AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
Dated as of October 10, 1996
By And Among
XXXXXX SUPPLY, INC.
AND
SUNTRUST BANK, ATLANTA, individually, as Agent,
and as Administrative Agent,
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION,
individually and as Agent,
NATIONSBANK, N.A. (SOUTH)
SOUTHTRUST BANK OF ALABAMA, NATIONAL ASSOCIATION
FIRST UNION NATIONAL BANK OF FLORIDA
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION 1
Section 1.01. Definitions 1
Section 1.02. Accounting Terms and Determination 17
Section 1.03. Other Definitional Terms 17
Section 1.04. Exhibits and Schedules 17
ARTICLE II REVOLVING LOANS 17
Section 2.01. Commitment; Use of Proceeds 17
Section 2.02. Notes; Repayment of Principal 18
Section 2.03. Voluntary Reduction of Revolving
Loan 18
ARTICLE III LINE OF CREDIT LOANS; TERM LOANS 19
Section 3.01. Line of Credit Loan Commitment;
Use of Proceeds 19
Section 3.02. Notes; Repayment Principal 20
Section 3.03. Voluntary Reduction of Loan
Commitments 20
Section 3.04. Term Loans 21
Section 3.05. Repayment of Principal of Term Loans 21
ARTICLE IV GENERAL LOAN TERMS 21
Section 4.01. Funding Notices 21
Section 4.02. Disbursement of Funds 23
Section 4.03. Interest 25
Section 4.04. Interest Periods 26
Section 4.05. Fees 27
Section 4.06. Voluntary Prepayments of Borrowings 27
Section 4.07. Payments, etc. 28
Section 4.08. Interest Rate Not Ascertainable, etc. 30
Section 4.09. Illegality 30
Section 4.10. Increased Costs 31
Section 4.11. Lending Offices 32
Section 4.12. Funding Losses 33
Section 4.13. Assumptions Concerning Funding of
Fixed Rate Advances 33
Section 4.14. Apportionment of Payments 33
Section 4.15. Sharing of Payments, Etc. 34
Section 4.16. Capital Adequacy 34
Section 4.17. Benefits to Guarantors 35
Section 4.18. Limitation on Certain Payment
Obligations 35
ARTICLE V CONDITIONS TO BORROWINGS 35
Section 5.01. Conditions Precedent to Initial Loans 35
Section 5.02. Conditions to All Loans 38
ARTICLE VI REPRESENTATIONS AND WARRANTIES 39
Section 6.01. Organization and Qualification 39
Section 6.02. Corporate Authority 39
Section 6.03. Financial Statements 39
Section 6.04. Tax Returns 40
Section 6.05. Actions Pending 40
Section 6.06. Representations; No Defaults 40
Section 6.07. Title to Properties 40
Section 6.08. Enforceability of Agreement 41
Section 6.09. Consent 41
Section 6.10. Use of Proceeds; Federal Reserve
Regulations 41
Section 6.11. ERISA 41
Section 6.12. Subsidiaries 42
Section 6.13. Outstanding Debt 42
Section 6.14. Conflicting Agreements 42
Section 6.15. Pollution and Other Regulations 42
Section 6.16. Possession of Franchises, Licenses, Etc. 43
Section 6.17. Patents, Etc. 44
Section 6.18. Governmental Consent 44
Section 6.19. Disclosure 44
Section 6.20. Insurance Coverage 44
Section 6.21. Labor Matters 44
Section 6.22. Intercompany Loans; Dividends 45
Section 6.23. Burdensome Restrictions 45
ARTICLE VII AFFIRMATIVE COVENANTS 45
Section 7.01. Corporate Existence, Etc. 45
Section 7.02. Compliance with Laws, Etc. 46
Section 7.03. Payment of Taxes and Claims, Etc. 46
Section 7.04. Keeping of Books 46
Section 7.05. Visitation, Inspection, Etc. 46
Section 7.06. Insurance; Maintenance of Properties 46
Section 7.07. Reporting Covenants 47
Section 7.08. Financial Covenants 50
Section 7.09. Notices Under Certain Other Indebtedness 51
Section 7.10. Additional Guarantors 51
Section 7.11. Financial Statements; Fiscal Year 51
Section 7.12. Ownership of Guarantors 51
ARTICLE VIII NEGATIVE COVENANTS 52
Section 8.01. Indebtedness 52
Section 8.02. Liens 52
Section 8.03. Mergers, Acquisitions, Sales, Etc. 53
Section 8.04. Investments, Loans, Etc. 54
Section 8.05. Sale and Leaseback Transactions 55
Section 8.06. Transactions with Affiliates 55
Section 8.07. Optional Prepayments 55
Section 8.08. Changes in Business 55
Section 8.09. ERISA 56
Section 8.10. Additional Negative Pledges 56
Section 8.11. Limitation on Payment Restrictions
Affecting Consolidated Companies 56
Section 8.12. Actions Under Certain Documents 56
ARTICLE IX EVENTS OF DEFAULT 56
Section 9.01. Payments 57
Section 9.02. Covenants Without Notice 57
Section 9.03. Other Covenants 57
Section 9.04. Representations 57
Section 9.05. Non-Payments of Other Indebtedness 57
Section 9.06. Defaults Under Other Agreements 57
