Credit each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the
Issuing Bank without recourse a participation in such Letter of
Credit equal to such Lender's Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit (i) on
the Closing Date with respect to all Existing Letters of Credit
and (ii) on the date of issuance with respect to all other
Letters of Credit. Each issuance of a Letter of Credit shall be
deemed to utilize the Revolving Commitment of each Lender by an
amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of
Credit), the Borrower shall give the Issuing Bank and the
Administrative Agent irrevocable written notice at least three
(3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter
of Credit is to be issued (or amended, extended or renewed, as
the case may be), the expiration date of such Letter of Credit,
the amount of such Letter of Credit , the name and address of the
beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of
Credit. In addition to the satisfaction of the conditions in
Article III, the issuance of such Letter of Credit (or any
amendment which increases the amount of such Letter of Credit)
will be subject to the further conditions that such Letter of
Credit shall be in such form and contain such terms as the
Issuing Bank shall approve and that the Borrower shall have
executed and delivered any additional applications, agreements
and instruments relating to such Letter of Credit as the Issuing
Bank shall reasonably require; provided, that in the event of any
conflict between such applications, agreements or instruments and
this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received such notice and if not, the
Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately
preceding the date the Issuing Bank is to issue the requested
Letter of Credit directing the Issuing Bank not to issue the
Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.23(a)
or that one or more conditions specified in Article III are not
then satisfied, then, subject to the terms and conditions hereof,
the Issuing Bank shall, on the requested date, issue such Letter
of Credit in accordance with the Issuing Bank's usual and
customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment
and whether the Issuing Bank has made or will make a LC
Disbursement thereunder; provided, that any failure to give or
delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with
respect to such LC Disbursement. The Borrower shall be
irrevocably and unconditionally obligated to reimburse the
Issuing Bank for any LC Disbursements paid by the Issuing Bank in
respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified
the Issuing Bank and the Administrative Agent prior to 11:00 a.m.
(Atlanta, Georgia time) on the Business Day immediately prior to
the date on which such drawing is honored that the Borrower
intends to reimburse the Issuing Bank for the amount of such
drawing in funds other than from the proceeds of Revolving Loans,
the Borrower shall be deemed to have timely given a Notice of
Revolving Borrowing to the Administrative Agent requesting the
Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank;
provided, that for purposes solely of such Borrowing, the
conditions precedent set forth in Section 3.2 hereof shall not be
applicable. The Administrative Agent shall notify the Lenders of
such Borrowing in accordance with Section 2.3, and each Lender
shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account
of the Issuing Bank in accordance with Section 2.6. The proceeds
of such Borrowing shall be applied directly by the Administrative
Agent to reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent),
or is not, made in accordance with the foregoing provisions, then
each Lender (other than the Issuing Bank) shall be obligated to
fund the participation that such Lender purchased pursuant to
subsection (a) in an amount equal to its Pro Rata Share of such
LC Disbursement on and as of the date which such Base Rate
Borrowing should have occurred. Each Lender's obligation to fund
its participation shall be absolute and unconditional and shall
not be affected by any circumstance, including without limitation
(i) any setoff, counterclaim, recoupment, defense or other right
that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the
existence of a Default or an Event of Default or the termination
of the Aggregate Revolving Commitments, (iii) any adverse change
in the condition (financial or otherwise) of the Borrower or any
of its Subsidiaries, (iv) any breach of this Agreement by the
Borrower or any other Lender, (v) any amendment, renewal or
extension of any Letter of Credit or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of
the foregoing. On the date that such participation is required to
be funded, each Lender shall promptly transfer, in immediately
available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank.
Whenever, at any time after the Issuing Bank has received from
any such Lender the funds for its participation in a LC
Disbursement, the Issuing Bank (or the Administrative Agent on
its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be,
will distribute to such Lender its Pro Rata Share of such
payment; provided, that if such payment is required to be
returned for any reason to the Borrower or to a trustee,
receiver, liquidator, custodian or similar official in any
bankruptcy proceeding, such Lender will return to the
Administrative Agent or the Issuing Bank any portion thereof
previously distributed by the Administrative Agent or the Issuing
Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section
2.23 on the due date therefor, such Lender shall pay interest to
the Issuing Bank (through the Administrative Agent) on such
amount from such due date to the date such payment is made at a
rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank
within three (3) Business Days of such due date, then,
retroactively to the due date, such Lender shall be obligated to
pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the
deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the
benefit of the Issuing Bank and the Lenders, an amount in cash
equal to the LC Exposure as of such date plus any accrued and
unpaid fees thereon; provided, that the obligation to deposit
such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand
or notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (g) or
(h) of Section 8.1. Such deposit shall be held by the
Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of
withdrawal, over such account. Borrower agrees to execute any
documents and/or certificates to effectuate the intent of this
paragraph. Other than any interest earned on the investment of
such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest.
Interest and profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall applied
by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it had not been reimbursed and to the
extent so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at
such time or, if the maturity of the Loans has been accelerated,
with the consent of the Required Lenders, be applied to satisfy
other obligations of the Borrower under this Agreement. If the
Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not so applied as aforesaid) shall be
returned to the Borrower within three Business Days after all
Events of Default have been cured or waived. If the Borrower is
required to provide an amount of cash collateral hereunder as a
result of a Letter of Credit having an Extended LC Expiration
Date, such amount (to the extent not so applied as aforesaid)
shall be returned to the Borrower within three (3) Business Days
after the earlier to occur of (i) the Extended LC Expiration
Date, or (ii) the cancellation or termination of such Letter of
Credit; provided, however, that the Borrower shall only be
entitled to receive an amount of cash collateral, if any, that is
in excess of any unreimbursed LC Disbursement existing at such
time. To the extent the Revolving Commitment Termination Date is
extended more than five (5) Business Days beyond the Extended LC
Expiration Date of any Letter of Credit, the Issuing Bank will
release the cash collateral for such Letter of Credit promptly
upon request of the Borrower.
(h) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to
each Lender and the Borrower a report describing the aggregate
Letters of Credit outstanding at the end of such Fiscal Quarter.
Upon the request of any Lender from time to time, the Issuing
Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter
of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and
shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever and irrespective of
any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower
may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons or entities for whom any
such beneficiary or transferee may be acting), any Lender
(including the Issuing Bank) or any other Person, whether in
connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any
respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank
that does not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the
provisions of this Section 2.23, constitute a legal or equitable
discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders
nor any Related Party of any of the foregoing shall have any
liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control
of the Issuing Bank; provided, that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the
Borrower to the extent of any actual direct damages (as opposed
to special, indirect (including claims for lost profits or other
consequential damages), or punitive damages, claims in respect of
which are hereby waived by the Borrower to the extent permitted
by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's failure to exercise care when determining
whether drafts or other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto
expressly agree, that in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing
Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with
respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to either (i) the
Uniform Customs and Practices for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time, or (ii) the
International Standby Practices 1998 (ISP98), as the same may be
amended from time to time; and to the extent not inconsistent
therewith, the governing law of this Agreement set forth in
Section 10.5.
(k) Any Letters of Credit issued pursuant to Section 2.23(a)
having an Extended LC Expiration Date shall be subject to the
following additional terms and requirements:
(i) Not later than five (5) Business Days prior to the Revolving
Commitment Termination Date, the Borrower shall deposit in an
account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Issuing Bank and
the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any fees accrued and unpaid thereon and all fees
that would accrue thereon from such date until the applicable
Extended LC Expiration Dates. All such amounts shall be required
to be so deposited by the Borrower notwithstanding the absence of
any Event of Default hereunder or any notice from the
Administrative Agent or Required Lenders, and shall be otherwise
held by the Administrative Agent pursuant to the terms of Section
2.23(g).
(ii) Unless the Borrower shall have notified the Issuing Bank and
the Administrative Agent prior to 11 a.m. (Atlanta, Georgia time)
on the Business Day immediately prior to the date on which such
cash deposit is to be made that the Borrower intends to make such
cash deposit from funds other than from the proceeds of Revolving
Loans, the Borrower shall be deemed to have timely given a Notice
of Revolving Borrowing to the Administrative Agent requesting the
Lenders to fund a Base Rate Borrowing on the date such cash
deposit is required to be made in an amount equal to such cash
deposit; provided, that for purposes solely of such Borrowing,
the conditions precedent set forth in Section 3.2 hereof shall
not be applicable. The Administrative Agent shall notify the
Lenders of such Borrowing in accordance with Section 2.3, and
each Lender shall make the proceeds of its Base Rate Loan
included in such Borrowing available to the Administrative Agent
to be held as provided in this Section 2.22. If for any reason a
Base Rate Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender shall
be obligated to fund an amount equal to its Pro Rata Share of
such cash amount on and as of the date on which such cash deposit
was required to have been made. Each Lender's obligation to fund
such amount shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation, the
circumstances described in Section 2.22(e), and shall otherwise
be paid by the Lenders to the Administrative Agent and
distributed by the Administrative Agent to the Lenders as
otherwise provided by the terms of Section 2.22(e).
