EXHIBIT 10.2
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
dated as of August 26, 2005
among
HAVERTYS CREDIT SERVICES, 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..... 16
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION.......... 16
SECTION 1.4. TERMS GENERALLY............................. 16
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS......... 17
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES........... 17
SECTION 2.2. REVOLVING LOANS............................. 17
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.......... 17
SECTION 2.4. SWINGLINE COMMITMENT........................ 18
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC...... 18
SECTION 2.6. FUNDING OF BORROWINGS....................... 19
SECTION 2.7. INTEREST ELECTIONS.......................... 20
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF
COMMITMENTS............................... 21
SECTION 2.9. REPAYMENT OF LOANS.......................... 21
SECTION 2.10. EVIDENCE OF INDEBTEDNESS.................... 22
SECTION 2.11. OPTIONAL PREPAYMENTS........................ 22
SECTION 2.12. MANDATORY PREPAYMENTS....................... 22
SECTION 2.13. INTEREST ON LOANS........................... 23
SECTION 2.14. FEES........................................ 23
SECTION 2.15. COMPUTATION OF INTEREST AND FEES............ 24
SECTION 2.16. INABILITY TO DETERMINE INTEREST RATES....... 24
SECTION 2.17. ILLEGALITY.................................. 25
SECTION 2.18. INCREASED COSTS............................. 25
SECTION 2.19. FUNDING INDEMNITY........................... 26
SECTION 2.20. TAXES....................................... 26
SECTION 2.21. PAYMENTS GENERALLY; PRO RATA TREATMENT...... 28
SECTION 2.22. MITIGATION OF OBLIGATIONS................... 29
SECTION 2.23. INTENTIONALLY OMITTED....................... 29
SECTION 2.24. INCREASE OF COMMITMENTS; ADDITIONAL LENDERS. 29
ARTICLE III CONDITIONS PRECEDENT TO LOANS............... 31
SECTION 3.1. CONDITIONS TO EFFECTIVENESS................. 31
SECTION 3.2. EACH CREDIT EVENT........................... 33
SECTION 3.3. DELIVERY OF DOCUMENTS....................... 33
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............. 33
SECTION 4.1. EXISTENCE; POWER............................ 33
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION......... 33
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS........ 34
SECTION 4.4. RESERVED.................................... 34
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS........ 34
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS......... 34
SECTION 4.7. INVESTMENT COMPANY ACT, ETC................. 34
SECTION 4.8. TAXES....................................... 35
SECTION 4.9. MARGIN REGULATIONS.......................... 35
SECTION 4.10. ERISA....................................... 35
SECTION 4.11. OWNERSHIP OF PROPERTY....................... 35
SECTION 4.12. DISCLOSURE.................................. 36
SECTION 4.13. LABOR RELATIONS............................. 36
SECTION 4.14. SUBSIDIARIES................................ 36
SECTION 4.15. INSOLVENCY.................................. 36
SECTION 4.16. OFAC........................................ 36
ARTICLE V AFFIRMATIVE COVENANTS....................... 37
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION.. 37
SECTION 5.2. NOTICES OF MATERIAL EVENTS.................. 37
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS.............. 38
SECTION 5.4. COMPLIANCE WITH LAWS, ETC................... 38
SECTION 5.5. PAYMENT OF OBLIGATIONS...................... 38
SECTION 5.6. BOOKS AND RECORDS........................... 38
SECTION 5.7. VISITATION, INSPECTION, ETC................. 38
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE........ 39
SECTION 5.9. USE OF PROCEEDS............................. 39
ARTICLE VI RESERVED.................................... 39
ARTICLE VII NEGATIVE COVENANTS.......................... 39
ARTICLE VIII EVENTS OF DEFAULT........................... 40
SECTION 8.1. EVENTS OF DEFAULT........................... 40
ARTICLE IX THE ADMINISTRATIVE AGENT.................... 42
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT......... 42
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT.... 43
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE
AGENT.................................... 43
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT.. 44
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT............ 44
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY................................. 44
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.............. 44
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER
LOAN DOCUMENTS........................... 45
SECTION 9.9. CO-DOCUMENTATION AGENTS AND SYNDICATION
AGENT.................................... 45
ARTICLE X MISCELLANEOUS............................... 45
SECTION 10.1. NOTICES..................................... 45
SECTION 10.2. WAIVER; AMENDMENTS.......................... 46
SECTION 10.3. EXPENSES; INDEMNIFICATION................... 48
SECTION 10.4. SUCCESSORS AND ASSIGNS...................... 49
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO
SERVICE OF PROCESS....................... 52
SECTION 10.6. WAIVER OF JURY TRIAL....................... 53
SECTION 10.7. COUNTERPARTS; INTEGRATION................... 53
SECTION 10.8. SURVIVAL.................................... 53
SECTION 10.9. SEVERABILITY................................ 54
SECTION 10.10. CONFIDENTIALITY............................. 54
SECTION 10.11. INTEREST RATE LIMITATION.................... 54
SECTION 10.12. WAIVER OF EFFECT OF CORPORATE SEAL.......... 55
SECTION 10.13. WAIVER RIGHT OF SETOFF...................... 55
SECTION 10.14. PATRIOT ACT................................. 55
SCHEDULES
SCHEDULE I - APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
SCHEDULE II - COMMITMENT AMOUNTS
SCHEDULE 4.14 - SUBSIDIARIES
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
HAVERTYS CREDIT SERVICES, INC., a Tennessee 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"), 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 $20,000,000 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 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 Parent Revolving Commitments have been
increased after the Closing Date pursuant to Section 2.24 of the
Parent 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 $20,000,000.