Section 9.07. Bankruptcy 57
Section 9.08. ERISA 58
Section 9.09. Money Judgment 58
Section 9.10. Ownership of Credit Parties and
Pledged Entities 59
Section 9.11. Change in Control of Borrower 59
Section 9.12. Default Under Other Credit Documents 59
Section 9.13. Attachments 59
ARTICLE X THE AGENT 60
Section 10.01. Appointment of Agent 60
Section 10.02. Nature of Duties of Agent 60
Section 10.03. Lack of Reliance on the Agent 60
Section 10.04. Certain Rights of the Agent 61
Section 10.05. Reliance by Agent and Administrative
Agent 61
Section 10.06. Indemnification of Agent and Administrative
Agent 61
Section 10.07. The Agent and Administrative Agent
in its Individual Capacity 62
Section 10.08. Holders of Notes 62
Section 10.09. Successor Agent; Successor Administrative
Agent 62
ARTICLE XI MISCELLANEOUS 63
Section 11.01. Notices 63
Section 11.02. Amendments, Etc. 63
Section 11.03. No Waiver; Remedies Cumulative 64
Section 11.04. Payment of Expenses, Etc. 64
Section 11.05. Right of Setoff 66
Section 11.06. Benefit of Agreement 66
Section 11.07. Governing Law; Submission to
Jurisdiction 68
Section 11.08. Independent Nature of Lenders' Rights 69
Section 11.09. Counterparts 69
Section 11.10. Effectiveness; Survival 69
Section 11.11. Severability 70
Section 11.12. Independence of Covenants 70
Section 11.13. Change in Accounting Principles, Fiscal Year
or Tax Laws 70
Section 11.14. Headings Descriptive; Entire Agreement 70
Section 11.15. Time is of the Essence 71
Section 11.16. Usury 71
Section 11.17. Construction 71
Section 11.18. Effect of Amendment and Restatement 71
SCHEDULES
Schedule 6.01 Organization and Ownership of
Subsidiaries
Schedule 6.04 Tax Filings and Payments
Schedule 6.05 Certain Pending and Threatened
Litigation
Schedule 6.11 Employee Benefit Matters
Schedule 6.13 Outstanding Debt Defaults, Refinanced
Indebtedness
Schedule 6.14 Conflicting Agreements
Schedule 6.15(a) Environmental Compliance
Schedule 6.15(b) Environmental Notices
Schedule 6.15(c) Environmental Permits
Schedule 6.17 Patent, Trademark, License, and
Other Intellectual Property
Matters
Schedule 6.20 Insurance
Schedule 6.21 Labor and Employment Matters
Schedule 6.22 Intercompany Loans
Schedule 6.23 Burdensome Restrictions
Schedule 8.01(b) Existing Indebtedness
Schedule 8.02 Existing Liens
EXHIBITS
Exhibit A Form of Syndicate Revolving Credit Note
Exhibit B Form of Competitive Bid Revolving
Credit Note
Exhibit C Form of Syndicate Line of Credit Note
Exhibit D Form of Competitive Bid Line of
Credit Note
Exhibit E Form of Syndicate Term Note
Exhibit F Form of Competitive Bid Term Note
Exhibit G Form of Guaranty
Exhibit H Form of Closing Certificate
Exhibit I Form of Assignment and Acceptance
Exhibit J Form of Opinion of Borrower's Counsel
Exhibit K Form of Contribution Agreement
AMENDED AND RESTATED
REVOLVING CREDIT AND LINE OF CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AND LINE OF
CREDIT AGREEMENT, dated as of October 10, 1996 (the "Agreement")
by and among XXXXXX SUPPLY, INC. ("Borrower"), a Florida
corporation, SUNTRUST BANK, ATLANTA ("SunTrust Bank, Atlanta"), a
Georgia banking corporation, SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, ("SunTrust Bank, Central Florida") a
national banking association, NATIONSBANK N.A. (South), a
national banking association, SOUTHTRUST BANK OF ALABAMA, a na
tional banking association, and FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association, (collectively, the
"Lenders" and, individually, a "Lender"), SUNTRUST, BANK ATLANTA
and SUNTRUST BANK, CENTRAL FLORIDA as Agents for the Lenders, and
SUNTRUST BANK, ATLANTA as Administrative Agent for Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, the Lenders, the Agents and the
Administrative Agent are parties to that certain Revolving Credit
and Line of Credit Agreement, dated as of May 28, 1993, as
heretofore amended or modified (the "Original Credit Agreement");
WHEREAS, the Borrower, the Lenders, the Agents and the
Administrative Agent desire to amend the Original Credit
Agreement to reflect certain changes requested by the Borrower
and agreed to by the Lenders, and to restate the Original Credit
Agreement, as so amended, in its entirety, in order to remove
references to transactions which have been completed, to set