(iii) No Letter of Credit having an Extended LC Expiration
Date shall be subject to any further renewals or extensions of
the expiration date thereof.
(iv) The issuance of any Letter of Credit having
an Extended LC Expiration Date shall in no event be deemed
to extend or otherwise alter the Availability Period or the
Revolving Commitment Termination Date, all of which shall
continue in effect as otherwise provided herein. All
provisions of this Agreement, including without limitation,
fees accruing in respect of such Letters of Credit pursuant
to Section 2.14(c), and interest payable on any Revolving
Loans made in respect of the Borrower's obligations owing in
respect of such Letters of Credit, shall remain in effect
with respect to all such Letters of Credit. If not sooner
paid, all amounts due in respect of all such Letters of
Credit shall be paid in full by the Borrower on the
respective Extended LC Expiration Dates thereof.
Section 2.24. Increase of Commitments; Additional Lenders.
(a) So long as no Event of Default has occurred and is
continuing, from time to time after the Closing Date, Borrower
may, upon at least 30 days' written notice to the Administrative
Agent (who shall promptly provide a copy of such notice to each
Lender), propose to increase the Aggregate Revolving Commitments
by an aggregate amount not to exceed the Additional Commitment
Amount. Each Lender shall have the right for a period of 10 days
following receipt of such notice, to elect by written notice to
the Borrower and the Administrative Agent to increase its
Revolving Commitment by a principal amount equal to its Pro Rata
Share of the Additional Commitment Amount. No Lender (or any
successor thereto) shall have any obligation to increase its
Revolving Commitment or its other obligations under this
Agreement and the other Loan Documents, and any decision by a
Lender to increase its Revolving Commitment shall be made in its
sole discretion independently from any other Lender.
(b) If any Lender shall not elect to increase its Revolving
Commitment pursuant to subsection (a) of this Section 2.24, the
Borrower may designate another bank or other financial
institution (which may be, but need not be, one or more of the
existing Lenders) which at the time agrees to, in the case of any
such Person that is an existing Lender, increase its Revolving
Commitment and in the case of any other such Person (an
"Additional Lender"), become a party to this Agreement; provided,
however, that any new bank or financial institution must be
acceptable to the Administrative Agent, which acceptance will not
be unreasonably withheld or delayed. The sum of the increases in
the Revolving Commitments of the existing Lenders pursuant to
this subsection (b) plus the Revolving Commitments of the
Additional Lenders shall not in the aggregate exceed the
previously unsubscribed amount of the Additional Commitment
Amount pursuant to subsection (a).
(c) In addition to subsections (a) and (b) above, so long as no
Event of Default has occurred and is continuing, the Borrower
may, upon at least 30 days' prior written notice to the
Administrative Agent (who shall promptly provide a copy of such
notice to each Lender) and the administrative agent under the
Credit Services Credit Agreement, elect to have (i) all Lenders
that are also parties to the Credit Services Credit Agreement
increase their Revolving Commitments under this Agreement, and
(ii) any other lenders party to the Credit Services Credit
Agreement that are not Lenders join this Agreement as a Lender
and provide a new Revolving Commitment hereunder, in each case
simultaneously with the termination by the Borrower of the Credit
Services Revolving Commitments and the repayment in full of all
"Obligations" (as defined in the Credit Services Credit
Agreement). Each Lender under this Agreement (i) agrees to
increase its Revolving Commitment hereunder by the amount, if
any, of its Credit Services Revolving Commitment and (ii)
consents to the addition of new Lenders hereunder that previously
provided Credit Services Revolving Commitments but not Revolving
Commitments, in each case, subject to the termination of the
Credit Services Revolving Commitments and repayment in full of
all "Obligations" (as defined in the Credit Services Credit
Agreement). Each Person that is not a Lender prior to converting
its Credit Services Revolving Commitment to a Revolving
Commitment shall be deemed to be an Additional Lender for
purposes of this Section 2.24. The sum of the increases in the
Revolving Commitments pursuant to this subsection (c) shall not
in the aggregate exceed the Credit Services Revolving Commitments
in effect immediately prior to the termination thereof.
(d) An increase in the aggregate amount of the Revolving
Commitments pursuant to subsections (a), (b) and (c) of this
Section 2.24 shall become effective upon the receipt by the
Administrative Agent of a supplement or joinder in form and
substance satisfactory to the Administrative Agent executed by
the Borrower, each Additional Lender and each Lender whose
Revolving Commitment is to be increased, setting forth the new
Revolving Commitments of such Lenders and setting forth the
agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof,
together with Notes evidencing such increase in the Commitments,
such evidence of appropriate corporate authorization on the part
of the Borrower with respect to the increase in the Revolving
Commitments and such opinions of counsel for the Borrower with
respect to the increase in the Revolving Commitments as the
Administrative Agent may reasonably request and, with respect to
increases in the Revolving Commitments pursuant to subsection (c)
above, evidence that the Credit Services Revolving Commitments
have been terminated and all "Obligations" as defined in the
Credit Services Credit Agreement have been terminated.
(e) Upon the acceptance of any such agreements by the
Administrative Agent, and the satisfaction of the conditions set
forth on subsection (d), the Aggregate Revolving Commitment
Amount shall automatically be increased by the amount of the
Revolving Commitments added through such agreements, and Schedule
II shall automatically be deemed amended to reflect the Revolving
Commitments of all Lenders after giving effect to the addition of
such Revolving Commitments.
(f) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.24 that is not pro rata
among all Lenders, (x) within five Business Days, in the case of
any Base Rate Loans then outstanding, and at the end of the then
current Interest Period with respect thereto, in the case of any
Eurodollar Loans then outstanding, the Borrower shall prepay such
Loans in their entirety and, to the extent the Borrower elects to
do so and subject to the conditions specified in Article III, the
Borrower shall reborrow Loans from the Lenders in proportion to
their respective Revolving Commitments after giving effect to
such increase, until such time as all outstanding Loans are held
by the Lenders in proportion to their respective Commitments
after giving effect to such increase and (y) effective upon such
increase, the amount of the participations held by each Lender in
each Letter of Credit then outstanding shall be adjusted
automatically such that, after giving effect to such adjustments,
the Lenders shall hold participations in each such Letter of
Credit in proportion to their respective Revolving Commitments.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1. Conditions To Effectiveness. The obligations of
the Lenders (including the Swingline Lender) to make Loans and
the obligation of the Issuing Bank to issue any Letter of Credit
hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance
with Section 10.2).
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel
to the Administrative Agent) required to be reimbursed or paid by
the Borrower hereunder, under any other Loan Document and under
any agreement with the Administrative Agent or SunTrust Capital
Markets, Inc., as Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on behalf of
each party hereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of
a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement;
(ii) duly executed Notes payable to such Lender;
(iii) evidence that the Existing Credit Agreement has been
terminated, and all interest, fees and principal accrued
thereunder through the Closing Date will be paid in full from the
initial Revolving Loan under this Agreement;
(iv) a certificate of the Secretary or Assistant Secretary of
Borrower, attaching and certifying copies of its bylaws and of
the resolutions of its boards of directors, authorizing the
execution, delivery and performance of the Loan Documents to
which it is a party and certifying the name, title and true
signature of each officer of Borrower executing the Loan
Documents;
(v) certified copies of the articles of incorporation of
Borrower, together with certificates of good standing or
existence, as may be available from the Secretary of State of the
jurisdiction of incorporation of Borrower and each other
jurisdiction where the Borrower is required to be qualified to do
business as a foreign corporation;
(vi) a favorable written opinion of Xxxxx, Xxxxxxxx & Xxxxxxx,
counsel to the Borrower, addressed to the Administrative Agent
and each of the Lenders, and covering such matters relating to
the Borrower, the Loan Documents and the transactions
contemplated therein as the Administrative Agent or the Required
Lenders shall reasonably request;
(vii) a certificate, dated the Closing Date and signed by a
Responsible Officer, certifying that (x) no Default or Event of
Default exists, (y) all representations and warranties of
Borrower set forth in the Loan Documents are true and correct and
(z) since the date of the financial statements of the Borrower
described in Section 4.4, there shall have been no change which
has had or could reasonably be expected to have a Material
Adverse Effect;
(viii) a duly executed Notice of Revolving Borrowing;
(ix) a duly executed funds disbursement agreement for the initial
Revolving Borrowing;
(x) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be
made or obtained under any Requirement of Law, or by any
Contractual Obligation of Borrower, in connection with the
execution, delivery, performance, validity and enforceability of
the Loan Documents or any of the transactions contemplated
thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and
effect and all applicable waiting periods shall have expired, and
no investigation or inquiry by any governmental authority
regarding the transactions contemplated hereby shall be ongoing;
and
(xi) copies of (A) the consolidated financial statements of
Borrower and its Subsidiaries for the Fiscal Year ended December
31, 2004, including balance sheets, income and cash flow
statements audited by independent public accountants of
recognized national standing and prepared in conformity with
GAAP, (B) the consolidated financial statements of Borrower and
its Subsidiaries for the Fiscal quarter ending June 30, 2005,
including balance sheets, income and cash flow statements
prepared in accordance with GAAP, subject to year end audit
adjustments and the absence of footnotes and (C) such other
financial information as the Administrative Agent may reasonably
request;
(xii) certificates of insurance issued on behalf of insurers
of the Borrower and all guarantors, describing in reasonable
detail the types and amounts of insurance (property and
liability) maintained by the Borrower, naming the Administrative
Agent as additional insured; and
(xiii) a certified copy of the Prudential Agreement as in
effect on the date hereof.