"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 (as such term is defined in, or incorporated by reference
into, the Parent Guaranty Agreement) in effect on such date as
set forth on Schedule I; 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 Parent delivers the financial statements required
by Section 5.1(a) or (b) of the Parent Credit Agreement and the
compliance certificate required by Section 5.1(c) of the Parent
Credit Agreement; provided further, that if at any time the
Parent 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 Parent's fiscal quarter ending September 30,
2005 are required to be delivered under the Parent Credit
Agreement 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 (as such term is defined in, or incorporated by reference
into, the Parent Guaranty Agreement) in effect on such date as
set forth on Schedule I; 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 Parent delivers the financial statements required
by Section 5.1(a) or (b) of the Parent Credit Agreement and the
compliance certificate required by Section 5.1(c) of the Parent
Credit Agreement; provided further, that if at any time the
Parent 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 Parent's fiscal
quarter ending September 30, 2005 as required to be delivered
under the Parent Credit Agreement 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.
"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 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
Parent 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 Parent;
(c) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Parent by Persons who
were neither (i) nominated by the current board of directors or
(ii) appointed by directors so nominated; or (c) the Parent shall
cease to own and control 100% of the capital stock of the
Borrower.
"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 for purposes of Section 2.18(b), by such
Lender'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 Parent.
"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).
"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.
"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).
"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 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.
"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 the Loan Parties.
"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.
"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 Loan
Parties 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.
"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.
"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), 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.
"Loan Parties" shall mean, collectively, the Borrower
and the Parent.
"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 Loan Parties and their Subsidiaries
taken as a whole, (ii) the ability of the Loan Parties to perform
any of their obligations under the Loan Documents, (iii) the
rights and remedies of the Administrative Agent, the 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) or Hedging Obligations, of any one or more of the
Loan Parties and their 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 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 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 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.
"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.
"Parent" shall mean Xxxxxxx Furniture Companies, Inc.,
a Maryland corporation.
"Parent Credit Agreement" shall mean that certain
Revolving Credit Agreement, dated as of the date hereof, by and
among the Parent, 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.
"Parent Guaranty Agreement" shall mean that certain
Guaranty Agreement, dated as of the date hereof, executed by the
Parent in favor of the Administrative Agent for the benefit of
the Lenders, as amended, restated, supplemented or otherwise
modified from time to time.
"Parent Revolving Commitments" shall mean all
"Revolving Commitments", as defined in the Parent Credit
Agreement.
"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.
"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 Parent and
The Prudential Insurance Company of America relating to the
Parent'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.
"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 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 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.
"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
$5,000,000.
"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 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.
"Swingline Termination Date" shall mean the date that
is two (2) Business Days prior to the Revolving Commitment
Termination Date.
"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 Parent under GAAP.
"Variable Interest Entity Obligations" shall mean all
lease obligations owed by the Parent 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 Parent delivered pursuant to Section 5.1(a) of the Parent
Credit Agreement; provided, that if the Borrower notifies the
Administrative Agent that the Parent wishes to amend any covenant
in Article VI of the Parent Credit Agreement 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 (as defined in the Parent Credit Agreement) wish
to amend Article VI of the Parent Credit Agreement for such
purpose), then the Loan Parties' 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, the Parent 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
Swingline Lender agrees to make Swingline Loans in accordance
with Section 2.4, and (iii) each Lender agrees to purchase a
participation interest in 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 and
Swingline Loans 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 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
("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.
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.
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, but not Swingline Exposure, of
such Lender.
(c) Intentionally Omitted.
(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 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
(ii) impose on any Lender or the eurodollar interbank market any
other condition affecting this Agreement or any Eurodollar Loans
made by such Lender;
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 reduce the amount received or
receivable by such Lender 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 for such additional costs
incurred or reduction suffered.