forth in a single agreement all of the amendments to the Original
Credit Agreement (including those effected hereby), and for
convenience of reference;
NOW, THEREFORE, in consideration of the mutual
covenants made herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.01. Definitions. As used in this Agreement,
and in any instrument, certificate, document or report delivered
pursuant hereto, the following terms shall have the following
meanings (to be equally applicable to both the singular and
plural forms of the term defined):
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Advance, the rate obtained by
dividing (A) LIBOR for such Interest Period by (B) a percentage
equal to 1 minus the then stated maximum rate (stated as a
decimal) of all reserves requirements (including, without
limitation, any marginal, emergency, supplemental, special or
other reserves) applicable to any member bank of the Federal
Reserve System in respect of Eurodollar liabilities as defined in
Regulation D (or against any successor category of liabilities as
defined in Regulation D).
"Advance" shall mean any principal amount advanced and
remaining outstanding at any time under the Revolving Credit
Loans, the Line of Credit Loans, or the Term Loans which Advance
shall be made or outstanding as a Base Rate Advance, CD Rate
Advance or Eurodollar Advance, as the case may be.
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by, or under
common control with, such Person, whether through the ownership
of voting securities, by contract or otherwise. For purposes of
this definition, "control" (including with correlative meanings,
the terms "controlling", "controlled by", and "under common
control with") as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person.
"Administrative Agent" shall mean SunTrust Bank,
Atlanta, a Georgia banking corporation, and each successor
Administrative Agent.
"Agent" shall mean SunTrust Bank, Atlanta and SunTrust
Bank, Central Florida, jointly and severally, as agent for the
Lenders hereunder and under the other Credit Documents, and each
successor Agent.
"Agreement" shall mean this Amended and Restated
Revolving Credit and Line of Credit Agreement, either as
originally executed or as it may be from time to time sup
plemented, amended, restated, renewed or extended and in effect.
"Applicable Margin" shall mean the percentage
designated below based on the fiscal quarter-end ratios for each
of Borrower's Fixed Charge Coverage Ratio and Senior Funded Debt
to Total Capital Ratio indicated below:
Senior Funded Fixed Charge Coverage Ratio
Debt to Total
Capital
<1.50 1.5 to >2.0
2.0
>55% 1.25% 1.125% 1.0%
55% to >40% 1.0% .875% .75%
30% to 40% .875% .75% .625%
<30% .75% .625% .50%
provided, however, that:
(a) The Applicable Margin in effect as of the
date of execution and delivery of this Agreement shall
be .75% and shall remain in effect until such time as
the Applicable Margin may be adjusted as hereinafter
provided; and
(b) So long as no Default or Event of Default has
occurred and is continuing under this Agreement,
adjustments, if any, to the Applicable Margin based on
changes in the ratios set forth above shall be made and
become effective on the first day of the second fiscal
quarter after such determination.
"Asbestos Laws" means the common law in all federal,
state and local and foreign jurisdictions and other laws in such
jurisdictions, and regulations, codes, orders, decrees, judgments
or injunctions issued, promulgated, approved or entered thereun
der, now or hereafter in effect relating to or concerning
asbestos or asbestos-containing material, including without
limitation, exposure to asbestos or asbestos-containing material.
"Asset Value" shall mean, with respect to any property
or asset of any Consolidated Company as of any particular date,
an amount equal to the greater of (i) the then book value of such
property or asset as established in accordance with GAAP, and
(ii) the then fair market value of such property or asset as
determined in good faith by the board of directors of such
Consolidated Company.
"Assignment and Acceptance" shall mean an assignment
and acceptance entered into by a Lender and an Eligible Assignee
in accordance with the terms of this Agreement and substantially
in the form of Exhibit I.