(c) Credit Services and Borrower shall have
executed and delivered the Credit Services Credit Agreement and
the other "Loan Documents" referred to therein, which shall be in
form and substance satisfactory to the Administrative Agent and
the Required Lenders, and the Administrative Agent and the
Required Lenders shall have received copies thereof, together
with evidence that all conditions precedent to the effectiveness
thereof have been satisfied and all transactions contemplated by
the Credit Services Credit Agreement have been consummated.
Section 3.2. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing and of the
Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions
at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable:
(a) no Default or Event of Default shall exist;
(b) all representations and warranties set forth in the Loan
Documents shall be true and correct in all material respects on
and as of the date of such Borrowing or the date of issuance,
amendment, extension or renewal of such Letter of Credit, in each
case before and after giving effect thereto, except for those
representations and warranties made as of a specific date;
(c) since the date of the audited financial statements of the
Borrower described in Section 4.4, there shall have been no
change which has had or could reasonably be expected to have a
Material Adverse Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably
request, all in form and substance reasonably satisfactory to the
Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension
or renewal of any Letter of Credit shall be deemed to constitute
a representation and warranty by the Borrower on the date thereof
as to the matters specified in paragraphs (a), (b) and (c) of
this Section 3.2.
Section 3.3. Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers
referred to in this Article III, unless otherwise specified,
shall be delivered to the Administrative Agent for the account of
each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in
form and substance satisfactory in all respects to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the
Administrative Agent and each Lender as follows:
Section 4.1. Existence; Power. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good
standing as a corporation under the laws of the jurisdiction of
its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a
failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The
execution, delivery and performance by Borrower of the Loan
Documents to which it is a party are within Borrower's
organizational powers and have been duly authorized by all
necessary organizational, and if required, stockholder, action.
This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document, when
executed and delivered by Borrower, will constitute, valid and
binding obligations of the Borrower, enforceable against it in
accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
Section 4.3. Governmental Approvals; No Conflicts. The
execution, delivery and performance by the Borrower of this
Agreement and the other Loan Documents to which it is a party (a)
do not require any consent or approval of, registration or filing
with, or any action by, any Governmental Authority, except those
as have been obtained or made and are in full force and effect
(b) will not violate any Requirements of Law applicable to the
Borrower or any of its Subsidiaries or any judgment, order or
ruling of any Governmental Authority, (c) will not violate or
result in a default under any indenture, material agreement or
other material instrument binding on the Borrower or any of its
Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or
any of its Subsidiaries including, without limitation, the
Prudential Agreement and any Receivables Financing and (d) will
not result in the creation or imposition of any Lien on any asset
of the Borrower or any of its Subsidiaries.
Section 4.4. Financial Statements. The Borrower has furnished
to each Lender (i) the audited restated consolidated balance
sheet of the Borrower and its Subsidiaries as of December 31,
2004 and the related restated consolidated statements of income,
shareholders' equity and cash flows for the Fiscal Year then
ended audited by Ernst & Young LLP and (ii) the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries
as of June 30, 2005, and the related unaudited consolidated
statements of income and cash flows for the Fiscal Quarter and
year to date period then ending, certified by a Responsible
Officer. Such financial statements fairly present the
consolidated financial condition of the Borrower and its
Subsidiaries as of such dates and the consolidated results of op
erations for such periods in conformity with GAAP consistently
applied, subject to year end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause
(ii). Since December 31, 2004 there have been no changes with
respect to the Borrower and its Subsidiaries which have had or
could reasonably be expected to have, singly or in the aggregate,
a Material Adverse Effect.
Section 4.5. Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to
the knowledge of the Borrower, threatened against or affecting
the Borrower or any of its Subsidiaries (i) as to which there is
a reasonable possibility of an adverse determination that could
reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect or (ii) that in any manner
draws into question the validity or enforceability of this
Agreement or any other Loan Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows
of any basis for any Environmental Liability.
Section 4.6. Compliance with Laws and Agreements. The Borrower
and each Subsidiary is in compliance with (a) all Requirements of
Law and all judgments, decrees and orders of any Governmental
Authority, and (b) all indentures, agreements or other
instruments binding upon it or its properties, except where non-
compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
Section 4.7. Investment Company Act, Etc. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" or is
"controlled" by an "investment company", as such terms are
defined in, or subject to regulation under, the Investment
Company Act of 1940, as amended, (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject
to any other regulatory scheme limiting its ability to incur debt
or requiring any approval or consent from or registration or
filing with any Governmental Authority in connection therewith.
Section 4.8. Taxes. The Borrower and its Subsidiaries and each
other Person for whose taxes the Borrower or any Subsidiary could
become liable have timely filed or caused to be filed all Federal
income tax returns and all other material tax returns that are re
quired to be filed by them, and have paid all taxes shown to be
due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental
Authority, except (i) to the extent the failure to do so would
not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the
case may be, has set aside on its books adequate reserves in
accordance with GAAP. As of the Closing Date, the charges,
accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of such taxes are adequate, and no tax
liabilities that could be materially in excess of the amount so
provided are anticipated.
Section 4.9. Margin Regulations. None of the proceeds of any
of the Loans or Letters of Credit will be used, directly or
indirectly, for "purchasing" or "carrying" any "margin stock"
with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or
for any purpose that violates the provisions of the Regulation U.
Neither the Borrower nor its Subsidiaries is engaged principally,
or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying
"margin stock."
Section 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Standards No. 87) did
not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $7,500,000 the fair
market value of the assets of such Plan, and the present value of
all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of
Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by
more than $7,500,000 the fair market value of the assets of all
such underfunded Plans.
Section 4.11. Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title to,
or valid leasehold interests in, all of its real and personal
property material to the operation of its business, free and
clear of any Liens except Permitted Encumbrances.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents,
trademarks, service marks, tradenames, copyrights, franchises,
licenses, and other intellectual property material to its
business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person,
except for any such infringements that, individually or in the
aggregate, would not have a Material Adverse Effect.
Section 4.12. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments, and corporate or other
restrictions to which the Borrower or any of its Subsidiaries is
subject, and all other matters known to any of them, that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation
all reports that the Borrower is required to file with the
Securities and Exchange Commission), financial statements,
certificates or other information furnished by or on behalf of
the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement
or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by any other information so
furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein,
taken as a whole, in light of the circumstances under which they
were made, not misleading;
Section 4.13. Labor Relations. There are no strikes, lockouts
or other material labor disputes or grievances against the
Borrower or any of its Subsidiaries, or, to the Borrower's
knowledge, threatened against or affecting the Borrower or any of
its Subsidiaries, and no significant unfair labor practice,
charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrower's knowledge, threatened
against any of them before any Governmental Authority. All
payments due from the Borrower or any of its Subsidiaries
pursuant to the provisions of any collective bargaining agreement
have been paid or accrued as a liability on the books of the
Borrower or any such Subsidiary, except where the failure to do
so could not reasonably be expected to have a Material Adverse
Effect.
Section 4.14. Subsidiaries. Schedule 4.14 sets forth the name
of, the ownership interest of the Borrower in, the jurisdiction
of organization of, and the type of, each Subsidiary, as of the
Closing Date.
Section 4.15. Insolvency. After giving effect to the execution
and delivery of the Loan Documents, the making of the Loans under
this Agreement, and the repayment of any Indebtedness outstanding
under the Existing Credit Agreement, the Borrower will not be
"insolvent," within the meaning of such term as defined in 101
of Title 11 of the United States Code, as amended from time to
time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in
any business or transaction, whether current or contemplated.