(b) If any Lender 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 capital (or on the capital of such
Lender's parent corporation) as a consequence of its obligations
hereunder or under to a level below that which such Lender or
such Lender's parent corporation could have achieved but for such
Change in Law (taking into consideration such Lender's policies
or the policies of such Lender'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 such Lender's parent corporation
for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or such Lender'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 such amount or amounts within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section 2.18 shall not constitute a
waiver of such Lender'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 or any Lender (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 and
each Lender, 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 or such Lender, 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 by the Administrative Agent on its own behalf or on
behalf of a Lender, 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, or fees, 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 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, 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 then due
hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal 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 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 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 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 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 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
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 the amount or
amounts due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay
to the Administrative Agent forthwith on demand the amount so
distributed to such Lender 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), 2.6(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. Intentionally Omitted.
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) Intentionally Omitted.
(d) An increase in the aggregate amount of the Revolving
Commitments pursuant to subsections (a) and (b) 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.
(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 (y) 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.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
Section 3.1. Conditions To Effectiveness. The obligations of
the Lenders (including the Swingline Lender) to make Loans
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 Loan Parties 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
each Loan Party, 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 such Loan Party executing the Loan
Documents to which it is a party;
(v) certified copies of the articles of incorporation of each
Loan Party, together with certificates of good standing or
existence, as may be available from the Secretary of State of the
jurisdiction of incorporation of such Loan Party and each other
jurisdiction where such Loan Party is required to be qualified to
do business as a foreign corporation;
(vi) a favorable written opinion of Xxxxx, Xxxxxxxx & Xxxxxxx,
counsel to the Loan Parties, addressed to the Administrative
Agent and each of the Lenders, and covering such matters relating
to the Loan Parties, 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 Loan
Parties set forth in the Loan Documents are true and correct and
(z) since the date of the financial statements of the Parent
described in Section 4.4 of the Parent Credit Agreement, 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 each Loan Party, 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 the
Parent and its Subsidiaries for the Parent's 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 the Parent 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; and
(xii) certificates of insurance issued on behalf of insurers
of the Loan Parties, describing in reasonable detail the types
and amounts of insurance (property and liability) maintained by
the Loan Parties, naming the Administrative Agent as additional
insured.
(c) Parent shall have executed and delivered the Parent 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 Parent 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 is subject to the
satisfaction of the following conditions at the time of and
immediately after giving effect to such Borrowing:
(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 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
Parent described in Section 4.4 of the Parent Credit Agreement,
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 docu
ments, 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 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 each Loan Party of the
Loan Documents to which it is a party are within such Loan
Party'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 to
which any Loan Party is a party, when executed and delivered by
such Loan Party, will constitute, valid and binding obligations
of the Borrower or such Loan Party, as the case may be, en
forceable 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 by each Loan Party of 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 such Loan Party 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 such Loan Party 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 such Loan Party 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 such Loan Party or any of
its Subsidiaries.
Section 4.4. Reserved.
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 Loan
Parties nor their 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 of their
Subsidiaries could become liable have timely filed or caused to
be filed all Federal income tax returns and all other material
tax returns that are required 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 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 Loan Parties nor
any of their 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 are 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 and 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 and
its Subsidiaries, 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, no Loan Party will 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 Loan Parties or their
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 remains unpaid:
Section 5.1. Financial Statements and Other Information. The
Borrower will deliver to the Administrative Agent and each
Lender:
(a) promptly upon request therefor, a copy of each report
(including without limitation management letters) submitted to
any Loan Party or its Subsidiaries by independent accountants in
connection with any annual, interim or special audit made by them
of the books of any Loan Party or its Subsidiaries;
(b) 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
(c) promptly following any request therefor, such other
information regarding the results of operations, business affairs
and financial condition of any Loan Party or any of its
Subsidiaries 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 of the Borrower or its Subsidiaries;
(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
of its Subsidiaries 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 any Loan Party or any of its Subsidiaries of any
written notice of an alleged default or event of default, respect
of any Material Indebtedness of any Loan Party 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 7.2.
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 the 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. 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.
ARTICLE VI
RESERVED
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 or any fee remains unpaid:
Section 7.1. Covenants of Guaranty Agreement. The Borrower
will not, and will not permit any Subsidiary to, breach any of
the covenants incorporated by reference from the Parent Credit
Agreement into the Parent Guaranty Agreement.