"Bankruptcy Code" shall mean The Bankruptcy Code of
1978, as amended and in effect from time to time (11 U.S.C. 101
et seq.).
"Base Rate" shall mean (with any change in the Base
Rate to be effective as of the date of change of either of the
following rates), with respect to the Revolving Loans, Line of
Credit Loans and Term Loans, the higher of (a) the rate which the
Administrative Agent designates from time to time to be its prime
lending rate, as in effect from time to time, and (b) the Federal
Funds Rate, as in effect from time to time, plus one-half of one
percent (0.50%) per annum. 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.
"Base Rate Advance" shall mean an Advance made or
outstanding as a Revolving Loan, Line of Credit Loan or Term Loan
as the case may be, bearing interest based on the Base Rate.
"Base Rate Loan" shall mean any Loan hereunder which
bears interest at the Base Rate.
"Borrowing" shall mean the incurrence by Borrower under
any Facility of Advances of one Type concurrently having the same
Interest Period or the continuation or conversion of an existing
Borrowing or Borrowings in whole or in part.
"Business Day" shall mean, with respect to Eurodollar
Loans, any day other than a day on which commercial banks are
closed or required to be closed for domestic and international
business, including dealings in Dollar deposits on the London
Interbank Market, and with respect to all other Loans and
matters, any day other than Saturday, Sunday and a day on which
commercial banks are required to be closed for business in
Atlanta, Georgia or Orlando, Florida.
"Capitalized Lease Obligations" shall mean all lease
obligations which have been or are required to be, in accordance
with generally accepted accounting principles, capitalized on the
books of the lessee.
"Cash Flow Coverage Ratio" shall mean, as at the end of
any fiscal period of Borrower, the ratio of (A) the sum of
Consolidated Net Income plus, to the extent deducted in
determining such Consolidated Net Income, depreciation expense
and amortization expense minus the change in Working Capital to
(B) the sum of Net Capital Expenditures, dividends, and current
maturities of long term debt.
"CD Rate" shall mean, with respect to any Interest
Period, the rate of interest, adjusted for reserves and FDIC
insurance and expressed as a percentage, available at 9:00 a.m.
(Atlanta, Georgia time), or as soon thereafter as practicable,
identified on the Dow Xxxxx Telerate Service ("Telerate") as the
consensus bid rate for secondary certificates of deposit in an
aggregate amount approximately comparable to the advance to which
such rate is to be applicable with a maturity equal to such
Interest Period (said consensus bid rate currently being shown on
page 5 of Telerate). If the foregoing rate is unavailable on
Telerate for any reason, then such rate shall be determined by
the Agent from the comparable rate quoted on another interest
rate reporting service of recognized standing as designated by
the Administrative Agent to Borrower and Lender.
"CD Rate Advance" shall mean an Advance made or
outstanding as a Revolving Loan, a Line of Credit Loan or a Term
Loan, as the case may be, bearing interest based on the CD Rate.
"CERCLA" has the meaning set forth in Section 6.15(a)
of this Agreement.
"Closing Date" shall mean the date on or before October
10, 1996, on which the initial Loans are made and the conditions
set forth in Section 5.01 are satisfied or waived in accordance
with Section 11.02.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment" shall mean, for any Lender at any time,
any of its Revolving Loan Commitment or Line of Credit Loan
Commitment, as the case may be.
"Competitive Bid Line of Credit Loan" shall mean a Line
of Credit Loan made by a Lender on a competitive bid basis as
provided in Article IV.
"Competitive Bid Line of Credit Notes" shall mean,
collectively, the promissory notes evidencing the Competitive Bid
Line of Credit Loans in the form attached hereto as Exhibit D.
"Competitive Bid Rate" shall mean the interest rate
charged by a Lender on a Competitive Bid Line of Credit Loan or a
Competitive Bid Revolving Loan.
"Competitive Bid Revolving Credit Notes" shall mean,
collectively, the promissory notes evidencing the Competitive Bid
Revolving Credit Loans in the form attached hereto as Exhibit B.
"Competitive Bid Revolving Loan" shall mean a Revolving
Loan made by a Lender on a competitive bid basis as provided in
Article IV.
"Competitive Bid Term Loan" shall mean a Term Loan made
by a Lender on a competitive bid basis as provided in Article IV.
"Competitive Bid Term Notes" shall mean, collectively,
the promissory notes evidencing the Competitive Bid Term Loans in
the form attached hereto as Exhibit F.
"Consolidated Companies" shall mean, collectively,
Borrower and all of its Subsidiaries.