Section 4.16. OFAC. Neither the Borrower nor any of its
Subsidiaries (i) is a person whose property or interest in
property is blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii)
engages in any dealings or transactions prohibited by Section 2
of such executive order, or is otherwise associated with any such
person in any manner violative of Section 2, or (iii) is a person
on the list of Specially Designated Nationals and Blocked Persons
or subject to the limitations or prohibitions under any other
U.S. Department of Treasury's Office of Foreign Assets Control
regulation or executive order.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any
Lender has a Commitment hereunder or the principal of and
interest on any Loan or any fee or any LC Disbursement remains
unpaid or any Letter of Credit remains outstanding:
Section 5.1. Financial Statements and Other Information. The
Borrower will deliver to the Administrative Agent and each
Lender:
(a) as soon as available and in any event within 90 days after
the end of each Fiscal Year, a copy of the annual audited report
for such Fiscal Year for the Borrower and its Subsidiaries,
containing a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and the related
consolidated statements of income, stockholders' equity and cash
flows (together with all footnotes thereto) of the Borrower and
its Subsidiaries for such Fiscal Year, setting forth in the case
of the consolidated statements in comparative form the figures
for the previous Fiscal Year, all in reasonable detail and
reported on by Ernst & Young LLP or other independent public
accountants of nationally recognized standing or otherwise
acceptable to the Administrative Agent (without a "going concern"
or like qualification, exception or explanation and without any
qualification or exception as to scope of such audit) to the
effect that such financial statements present fairly in all
material respects the financial condition and the results of
operations of the Borrower and its Subsidiaries for such Fiscal
Year on a consolidated basis in accordance with GAAP and that the
examination by such accountants in connection with such xxxxxxx
dated financial statements has been made in accordance with
generally accepted auditing standards; provided, however, that
no Default or Event of Default will arise hereunder as a result
of the restatement of any financial statements to the extent that
(x) such restatement does not cause a material change to any of
the prior period financial statements, (y) is not the result of
fraud or malfeasance by the Borrower or its Subsidiaries and (z)
after giving effect to such restatement, the Borrower is in
compliance with Article VI for the periods so restated and no
other Default or Event of Default hereunder would result;
(b) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters, an unaudited
consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such Fiscal Quarter and the related unaudited
consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for such Fiscal Quarter and the then elapsed
portion of such Fiscal Year, setting forth in each case in
comparative form the figures for the corresponding quarter and
the corresponding portion of Borrower's previous Fiscal Year, all
certified by the chief financial officer or treasurer of the
Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of
footnotes; provided, however, that no Default or Event of Default
will arise hereunder as a result of the restatement of any
financial statements to the extent that (x) such restatement does
not cause a material change to any of the prior period financial
statements, (y) is not the result of fraud or malfeasance by the
Borrower or its Subsidiaries and (z) after giving effect to such
restatement, the Borrower is in compliance with Article VI for
the periods so restated and no other Default or Event of Default
hereunder would result;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or treasurer of the Borrower,
(i) certifying as to whether there exists a Default or Event of
Default on the date of such certificate, and if a Default or an
Event of Default then exists, specifying the details thereof and
the action which the Borrower has taken or proposes to take with
respect thereto, (ii) setting forth in reasonable detail
calculations demonstrating compliance with Article VI and (iii)
stating whether any change in GAAP or the application thereof has
occurred since the date of the Borrower's audited financial
statements referred to in Section 4.4 and, if any change has
occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting
firm that reported on such financial statements stating whether
they obtained any knowledge during the course of their
examination of such financial statements of any Default or Event
of Default (which certificate may be limited to the extent
required by accounting rules or guidelines); provided that such
accounting firm shall not be liable to any Person if it did not
obtain such knowledge which would not be disclosed in the course
of an audit conducted under GAAP;
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other
materials filed with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all functions of
said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the
case may be; provided, however, that to the extent that the
Lenders may register on the Borrower's website to receive email
alerts when the foregoing are available, the Borrower has
satisfied its obligation to deliver such reports, proxy
statements and other materials; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs
and financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.
Section 5.2. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the occurrence of any Default or Event of Default or any
change in Fiscal Year;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or,
to the knowledge of the Borrower, affecting the Borrower or any
Subsidiary which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails to comply
with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any
Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for
any Environmental Liability and in each of the preceding clauses,
which individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably
be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $7,500,000;
(e) the occurrence of any default or event of default, or the
receipt by Borrower or any of its Subsidiaries of any written
notice of an alleged default or event of default, respect of any
Material Indebtedness of the Borrower or any of its Subsidiaries;
and
(f) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.2 shall be
accompanied by a written statement of a Responsible Officer
setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with
respect thereto.
Section 5.3. Existence; Conduct of Business. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to
be done all things necessary to preserve, renew and maintain in
full force and effect its legal existence and its respective
material rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the
conduct of its business and will continue to engage in the same
business as presently conducted or such other businesses that are
reasonably related thereto; provided, that nothing in this
Section 5.3 shall prohibit any merger, consolidation, liquidation
or dissolution permitted under Section 7.3.
Section 5.4. Compliance with Laws, Etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws,
rules, regulations and requirements of any Governmental Authority
applicable to its business and properties, including without
limitation, all Environmental Laws, ERISA and OSHA, except where
the failure to do so, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.5. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay and discharge at or
before maturity, all of its obligations and liabilities
(including without limitation all tax liabilities and claims that
could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.6. Books and Records. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries shall be made
of all dealings and transactions in relation to its business and
activities to the extent necessary to prepare the consolidated
financial statements of Borrower in conformity with GAAP.
Section 5.7. Visitation, Inspection, Etc. The Borrower will,
and will cause each of its Subsidiaries to, permit any
representative of the Administrative Agent or any Lender, to
visit and inspect its properties, to examine its books and
records and to make copies and take extracts therefrom, and to
discuss its affairs, finances and accounts with any of its
officers and with its independent certified public accountants,
at the Administrative Agent's or Lenders' expense if no Event of
Default has occurred and is continuing and otherwise at the
expense of the Borrower, all at such reasonable times and as of
ten as the Administrative Agent or any Lender may reasonably
request after reasonable prior notice to the Borrower; provided,
however, if an Event of Default has occurred and is continuing,
no prior notice shall be required.
Section 5.8. Maintenance of Properties; Insurance. The
Borrower will, and will cause each of its Subsidiaries to, (a)
keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and
tear excepted, except where the failure to do so, either
individually or it the aggregate, could not reasonably be
expected to result in a Material Adverse Effect and (b) maintain
with financially sound and reputable insurance companies,
insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in
the same or similar businesses operating in the same or similar
locations.
Section 5.9. Use of Proceeds and Letters of Credit. The
Borrower will use the proceeds of all Loans to refinance
Indebtedness under the Existing Credit Agreement on the Closing
Date and thereafter to finance working capital needs, capital
expenditures and for other general corporate purposes of the
Borrower and its Subsidiaries. No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of
Governors of the Federal Reserve System, including Regulations T,
U or X. All Letters of Credit will be used for general corporate
purposes.
Section 5.10. Subsidiary Dividends. No later than 60 days
following the end of each Fiscal Quarter, the Borrower shall
cause each of its Subsidiaries, other than Credit Services, to
pay a cash dividend to Borrower in an amount equal to at least
75% of its net income for such Fiscal Quarter.
Section 5.11. Post-Closing. No later than 10 days after the
Closing Date, (i) the Borrower shall deliver a tax clearance
certificate from the State of Alabama with respect to the
Borrower, certifying that all taxes due and payable by the
Borrower in the State of Alabama have been paid, and (ii) if any
such taxes were not paid as of the Closing Date but were
subsequently paid, the Borrower shall reaffirm its obligations
hereunder and under the Loan Documents pursuant to documentation
acceptable to the Administrative Agent.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any
Lender has a Commitment hereunder or the principal of or interest
on or any Loan remains unpaid or any fee or any LC Disbursement
remains unpaid or any Letter of Credit remains outstanding:
Section 6.1. Fixed Charge Coverage Ratio. The Borrower and its
Subsidiaries shall maintain on a consolidated basis, as of the
end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending September 30, 2005, a Fixed Charge Coverage Ratio of not
less than 1.50:1.00.