Section 7.2. Merger or Consolidation. The Borrower will not,
and will not permit any Subsidiary to, merge, consolidate or
exchange shares with any other Person, except that:
(a) any Subsidiary may merge or consolidate with the Borrower or
another Subsidiary;
(b) the Borrower may merge or consolidate with any other
corporation (including a Subsidiary) if the continuing or
surviving corporation is organized under the laws of, and with a
majority of its assets located in, the United States or a state
thereof or the District of Columbia and the continuing or
surviving corporation (if not the Borrower) assumes the
obligations of the Borrower hereunder under an agreement
reasonably acceptable to the Required Lenders, and immediately
after such merger or consolidation, no Default or Event of
Default shall have occurred or exist; and
(c) any Subsidiary may merge with another Person in connection
with an acquisition of such Person permitted under the terms of
the Loan Documents; provided that, following such merger, the
Borrower owns the same percentage of outstanding voting stock of
the surviving entity as Borrower owned of such Subsidiary prior
to such merger and further provided that no Default or Event of
Default exists hereunder or would result therefrom.
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
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 any Loan Party or any of its Subsidiaries in or in
connection with this Agreement or any other Loan Document
(including the Schedules 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 any Loan Party or any
representative of any Loan Party 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 or 5.9 or Article VII (subject in
the case of covenants incorporated by reference into Article VII,
to any grace period provided in the Parent Credit Agreement with
respect thereto); or
(e) any Loan Party 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 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) any Loan Party or any of its Subsidiaries (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) any Loan Party or any of its Subsidiaries 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 such Loan Party or 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 any Loan Party or
any of its Subsidiaries 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 any Loan Party or any of
its Subsidiaries 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) any Loan Party or any of its Subsidiaries 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 Loan Parties and their 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 any Loan
Party or any of its Subsidiaries, 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
any Loan Party or any of its Subsidiaries 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) any provision of any Guaranty Agreement shall for any reason
cease to be valid and binding on, or enforceable against, any
Guarantor, or any Guarantor shall so state in writing, or any
Guarantor shall seek to terminate its Guaranty Agreement;
(o) an Event of Default shall occur under any other Loan
Document; or
(p) an "Event of Default" shall occur under the Parent 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) exercise
all remedies contained in any other Loan Document; and (iv)
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. 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.
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 and the Swingline Lender 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 and the Swingline Lender 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, 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
any Loan Party.
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: Havertys Credit Services, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxx X. Xxxxxx
Telecopy Number: (000) 000-0000
With a copy to: 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. E./ 3rd Floor
Atlanta, Georgia 30308
Attention: Xxxx Xxxxxxx
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 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 or any
Lender in exercising any right or power hereunder or any other
Loan Document, and no course of dealing between the Borrower on
the one hand and the Administrative Agent or any Lender on the
other hand, shall operate 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 exer
cise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent 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 shall not
be construed as a waiver of any Default or Event of Default,
regardless of whether the Administrative Agent or any Lender 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 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 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 or the Swingline Lender 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) and (ii) 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 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, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such
Loans.
(b) The Borrower shall indemnify the Administrative Agent (and
any sub-agent thereof) 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, any Loan Party 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 any actual or proposed use of the
proceeds therefrom, (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 or the Swingline
Lender under clauses (a), (b) or (c) hereof, each Lender
severally agrees to pay to the Administrative Agent 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 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 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 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 or the
Swingline Lender 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 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 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
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 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 Loan Parties 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, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the
Administrative Agent 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 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
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.
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
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
of its Subsidiaries, except that such information may be
disclosed (i) to any Related Party of the Administrative Agent 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, 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 neither it nor any other Loan Party
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 and each Lender hereby waives with respect
to the Obligations, any contractual or common law right of setoff
against any deposits of any Loan Party now or hereafter held by
and other indebtedness or property then or thereafter owing by
such Lender or other holder to any Loan Party.
Section 10.14. Patriot Act. The Administrative Agent and each
Lender hereby notifies each Loan Party 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
any Loan Party, which information includes the name and address
of any Loan Party and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify
any Loan Party in accordance with the Patriot Act. Each Loan
Party 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.
HAVERTYS CREDIT SERVICES, INC.
By /s/ Xxx Xxxxxx
-------------------------------
Name: Xxx Xxxxxx
Title: President and General Manager
SUNTRUST BANK,
as Administrative Agent, as
Swingline Lender, as and as a Lender
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BRANCH BANKING AND TRUST CO.,
as a Lender
By /s/ Xxxx XxXxxxxxxx
-------------------------------
Name: Xxxx XxXxxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A., as a Lender
By /s/ Xxxxxx XxxXxxxxxx
-------------------------------
Name: Xxxxxx XxxXxxxxxx
Title: Director
REGIONS BANK, as a Lender
By /s/ Xxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxx X. Xxx
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 $5,000,000
Wachovia Bank, National Association $4,000,000
Bank of America, N.A. $4,000,000
Regions Bank $4,000,000
Branch Banking & Trust Company $3,000,000