"Consolidated EBITR" shall mean, for any fiscal period
of the Borrower, an amount equal to (A) the sum of its
Consolidated Net Income (Loss), plus, to the extent deducted in
determining Consolidated Net Income (Loss), (i) provisions for
taxes based on income, (ii) Consolidated Interest Expense, and
(iii) Consolidated Rental Expense.
"Consolidated Interest Expense" shall mean, for any
fiscal period of Borrower, total interest expense (including
without limitation, interest expense attributable to capitalized
leases in accordance with the generally accepted accounting
principles and any program costs incurred by Borrower in
connection with sales of accounts receivable pursuant to a
securitization program) of Borrower and its subsidiaries on a
consolidated basis.
"Consolidated Rental Expense" shall mean for any fiscal
period of Borrower, total operating lease expense of Borrower and
its subsidiaries on a consolidated basis.
"Consolidated Net Income (Loss)" shall mean, for any
fiscal period of Borrower, the net income (or loss) of Borrower
and it subsidiaries on a consolidated basis for such period
(taken as a single accounting period) determined in conformity
with generally accepted accounting principles; provided that
there shall be excluded therefrom (i) any items of gain or loss
which were included in determining such consolidated net income
and were not realized in the ordinary course of business or the
result of a sale of assets other than in the ordinary course of
business; and (ii) the income (or loss) of any party accrued
prior to the date such becomes a subsidiary of Borrower or is
merged into or consolidated with Borrower or any of its
subsidiaries, or such party's assets are required by the Borrower
or any of its subsidiaries.
"Consolidated Net Worth" shall mean as of the date of
determination, the Borrower's total shareholder's equity as
determined in accordance with generally accepted accounting
principles.
"Consolidated Subsidiary" shall mean, as at any
particular time, any corporation included as a consolidated
Subsidiary of Borrower in Borrower's most recent financial
statements furnished to its stockholders and certified by
Borrower's independent public accountants, provided that under
then generally accepted accounting principles approved by such
independent public accountants, such corporation may continue to
be so included as a consolidated Subsidiary of Borrower in any
financial statements thereafter certified by such accountants.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any
agreement, instrument or undertaking under which such Person is
obligated or by which it or any of the property owned by it is
bound.
"Conversion Date" shall mean, with respect to a Line of
Credit Loan, the date on which such Line of Credit Loan shall
come due within the period (a) 90 days prior to the termination
of the Line of Credit Commitment, and (b) the termination date of
the Line of Credit Commitment, which termination date is
initially 360 days after the Closing Date, but which is subject
to extension pursuant to the terms of this Agreement. Line of
Credit Loans shall be paid, renewed or converted to Term Loans on
a Conversion Date.
"Credit Documents" shall mean, collectively, this
Agreement, the Notes, the Guaranty Agreements, and all other
Guaranty Documents, if any.
"Credit Parties" shall mean, collectively, each of
Borrower, the Guarantors, and every other Person who from time to
time executes a Credit Document with respect to all or any
portion of the Obligations.
"Default" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of
Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
"Eligible Assignee" shall mean (i) a commercial bank
organized under the laws of the United States, or any state
thereof, having total assets in excess of $1,000,000,000 or any
commercial finance or asset based lending Affiliate of any such
commercial bank and (ii) any Lender or any Affiliate of any
Lender.
"Environmental Laws" shall mean all federal, state,
local and foreign statutes and codes or regulations, rules or
ordinances issued, promulgated, or approved thereunder, now or
hereafter in effect (including, without limitation, those with
respect to asbestos or asbestos containing material or exposure
to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public
health and safety, relating to (i) emissions, discharges,
releases or threatened releases of pollutants, contaminants,
chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof,
any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law into the environment
(including without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), or (ii) the
manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil or any
fraction thereof, any petroleum product or other waste, chemicals
or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions,
discharges and releases or threatened releases therefrom, such
Environmental Laws to include, without limitation (i) the Clean
Air Act (42 U.S.C. 7401 et seq.), (ii) the Clean Water Act (33
U.S.C. 1251 et seq.), (iii) the Resource Conservation and
Recovery Act (42 U.S.C. 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. 2601 et seq.) and (v) the
Comprehensive Environmental Response Compensation and Liability
Act, as amended by the Superfund Amendments and Reauthorization
Act (42 U.S.C. 9601 et seq.).
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any
Person, each trade or business (whether or not incorporated)
which is a member of a group of which that Person is a member and
which is under common control within the meaning of the
regulations promulgated under Section 414 of the Tax Code.