Section 6.2. Total Adjusted Debt to Total Capital. The Borrower
and its Subsidiaries shall maintain at all times on a
consolidated basis a ratio of Consolidated Total Adjusted Debt to
Consolidated Total Capital of not more than 0.65:1.0.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any
Lender has a Commitment hereunder or the principal of or interest
on any Loan remains unpaid or any fee or any LC Disbursement
remains unpaid or any Letter of Credit remains outstanding:
Section 7.1. Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof;
(c) Indebtedness of the Borrower incurred to finance the
acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness
assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition
thereof; provided, that such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvements or extensions, renewals, and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the
maturity or the weighted average life thereof; provided further,
that the aggregate principal amount of such Indebtedness does not
exceed $25,000,000 at any time outstanding;
(d) Guarantees by the Borrower of Indebtedness of Credit
Services permitted hereunder and by any Subsidiary of
Indebtedness the Borrower or of Credit Services permitted
hereunder;
(e) Indebtedness of Credit Services arising under the Credit
Services Credit Agreement and Guarantees by Borrower and its
other Subsidiaries of such Indebtedness;
(f) Hedging Obligations permitted by Section 7.10;
(g) Indebtedness of the Borrower and Credit Services arising
under Receivables Financings, provided, that at the time any such
Receivables Financing is entered into, (x) no Default or Event of
Default has occurred and is continuing, (y) after giving pro
forma effect to such Receivables Financing, the Borrower is in
compliance with the financial covenants set forth in Article VI
and (z) the Borrower has delivered a certificate to the Lenders
certifying the conditions set forth in clauses (x) and (y) and
setting forth in reasonable detail calculations demonstrating pro
forma compliance with the financial covenants set forth in
Article VI;
(h) Indebtedness of a Variable Interest Entity incurred after
the Closing Date, and any corresponding Variable Interest Entity
Obligation related thereto, or any Synthetic Lease Obligation of
the Borrower; provided that (i) at the time any such
Indebtedness, Variable Interest Entity Obligation or Synthetic
Lease Obligation is incurred, (x) no Default or Event of Default
has occurred and is continuing, (y) after giving pro forma effect
thereto, the Borrower is in compliance with the financial
covenants set forth in Article VI and (z) the Borrower has
delivered a certificate to the Lenders certifying the conditions
set forth in clauses (x) and (y) and setting forth in reasonable
detail calculations demonstrating pro forma compliance with the
financial covenants set forth in Article VI and (ii) the
aggregate amount of all such Indebtedness of Variable Interest
Entities and all such Synthetic Lease Obligations of the Borrower
(excluding any Synthetic Lease Obligations that are also Variable
Interest Entity Obligations) incurred after the Closing Date does
not exceed $20,000,000 at any one time;
(i) Indebtedness of the Borrower incurred in connection with the
financing of any fixed or capital assets owned by the Borrower as
of the Closing Date, including Capital Lease Obligations, secured
by a Lien on any such assets owned by the Borrower so financed;
provided, that any extensions, renewals, and replacements of any
such Indebtedness do not increase the outstanding principal
amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof; provided further, that the
aggregate principal amount of such Indebtedness does not exceed
$25,000,000 at any time outstanding;
(j) other Indebtedness of the Borrower incurred after the
Closing Date in an aggregate principal amount not to exceed at
any time 25% of Consolidated Net Worth as of the last day of the
immediately preceding Fiscal Year for which audited financial
statements have been delivered to the Lenders;
(k) Indebtedness of the Borrower owing to any Subsidiary
permitted by Section 7.4(d) and of any Subsidiary owing to the
Borrower; and
(l) Indebtedness of Credit Services in the amount not to exceed,
at any one time outstanding, $5,000,000; provided, however, that
no more than $2,000,000 of any such indebtedness shall be secured
Indebtedness.
Section 7.2. Negative Pledge. The Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien on any of its assets or property now
owned or hereafter acquired or, except:
(a) Liens created in favor of the Administrative Agent for the
benefit of the Lenders pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule
7.2; provided, that such Lien shall not apply to any other
property or asset of the Borrower or any Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets
to secure the purchase price or the cost of construction or
improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of such fixed or capital
assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by
Section 7.1(c), (ii) such Lien attaches to such asset
concurrently or within 90 days after the acquisition, improvement
or completion of the construction thereof; (iii) such Lien does
not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or
improving such fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower, (ii) existing
on any asset of any Person at the time such Person is merged with
or into the Borrower or any Subsidiary of the Borrower or (iii)
existing on any asset prior to the acquisition thereof by the
Borrower or any Subsidiary of the Borrower; provided, that any
such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which
it secures on the date that such Person becomes a Subsidiary or
the date of such merger or the date of such acquisition;
(f) Liens incurred in connection with a Receivables Financing,
Variable Interest Entity Obligations and Synthetic Lease
Obligations permitted under Section 7.1;
(g) Liens upon or in any fixed or capital assets to secure the
purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely
for the purpose of financing the acquisition, construction or
improvement of such fixed or capital assets (including Liens
securing any Capital Lease Obligations); provided, that (i) such
Lien secures Indebtedness permitted by Section 7.1(j), (ii) such
Lien does not extend to any other asset, and (iii) the
Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital
assets;
(h) Liens securing Indebtedness of the Borrower permitted by
Section 7.1(j) to the extent that the aggregate principal amount
of such Indebtedness so secured does not exceed at any time 10%
of Consolidated Net Worth as of the last day of the immediately
preceding Fiscal Year for which audited financial statements have
been delivered to the Lenders;
(i) extensions, renewals, or replacements of any Lien referred
to in paragraphs (a) through (f) of this Section 7.2; provided,
that the principal amount of the Indebtedness secured thereby is
not increased and that any such extension, renewal or replacement
is limited to the assets originally encumbered thereby.
Section 7.3. Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate into any other Person, or permit
any other Person to merge into or consolidate with it, or sell,
lease, transfer or otherwise dispose of (in a single transaction
or a series of transactions) all or substantially all of its
assets (in each case, whether now owned or hereafter acquired) or
all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing (i) the Borrower or
any Subsidiary may merge with a Person if the Borrower (or such
Subsidiary if the Borrower is not a party to such merger) is the
surviving Person, (ii) any Subsidiary may merge into another
Subsidiary and (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of all or substantially all of its assets to
the Borrower; provided, that any such merger involving a Person
that is not a wholly-owned Subsidiary immediately prior to such
merger shall not be permitted unless also permitted by
Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of
the type conducted by the Borrower and its Subsidiaries on the
date hereof and businesses reasonably related thereto.
Section 7.4. Investments, Loans, Etc. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that
was not a wholly-owned Subsidiary prior to such merger), any
capital stock, evidence of Indebtedness or other securities
(including any option, warrant, or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances
to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person (all of the
foregoing being collectively called "Investments"), or purchase
or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary, except:
(a) Investments existing on the date hereof and set forth on
Schedule 7.4 (excluding Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section
7.1;
(d) (A) Investments made by the Borrower in or to Credit
Services so long as (i) at least 98% of the Total Assets of
Credit Services, are (x) accounts receivable purchased from or
originated through the Borrower's retail sales of home
furnishings in the United States or (y) current or deferred
income taxes determined in accordance with GAAP and (ii) all
Total Liabilities of Credit Services have arisen solely out its
operations as a consumer finance business, (B) Investments made
by the Borrower in or to Havertys Capital and Havertys Enterprise
for the payment of taxes and (C) Investments made by Credit
Services in or to Borrower;
(e) loans or advances, or Guaranties of loans or advances, to
employees, officers or directors of the Borrower or any
Subsidiary in the ordinary course of business, including, without
limitation, those for travel, relocation and related expenses;
provided, however, that the aggregate amount of all such loans,
advances and Guaranties does not exceed $1,000,000 at any time;
(f) Asset Like Kind Exchanges permitted by Section 7.6;
(g) Hedging Obligations permitted by Section 7.10;
(h) creation of Subsidiaries to the extent that the Borrower is
in compliance with Section 5.10;
(i) Investments made pursuant to the Deferred Compensation Plan;
and
(j) other Investments that in the aggregate do not exceed
$10,000,000 in any Fiscal Year.
Section 7.5. Restricted Payments. The Borrower will not, and
will not permit its Subsidiaries to, declare or make, or agree to
pay or make, directly or indirectly, any dividend or distribution
on any class of its stock, or make any payment on account of, or
set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition
of, any shares of capital stock or Indebtedness subordinated to
the Obligations of the Borrower or any options, warrants, or
other rights to purchase such capital stock or such Indebtedness,
whether now or hereafter outstanding (each, a "Restricted
Payment"), except for (i) dividends and distributions payable by
the Borrower solely in shares of any class of its common stock,
(ii) Restricted Payments made by any Subsidiary to the Borrower
or to another Subsidiary, on at least a pro rata basis with any
other shareholders if such Subsidiary is not wholly owned by the
Borrower and other wholly owned Subsidiaries and (iii) cash
dividends paid on, and cash redemptions of, the common stock of
the Borrower so long as (x) no Default or Event of Default has
occurred and is continuing at the time such dividend is paid or
redemption is made, and (y) the aggregate amount of all such
Restricted Payments made by the Borrower in any Fiscal Year
(including without limitation the full Fiscal Year 2005) does not
exceed 50% of Consolidated Net Income (if greater than $0) earned
during the immediately preceding fiscal year; provided, further,
that in the event that such Restricted Payments actually paid in
any Fiscal Year are less than the maximum amount permitted in
such year, the unused permitted amount for such Fiscal Year may
be carried forward two (but no more than two) Fiscal Years to the
immediately following two Fiscal Years.