"Eurodollar Advance" shall mean an Advance made or
outstanding as a Revolving Loan, a Line of Credit Loan, or a Term
Loan, as the case may be, bearing interest based on the Adjusted
LIBO Rate.
"Eurodollar Loan" shall mean any Loan hereunder which
bears interest based on the Adjusted LIBO Rate.
"Event of Default" shall have the meaning set forth in
Article IX.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time, and any successor statute
thereto.
"Executive Officer" shall mean with respect to any
Person (other than a Guarantor), the President, Vice Presidents,
Chief Financial Officer, Treasurer, Secretary and any Person
holding comparable offices or duties, and with respect to a
Guarantor, the President.
"Extension of Credit" shall mean the making of a Loan
or the conversion of a Loan of one Type into a Loan of another
Type.
"Facility" or "Facilities" shall mean the Revolving
Loan Commitments and Revolving Loans, the Line of Credit
Commitment and Line of Credit Loans, or the Term Loans as the
context may indicate.
"Federal Funds Rate" shall mean for any period, a
fluctuating interest rate per annum equal for each day during
such period to the weighted average of the rates on overnight
Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta,
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent.
"Final Maturity Date" shall mean the date on which all
commitments have been terminated and all amounts outstanding
under this Agreement have been declared or have automatically be
come due and payable pursuant to the provisions of Article IX.
"Fixed Charge Coverage Ratio" shall mean, as at the end
of any fiscal year period of Borrower, the ratio of (A)
Consolidated EBITR to (B) the sum of (i) Consolidated Interest
Expense plus (ii) Consolidated Rental Expense.
"Fixed Rate Advance" shall mean any CD Rate Advance and
any Eurodollar Advance.
"Funded Debt" shall mean all indebtedness for money
borrowed, purchase money mortgages, capitalized leases, amounts
of any outstanding accounts receivable sold pursuant to a
securitization program, conditional sales contracts and similar
retention debt instruments, including any current maturities of
such indebtedness, which by its terms matures more than one year
from the date of any calculation thereof and/or which is
renewable or extendable at the option of the obligor to a date
beyond one year from such date. The calculation of Funded Debt
shall include all Funded Debt of the Borrower and its
Subsidiaries, plus all Funded Debt of other entities or persons,
other than Subsidiaries, which has been guaranteed by the
Borrower or any Subsidiary or which is supported by a letter of
credit issued for the account of the Borrower or any Subsidiary.
"GAAP" shall mean generally accepted accounting
principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession, which are
applicable to the circumstances as of the date of determination.
"Guaranteed Indebtedness" shall mean, as to any Person,
any obligation of such Person guaranteeing any indebtedness,
lease, dividend, or other obligation ("primary obligation") of
any other Person (the "primary obligor") in any manner including,
without limitation, any obligation or arrangement of such Person
(a) to purchase or repurchase any such primary obligation, (b) to
advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency or any balance sheet condition of the
primary obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) to indemnify the owner
of such primary obligation against loss in respect thereof.
"Guarantors" shall mean, collectively, each Subsidiary
of the Borrower that has executed a Guaranty Agreement as of the
Closing Date, together with all other Material Subsidiaries that
hereafter execute a Guaranty Agreement, and their respective
successors and permitted assigns.
"Guaranty Agreements" shall mean, collectively, the
Guaranty Agreement executed by each of the Guarantors in favor of
the Lenders and the Agent, substantially in the form of Exhibit G
as the same may be amended, restated or supplemented from time to
time, and the Contribution Agreement executed by each of the
Guarantors, substantially in the form of Exhibit K as the same
may be amended, restated or supplemented from time to time.
"Guaranty Documents" shall mean, collectively, the
Guaranty Agreements, and each other guaranty agreement, mortgage,
deed of trust, security agreement, pledge agreement, or other
security or collateral document guaranteeing or securing the
Obligations, as the same may be amended, restated, or
supplemented from time to time, and the Contribution Agreements
executed by each of the Guarantors, as the same may be amended,
restated or supplemented from time to time.
"Hazardous Materials" shall mean oil, petroleum or
chemical liquids or solids, liquid or gaseous products, asbestos,
or any other hazardous waste or hazardous substances, including,
without limitation, hazardous medical waste or any other
substance described in any Hazardous Materials Law.
"Hazardous Materials Law" shall mean the Comprehensive
Environmental Response Compensation and Liability Act as amended
by the Super Fund Amendments and Reauthorization Act, 42 U.S.C.
9601, the Resource Conservation and Recovery Act, 42 U.S.C.