Section 7.6. Sale of Assets. The Borrower will not, and will
not permit any of its Subsidiaries to, convey, sell, lease,
assign, transfer or otherwise dispose of, any of its assets,
business or property, whether now owned or hereafter acquired,
or, in the case of any Subsidiary, issue or sell any shares of
such Subsidiary's common stock to any Person other than the
Borrower (or to qualify directors if required by applicable law),
except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for
operations disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business;
(c) Permitted Receivables Sales under Receivables Financings
permitted under Section 7.1;
(d) the sale or other disposition for fair market value of the
distribution centers and other land held for development listed
on Schedule 7.6;
(e) the sale of real estate in connection with any Asset Like
Kind Exchange; provided, that at the time any such Asset Like
Kind Exchange is entered into, (a) no Default or Event of Default
has occurred and is continuing, (b) after giving pro forma effect
to such Asset Like Kind Exchange, the Borrower is in compliance
with the financial covenants set forth in Article VI and (c) the
Borrower has delivered a certificate to the Lenders certifying
the conditions set forth in clauses (a) and (b) and setting forth
in reasonable detail calculations demonstrating pro forma
compliance with the financial covenants set forth in Article VI;
(f) the sale of assets in Sale/Leaseback Transactions permitted
under Section 7.9; and
(g) the sale or other disposition of other assets of the
Borrower in an aggregate amount in any Fiscal Year not to exceed
10% of the consolidated total assets of the Borrower as of the
last day of the immediately prior Fiscal Year.
Section 7.7. Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease
or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-
length basis from unrelated third parties, (b) transactions
between or among the Borrower and its wholly-owned Subsidiaries
not involving any other Affiliates and (c) any Restricted Payment
permitted by Section 7.5.
Section 7.8. Restrictive Agreements. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly,
enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now
owned or hereafter acquired, or (b) the ability of any Subsidiary
to pay dividends or other distributions with respect to its
common stock, to make or repay loans or advances to the Borrower
or any other Subsidiary, to Guarantee Indebtedness of the
Borrower or any other Subsidiary or to transfer any of its prop
erty or assets to the Borrower or any Subsidiary of the Borrower;
provided, that (i) the foregoing shall not apply to restrictions
or conditions imposed by law, by this Agreement, the Credit
Services Credit Agreement, or the Prudential Agreement, or by
Synthetic Leases and agreements governing Variable Interest
Entity Obligations existing on the Closing Date or entered into
after the Closing Date on substantially similar terms as those
existing on the Closing Date, and (ii) clause (a) shall not apply
to restrictions or conditions imposed by any agreement relating
to secured Indebtedness permitted by this Agreement if such
restrictions and conditions apply only to the property or assets
securing such Indebtedness and (iii) clause (a) shall not apply
to customary provisions in leases and other contracts restricting
the assignment thereof.
Section 7.9. Sale and Leaseback Transactions. The Borrower
will not, and will not permit any of the Subsidiaries to, enter
into any arrangement, directly or indirectly, whereby it shall
sell or transfer any property, real or personal, used or useful
in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as
the property sold or transferred (each, a "Sale/Leaseback
Transaction"), unless at the time such Sale/Leaseback Transaction
is entered into (a) no Default or Event of Default has occurred
and is continuing, (b) after giving pro forma effect to such
Sale/ Leaseback Transaction, the Borrower is in compliance with
the financial covenants set forth in Article VI and (c) the
Borrower has delivered a certificate to the Lenders certifying
the conditions set forth in clauses (a) and (b) and setting forth
in reasonable detail calculations demonstrating pro forma
compliance with the financial covenants set forth in Article VI.
Section 7.10. Hedging Transactions. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any
Hedging Transaction, other than Hedging Transactions entered into
in the ordinary course of business to hedge or mitigate risks to
which the Borrower or any Subsidiaries is exposed in the conduct
of its business or the management of its liabilities. Solely for
the avoidance of doubt, the Borrower acknowledges that a Hedging
Transaction entered into for speculative purposes or of a
speculative nature (which shall be deemed to include any Hedging
Transaction under which the Borrower or any of its Subsidiaries
is or may become obliged to make any payment (i) in connection
with the purchase by any third party of any capital stock or any
Indebtedness or (ii) as a result of changes in the market value
of any capital stock or any Indebtedness) is not a Hedging
Obligations entered into in the ordinary course of business to
hedge or mitigate risks.
Section 7.11. Amendment to Charter Documents. The Borrower will
not, and will not permit any Subsidiary to, amend, modify or
waive any of its rights in a manner materially adverse to the
Lenders under its certificate of incorporation, bylaws or other
organizational documents.
Section 7.12. Accounting Changes; Fiscal Year. Without the
prior written consent of the Required Lenders, which consent
shall not be unreasonably withheld, the Borrower will not, and
will not permit any Subsidiary to, (a) make any significant
change in accounting treatment or reporting practices, except as
required or permitted by GAAP, or (b) change the Fiscal Year of
the Borrower or of any Subsidiary, except (i) to change the
fiscal year of a Subsidiary to conform its Fiscal Year to that of
the Borrower or (ii) to change the Fiscal Year of the Borrower to
end on the Saturday or Sunday closest to December 31.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1. Events of Default. If any of the following events
(each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or
of any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment or otherwise;
or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount payable under
clause (a) of this Section 8.1) payable under this Agreement or
any other Loan Document, when and as the same shall become due
and payable, and such failure shall continue unremedied for a
period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any other Loan Document (including the Sched
ules attached thereto) and any amendments or modifications hereof
or waivers hereunder, or in any certificate, report, financial
statement or other document submitted to the Administrative Agent
or the Lenders by the Borrower or any representative of the
Borrower pursuant to or in connection with this Agreement or any
other Loan Document shall prove to be incorrect in any material
respect when made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant
or agreement contained in Sections 5.1, 5.2, 5.3, (with respect
to the Borrower's existence), 5.7, 5.9 or 5.10 or Articles VI or
VII; or
(e) the Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those
referred to in clauses (a), (b) and (d) above) or any other Loan
Document, and such failure shall remain unremedied for 30 days
after the earlier of (i) any officer of the Borrower becomes
aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender;
or
(f) the Borrower or any Subsidiary (whether as primary obligor
or as guarantor or other surety) shall fail to pay any principal
of or premium or interest on any Material Indebtedness that is
outstanding, when and as the same shall become due and payable
(whether at scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in
the agreement or instrument evidencing or governing such
Indebtedness; or any other event shall occur or condition shall
exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable; or required
to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the stated
maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal,
state or foreign bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii)
consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in
clause (i) of this Section 8.1, (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Subsidiary or
for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the
benefit of creditors, or (vi) take any action for the purpose of
effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets,
under any federal, state or foreign bankruptcy, insolvency or
other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any Subsidiary or for
a substantial part of its assets, and in any such case, such
proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the
foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay,
shall admit in writing its inability to pay, or shall fail to
pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with other ERISA Events
that have occurred, could reasonably be expected to result in
liability to the Borrower and the Subsidiaries in an aggregate
amount exceeding $10,000,000; or
(k) any judgment or order for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against the
Borrower or any Subsidiary, and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be a period of
30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against
the Borrower or any Subsidiary that could reasonably be expected
to have a Material Adverse Effect, and there shall be a period
of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(m) a Change in Control shall occur or exist;
(n) an Event of Default shall occur under any other Loan
Document; or
(o) an "Event of Default" shall occur under the Credit Services
Credit Agreement or the Prudential Agreement;
then, and in every such event (other than an event with respect
to the Borrower described in clause (g) or (h) of this Section
8.1) and at any time thereafter during the continuance of such
event, the Administrative Agent may, and upon the written request
of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment
of each Lender shall terminate immediately; (ii) declare the
principal of and any accrued interest on the Loans, and all other
Obligations owing hereunder other than Hedging Obligations, to
be, whereupon the same shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; (iii) demand that
cash collateral be deposited with the Administrative Agent
pursuant to Section 2.23(g), without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by
the Borrower; (iv) exercise all remedies contained in any other
Loan Document; and (v) exercise any other remedies available at
law or in equity; and that, if an Event of Default specified in
either clause (g) or (h) shall occur, the Commitments shall
automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all
fees, and all other Obligations other than Hedging Obligations
shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1. Appointment of Administrative Agent. (a) Each
Lender irrevocably appoints SunTrust Bank as the Administrative
Agent and authorizes it to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent
under this Agreement and the other Loan Documents, together with
all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties
hereunder or under the other Loan Documents by or through any one
or more sub-agents or attorneys-in-fact appointed by the
Administrative Agent. The Administrative Agent and any such sub-
agent or attorney-in-fact may perform any and all of its duties
and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions set forth in this
Article shall apply to any such sub-agent or attorney-in-fact and
the Related Parties of the Administrative Agent, any such sub-
agent and any such attorney-in-fact and shall apply to their
respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as
Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as
the Administrative Agent may agree at the request of the Required
Lenders to act for the Issuing Bank with respect thereto;
provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this
Article IX with respect to any acts taken or omissions suffered
by the Issuing Bank in connection with Letters of Credit issued
by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of
Credit as fully as the term "Administrative Agent" as used in
this Article IX included the Issuing Bank with respect to such
acts or omissions and (ii) as additionally provided in this
Agreement with respect to the Issuing Bank.
Section 9.2. Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations
except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2), and (c) except as
expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiaries that is communicated to
or obtained by the Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it, its sub-agents or attorneys-
in-fact with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section
10.2) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall not be responsible
for the negligence or misconduct of any sub-agents or attorneys-
in-fact selected by it with reasonable care. The Administrative
Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which
notice shall include an express reference to such event being a
"Default" or "Event of Default" hereunder) is given to the
Administrative Agent by the Borrower or any Lender, and the
Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in
any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent. The
Administrative Agent may consult with legal counsel (including
counsel for the Borrower) concerning all matters pertaining to
such duties.
Section 9.3. Lack of Reliance on the Administrative Agent.
Each of the Lenders, the Swingline Lender and the Issuing Bank
acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each of the Lenders, the Swingline Lender and the Issuing Bank
also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not
taking of any action under or based on this Agreement, any
related agreement or any document furnished hereunder or
thereunder.
Section 9.4. Certain Rights of the Administrative Agent. If
the Administrative Agent shall request instructions from the
Required Lenders with respect to any action or actions (including
the failure to act) in connection with this Agreement, the
Administrative Agent shall be entitled to refrain from such act
or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent
shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have
any right of action whatsoever against the Administrative Agent
as a result of the Administrative Agent acting or refraining from
acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may
also rely upon any statement made to it orally or by telephone
and believed by it to be made by the proper Person and shall not
incur any liability for relying thereon. The Administrative Agent
may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
not taken by it in accordance with the advice of such counsel,
accountants or experts.
Section 9.6. The Administrative Agent in its Individual
Capacity. The bank serving as the Administrative Agent shall
have the same rights and powers under this Agreement and any
other Loan Document in its capacity as a Lender as any other
Lender and may exercise or refrain from exercising the same as
though it were not the Administrative Agent; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar
terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The
bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate
of the Borrower as if it were not the Administrative Agent
hereunder.
Section 9.7. Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent, subject to the approval by the
Borrower provided that no Default or Event of Default shall exist
at such time. If no successor Administrative Agent shall have
been so appointed, and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives
notice of resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Bank, appoint a
successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any
state thereof or a bank which maintains an office in the United
States, having a combined capital and surplus of at least
$500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, 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 under this
Agreement and the other Loan Documents. If within 45 days after
written notice is given of the retiring Administrative Agent's
resignation under this Section 9.7 no successor Administrative
Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii)
the retiring Administrative Agent shall thereupon be discharged
from its duties and obligations under the Loan Documents and
(iii) the Required Lenders shall thereafter perform all duties of
the retiring Administrative Agent under the Loan Documents until
such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring
Administrative Agent's resignation hereunder, the provisions of
this Article IX shall continue in effect for the benefit of such
retiring Administrative Agent and its representatives and agents
in respect of any actions taken or not taken by any of them while
it was serving as the Administrative Agent.
Section 9.8. Authorization to Execute other Loan Documents.
Each Lender hereby authorizes the Administrative Agent to execute
on behalf of all Lenders all Loan Documents other than this
Agreement.
Section 9.9. Co-Documentation Agents and Syndication Agent.
Each Lender hereby designates Wachovia Bank, National
Association, as Syndication Agent, and Bank of America, N.A. and
Regions Bank, as Co-Documentation Agents and agrees that the Co-
Documentation Agents and the Syndication Agent shall have no
duties or obligations under any Loan Documents to any Lender or
the Borrower.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and
other communications to any party herein to be effective shall be
in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Xxxxxxx Furniture Companies, Inc
000 Xxxxxxx Xxxxx Xx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopy Number: (000) 000-0000
To the Administrative Agent
or Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Telecopy Number: 000-000-0000
With a copy to: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X./0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopy Number: (000) 000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx, N.E./Mail Code 3706
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopy Number: (000) 000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other
parties hereto. All such notices and other communications shall,
when transmitted by overnight delivery, or faxed, be effective
when delivered for overnight (next-day) delivery, or transmitted
in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the
mail or if delivered, upon delivery; provided, that notices
delivered to the Administrative Agent, the Issuing Bank or the
Swingline Lender shall not be effective until actually received
by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower.
The Administrative Agent and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to
the Borrower or other Person on account of any action taken or
not taken by the Administrative Agent or the Lenders in reliance
upon such telephonic or facsimile notice. The obligation of the
Borrower to repay the Loans and all other Obligations hereunder
shall not be affected in any way or to any extent by any failure
of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt
by the Administrative Agent and the Lenders of a confirmation
which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in any such
telephonic or facsimile notice.
Section 10.2. Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder or
any other Loan Document, and no course of dealing between the
Borrower and the Administrative Agent or any Lender, shall oper
ate as a waiver thereof, nor shall any single or partial exercise
of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or
power hereunder or thereunder. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder
and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or
consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by
paragraph (b) of this Section 10.2, and then such waiver or
consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or the issuance of a Letter
of Credit shall not be construed as a waiver of any Default or
Event of Default, regardless of whether the Administrative Agent,
any Lender or the Issuing Bank may have had notice or knowledge
of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or
the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Borrower and the
Required Lenders or the Borrower and the Administrative Agent
with the consent of the Required Lenders and then such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, that no amendment
or waiver shall: (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the
rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal
of, or interest on, any Loan or LC Disbursement or interest
thereon or any fees hereunder or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section
2.21 (b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section 10.2 or
the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders which are
required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, without the
consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement,
without the written consent of each Lender; (vii) release all or
substantially all collateral (if any) securing any of the
Obligations, without the written consent of each Lender; provided
further, that no such agreement shall amend, modify or otherwise
affect the rights, duties or obligations of the Administrative
Agent, the Swingline Lender or the Issuing Bank without the prior
written consent of such Person. Notwithstanding anything
contained herein to the contrary, this Agreement may be amended
and restated without the consent of any Lender (but with the
consent of the Borrower and the Administrative Agent) if, upon
giving effect to such amendment and restatement, such Lender
shall no longer be a party to this Agreement (as so amended and
restated), the Commitments of such Lender shall have terminated
(but such Lender shall continue to be entitled to the benefits of
Sections 2.18, 2.19, 2.20 and 10.3), and such Lender shall have
no other commitment or other obligation hereunder and shall have
been paid in full all principal, interest and other amounts owing
to it or accrued for its account under this Agreement. Any
consent of the Borrower otherwise required hereunder shall not be
required if an Event of Default has occurred and is continuing.
Section 10.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent and its
Affiliates, including the reasonable and actual fees, charges and
disbursements of counsel for the Administrative Agent and its
Affiliates, in connection with the syndication of the credit
facilities provided for herein, the preparation and
administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions
contemplated in this Agreement or any other Loan Document shall
be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all out-of-pocket costs
and expenses (including, without limitation, the reasonable and
actual fees, charges and disbursements of outside counsel and the
allocated cost of inside counsel) incurred by the Administrative
Agent, the Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section 10.3, or in
connection with the Loans made or any Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent (and
any sub-agent thereof), the Issuing Bank and each Lender, and
each Related Party of any of the foregoing (each an "Indemnitee")
against, and hold each of them harmless from, any and all costs
losses, liabilities, claims, damages and related expenses,
including the fees, charges and disbursements of any counsel for
any Indemnitee, which may be incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the
Borrower or any of its Subsidiaries arising out of, in connection
with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any other agreement or
instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or
thereunder or the consummation of any of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit
or any actual or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms
of such Letter of Credit), (iii) any actual or alleged presence
or Release of Hazardous Materials on or from any property owned
or operated by the Borrower or any Subsidiary, or any
Environmental Liability related in any way to the Borrower or any
Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any of its
Subsidiaries, and regardless of whether any Indemnitee is a party
thereto, provided that such indemnification shall not, as to any
Indemnitee, be available to the extent that such costs, losses,
claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee or (y) result from a
claim brought by the Borrower against an Indemnitee for breach in
bad faith of such Indemnitee's obligations hereunder or under any
other Loan Document, if the Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction.
(c) The Borrower shall pay, and hold the Administrative Agent
and each of the Lenders harmless from and against, any and all
present and future stamp, documentary, and other similar taxes
with respect to this Agreement and any other Loan Documents, any
collateral described therein, or any payments due thereunder, and
save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from
any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Issuing Bank
or the Swingline Lender under clauses (a), (b) or (c) hereof,
each Lender severally agrees to pay to the Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be,
such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, that the unreimbursed expense or
indemnified payment, claim, damage, liability or related expense,
as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct
damages) arising out of, in connection with or as a result of,
this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any
Letter of Credit or the use of proceeds thereof.
(f) All amounts due under this Section 10.3 shall be payable
promptly after written demand therefor.