6901, the state hazardous waste laws, as such laws may from
time to time be in effect, and related regulations, and all
similar laws and regulations.
"Hazardous Substances" has the meaning assigned to that
term in CERCLA.
"Xxxxxx Family" shall mean (i) Xxxxx X. Xxxxxx, Xxxxxxx
X. Xxxxxx, Xxxxxxx X. Xxxxxx, (ii) any of their direct family
members (including, without limitation, lineal ancestors and
descendants, siblings, and lineal descendants of siblings), (iii)
any trusts and profit sharing plans and stock option plans
established for the sole benefit of the foregoing, and (iv) the
heirs and personal representatives of the foregoing.
"Indebtedness" of any Person shall mean, without
duplication (i) all obligations of such Person which in
accordance with GAAP would be shown on the balance sheet of such
Person as a liability (including, without limitation, obligations
for borrowed money and for the deferred purchase price of
property or services, and obligations evidenced by bonds,
debentures, notes or other similar instruments); (ii) all rental
obligations under leases required to be capitalized under GAAP;
(iii) all Guaranteed Indebtedness of such Person (including
contingent reimbursement obligations under undrawn letters of
credit); (iv) Indebtedness of others secured by any Lien upon
property owned by such Person, whether or not assumed; and
(v) obligations or other liabilities under currency contracts,
interest rate hedging contracts, or similar agreements or com
binations thereof.
"Intercompany Loan Documents" shall mean, collectively,
the promissory notes and all related loan, subordination, and
other agreements, to the extent that they exist, relating in any
manner to the Intercompany Loans.
"Intercompany Loans" shall mean, collectively, (i) the
loans more particularly described on Schedule 6.22 and (ii) those
loans or other extensions of credit made by any Consolidated
Company to another Consolidated Company satisfying the terms and
conditions set forth in Section 8.01 or as may otherwise be
approved in writing by the Administrative Agent and the Required
Lenders.
"Interest Period" shall mean (i) such periods agreed
upon between Borrower and Lenders making Competitive Bid Loans
and with respect to CD Rate Advances, the period of 30, 60, 90,
or 180 days selected by the Borrower, and (ii) with respect to
LIBOR advances, the period of 1, 2, 3 or 6 months selected by the
Borrower, in either case pursuant to the terms of the credit
facility and subject to customary adjustments in duration;
provided, that (a) the first day of an Interest Period must be a
Business Day, (b) any Interest Period that would otherwise end on
a day that is not a Business Day for Eurodollar Loans or C/D Rate
Loans shall be extended to the next succeeding Business Day for
Eurodollar Loans or C/D Rate Loans, unless such Business Day
falls in the next calendar month, in which case the Interest
Period shall end on the next preceding Business Day for
Eurodollar Loans or C/D Rate Loans, and (c) Borrower may not
elect an Interest Period which would extend beyond the Line of
Credit Maturity Date or the Final Maturity Date.
"Investment" shall mean, when used with respect to any
Person, any direct or indirect advance, loan or other extension
of credit (other than the creation of receivables in the ordinary
course of business) or capital contribution by such Person (by
means of transfers of property to others or payments for property
or services for the account or use of others, or otherwise) to
any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in,
capital stock, partnership interests, bonds, notes, debentures or
other securities issued by any other Person.
"Lender" or "Lenders" shall mean the banks and lending
institutions listed on the signature pages hereof, and each
assignee thereof, if any, pursuant to Section 11.06.
"Lending Installation" shall mean any office, branch,
subsidiary or affiliate of any Lender.
"Lending Office" shall mean for each Lender the office
such Lender may designate in writing from time to time to
Borrower and the Agent with respect to each Type of Loan.
"Leverage Ratio" shall mean the ratio, expressed as a
percentage, of Senior Funded Debt to Total Capitalization for the
Consolidated Companies.
"LIBOR" shall mean, for any Interest Period, the
offered rates for deposits in U.S. dollars for a period
comparable to the Interest Period appearing on the Reuters Screen
LIBOR Page as of 11:00 a.m., London time, on the day that is two
London banking days prior to the first day of the Interest
Period. If at least two such rates appear on the Reuters Screen
LIBOR Page, the rate for that Interest Period will be the
arithmetic mean of such rates, rounded, if necessary, to the next
higher 1/16 of 1.0%; and in either case as such rates may be
adjusted for any applicable reserve requirements. If the
foregoing rate is unavailable from the Reuters Screen for any
reason, then such rate shall be determined by the Administrative
Agent from Telerate Page 3750 or, if such rate is also
unavailable on such service, then on any other interest rate
reporting service of recognized standing designated in writing by
the Administrative Agent to Borrower and the Lenders; in any such
case rounded, if necessary, to the next higher 1/16 of 1.0%, if
the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security inter
est, encumbrance, lien or charge of any kind or description and
shall include, without limitation, any agreement to give any of
the foregoing, any conditional sale or other title retention
agreement, any capitalized lease in the nature thereof including
any lease or similar arrangement with a public authority executed
in connection with the issuance of industrial development revenue
bonds or pollution control revenue bonds, and the filing of or
agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction.