Section 10.4. 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 permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and each Lender, and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder
except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section 10.4, (ii) by way of participation
in accordance with the provisions of paragraph (d) of this
Section 10.4 or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (f) of
this Section 10.4 (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section 10.4 and, to the
extent expressly contemplated hereby, the Related Parties of each
of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it); provided that any such assignment
shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment
and the Loans at the time owing to it or in the case of
an assignment to a Lender, an Affiliate of a Lender or
an Approved Fund, no minimum amount need be assigned;
and
(B) in any case not described in paragraph
(b)(i)(A) of this Section 10.4, the aggregate amount of
the Commitment (which for this purpose includes Loans
and Revolving Credit Exposure outstanding thereunder)
or, if the applicable Commitment is not then in effect,
the principal outstanding balance of the Loans and
Revolving Credit Exposure of the assigning Lender
subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent or,
if "Trade Date" is specified in the Assignment and
Acceptance, as of the Trade Date) shall not be less
than $5,000,000, unless the Administrative Agent and,
so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment
shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this
Agreement with respect to the Loans, Revolving Credit
Exposure or the Commitment assigned.
(iii) Required Consents. No consent shall be required
for any assignment except:
(A) the consent of the Borrower to the extent
required by paragraph (b)(i)(B) of this Section 10.4;
(B) the consent of the Borrower (such consent not
to be unreasonably withheld or delayed) shall be
required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment or (y)
such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund; and
(C) the consent of the Administrative Agent, the
Issuing Bank and the Swingline Lender (such consents
not to be unreasonably withheld or delayed) shall be
required for assignments to a Person that is not a
Lender with a Commitment.
(iv) Assignment and Acceptance. The parties to each
assignment shall deliver to the Administrative Agent (A) a
duly executed Assignment and Acceptance, (B) a processing
and recordation fee of $1,000, (C) an Administrative
Questionnaire unless the assignee is already a Lender and
(D) the documents required under Section 10.4 if such
assignee is a Foreign Lender.
(v) No Assignment to Borrower. No such assignment
shall be made to the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such
assignment shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to paragraph (c) of this Section 10.4, from and
after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance
covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto) but shall continue to be entitled to the benefits of
Sections 2.18, 2.19, 2.20 and 10.3 with respect to facts and
circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section
10.4. If the consent of the Borrower to an assignment is
required hereunder (including a consent to an assignment which
does not meet the minimum assignment thresholds specified above),
the Borrower shall be deemed to have given its consent five
Business Days after the date notice thereof has actually been
delivered by the assigning Lender (through the Administrative
Agent) to the Borrower, unless such consent is expressly refused
by the Borrower prior to such fifth Business Day.
(c) The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its offices in
Atlanta, Georgia a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and
principal amount of the Loans and Revolving Credit Exposure owing
to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or
notice to, the Borrower, the Administrative Agent, the Swingline
Lender or the Issuing Bank sell participations to any Person
(other than a natural person, the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in
all or a portion of such Lender's rights and/or obligations under
this Agreement (including all or a portion of its Commitment
and/or the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the Swingline
Lender, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
(e) Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with
respect to the following to the extent affecting such
Participant: (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or
any fees hereunder or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date for the termination
or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.21(b) or (c)
in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section 10.4 or the
definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders which are required
to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent
of each Lender; (vi) release any guarantor or limit the liability
of any such guarantor under any guaranty agreement without the
written consent of each Lender except to the extent such release
is expressly provided under the terms of the Guaranty Agreement;
or (vii) release all or substantially all collateral (if any)
securing any of the Obligations. Subject to paragraph (e) of
this Section 10.4, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.18, 2.19, and
2.20 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this
Section 10.4.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.18 and Section 2.20 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits
of Section 2.20 unless the Borrower is notified of the
participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section
2.20(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a
party hereto.
Section 10.5. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without
giving effect to the conflict of law principles thereof) of the
State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the non-exclusive jurisdiction of
the United States District Court of the Northern District of
Georgia, and of any state court of the State of Georgia located
in Xxxxxx County and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement
or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such Georgia
state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement
or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against the Borrower or its
properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding described in
paragraph (b) of this Section 10.5 and brought in any court
referred to in paragraph (b) of this Section 10.5. Each of the
parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section
10.1. Nothing in this Agreement or in any other Loan Document
will affect the right of any party hereto to serve process in any
other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 10.6.
Section 10.7. Counterparts; Integration. This Agreement may be
executed by one or more of the parties to this Agreement on any
number of separate counterparts (including by telecopy), and all
of said counterparts taken together shall be deemed to constitute
one and the same instrument. This Agreement, the Fee Letter, the
other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent
constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and
supersede all prior agreements and understandings, oral or
written, regarding such subject matters.
Section 10.8. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in
the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have
been relied upon by the other parties hereto and shall survive
the execution and delivery of this Agreement and the making of
any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.18 2.19 2.20 and 10.3
and Article IX shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof. All representations
and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement
shall survive the execution and delivery of this Agreement and
the other Loan Documents, and the making of the Loans and the
issuance of the Letters of Credit.
Section 10.9. Severability. Any provision of this Agreement or
any other Loan Document held to be illegal, invalid or
unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a
particular provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 10.10. Confidentiality. Each of the Administrative
Agent, the Issuing Bank and each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of any
information designated in writing as confidential and provided to
it by the Borrower or any Subsidiary, except that such
information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender,
including without limitation accountants, legal counsel and other
advisors, (ii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iii) to
the extent requested by any regulatory agency or authority, (iv)
to the extent that such information becomes publicly available
other than as a result of a breach of this Section 10.10, or
which becomes available to the Administrative Agent, the Issuing
Bank, any Lender or any Related Party of any of the foregoing on
a nonconfidential basis from a source other than the Borrower,
(v) in connection with the exercise of any remedy hereunder or
any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, and (ix) subject to provisions
substantially similar to this Section 10.10, to any actual or
prospective assignee or Participant, or (vi) with the consent of
the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this
Section 10.10 shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree
of care to maintain the confidentiality of such information as
such Person would accord its own confidential information.
Section 10.11. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate
applicable to any Loan, together with all fees, charges and other
amounts which may be treated as interest on such Loan under
applicable law (collectively, the "Charges"), shall exceed the
maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender
holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 10.11 shall
be cumulated and the interest and Charges payable to such Lender
in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Rate to the
date of repayment, shall have been received by such Lender.
Section 10.12. Waiver of Effect of Corporate Seal. The Borrower
represents and warrants that it is not required to affix its
corporate seal to this Agreement or any other Loan Document
pursuant to any requirement of law or regulation, and waives any
shortening of the statute of limitations that may result from not
affixing the corporate seal to this Agreement or such other Loan
Documents.
Section 10.13. Waiver Right of Setoff. The Administrative Agent,
the Swingline Lender, the Issuing Bank and each Lender hereby
waives with respect to the Obligations, any contractual or common
law right of setoff against any deposits of the Borrower now or
hereafter held by and other indebtedness or property then or
thereafter owing by such Lender or other holder to the Borrower.
Section 10.14. Patriot Act. The Administrative Agent and each
Lender hereby notifies the Borrower that pursuant to the
requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Patriot Act"), it is
required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or
the Administrative Agent, as applicable, to identify the Borrower
in accordance with the Patriot Act. The Borrower shall, and
shall cause each of its Subsidiaries to, provide to the extent
commercially reasonable, such information and take such other
actions as are reasonably requested by the Administrative Agent
or any Lender in order to assist the Administrative Agent and the
Lenders in maintaining compliance with the Patriot Act.
(remainder of page left intentionally blank)
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 FURNITURE COMPANIES, INC.
By /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
SUNTRUST BANK,
as Administrative Agent, as
Swingline Lender, as Issuing Bank,
and as a Lender
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By /s/ Xxxxxx XxxXxxxxxx
--------------------------------
Name: Xxxxxx XxxXxxxxxx
Title: Director
REGIONS BANK, as a Lender,
as a Lender
By /s/ Xxxxxxx X. Xxx
--------------------------------
Name: Xxxxxxx X. Xxx
Title: Senior Vice President
BRANCH BANKING AND TRUST CO.,
as a Lender
By /s/ Xxxx XxXxxxxxxx
--------------------------------
Name: Xxxx XxXxxxxxxx
Title: Senior Vice President
Schedule I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
Pricing Fixed Charge Applicable Margin Applicable
Level Coverage Ratio for Eurodollar Percentage for
Loans Commitment Fee
--------- --------------- ----------------- --------------
I Less than 1.00% per annum 0.175% per
1.75:1.00 annum
II Less than 0.875% per annum 0.15% per
2.00:1.00 but annum
greater or
equal to
1.75:1.00
III Less than 0.750% per annum 0.125% per
2.25:1:00 but annum
greater or
equal to
2.00:1.00
IV Greater than or 0.625% per annum 0.10% per
equal to annum
2.25:1.00
Schedule II
COMMITMENT AMOUNTS
Lender Commitment Amount
SunTrust Bank $15,000,000
Wachovia Bank, National Association $12,000,000
Bank of America, N.A. $12,000,000
Regions Bank $12,000,000
Branch Banking & Trust Company $9,000,000