"Line of Credit Commitment" shall mean at any time for
any Lender, the amount of such commitment set forth opposite such
Lender's name on the signature pages hereof or on any assignment
hereafter executed by any assignee of a Lender pursuant to
Section 11.06, as the same may be increased or decreased from
time to time as a result of any reduction thereof pursuant to
Sections 3.03, any assignment thereof pursuant to Section 11.06,
or any amendment thereof pursuant to Section 11.02.
"Line of Credit Loans" shall mean advances and Loans
made under the Line of Credit Commitment.
"Line of Credit Maturity Date" shall have the meaning
as defined in Section 3.01(a).
"Line of Credit Note" shall mean any of the promissory
notes issued by Borrower to each of the Lenders substantially in
the form of Exhibit C and Exhibit D, either as originally
executed or as the same may from time to time be supplemented,
modified, amended, renewed or extended.
"Loans" shall mean, collectively, the Revolving Loans,
the Line of Credit Loans and the Term Loans.
"Margin Regulations" shall mean Regulation G,
Regulation T, Regulation U and Regulation X of the Board of
Governors of the Federal Reserve System, as the same may be in
effect from time to time.
"Materially Adverse Effect" shall mean the occurrence
of an event, which would (i) cause the recognition of a
liability, as required by Statement of Financial Accounting
Standards No. 5, in the current quarter financial statements in
the amount of $5,000,000 or more, or (ii) cause an auditor to
have a substantial doubt about the ability of Borrower to
continue as a going concern after consideration of management's
plans as described in Statement of Auditing Standards, No. 59.
"Material Subsidiary" shall mean each Subsidiary of
Borrower, now existing or hereinafter established or acquired,
that at any time prior to the Final Maturity Date, has or
acquires total assets in excess of $1,000,000 or that accounted
for or produced more than 5% of the Consolidated EBITR of
Borrower on a consolidated basis during any of the three most
recently completed fiscal years of Borrower.
"Multiemployer Plan" shall have the meaning set forth
in Section 4001(a)(3) of ERISA.
"Net Capital Expenditures" shall mean capital
expenditures less the proceeds of sales of property, plant, and
equipment.
"Net Proceeds" shall mean, with respect to any Asset
Sale, all cash, including (i) cash proceeds collected pursuant
to a promissory note, a receivable or otherwise (other than
interest payable thereon), and (ii) with respect to asset sales
resulting from the loss, damage, destruction or taking of
property, the proceeds of insurance settlements and condemnation
awards (other than the portion of the proceeds of such
settlements and such awards that are used to repair, replace,
improve or restore the item of property in respect of which such
settlement or award was paid provided that the recipient of such
proceeds enters into a binding contractual obligation to effect
such repair, replacement, improvement or restoration within six
(6) months of such loss, damage or destruction and completes such
repair, replacement, improvement or restoration within twelve
(12) months of such loss, damage, destruction or taking) as and
when received in cash, in either case, received by any
Consolidated Company as a result of or in connection with such
transaction, net of reasonable sale expenses, fees and
commissions incurred, and taxes paid or expected to be payable
within the succeeding 12-month period in connection therewith,
and net of any payment required to be made with respect to the
outstanding principal amount of, premium or penalty, if any, and
interest on any Indebtedness (other than the Loans) secured by a
Lien (to the extent permitted by Section 8.02) upon the asset
sold in such asset sale.
"Note" shall mean any of the Revolving Credit Notes,
Line of Credit Notes or the Term Notes either as originally
executed or as the same may be from time to time supplemented,
modified, amended, renewed or extended.
"Notice of Borrowing" shall have the meaning provided
in Section 4.01.
"Notice of Continuation/Conversion" shall have the
meaning provided in Section 4.01.
"Obligations" shall mean all amounts owing to the Agent
or any Lender pursuant to the terms of this Agreement or any
other Credit Document, including without limitation, all Loans
(including all principal and interest payments due thereunder),
fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Credit Parties,
direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with
all renewals, extensions, modifications or refinancings thereof.
"Permitted Liens" shall mean those Liens expressly
permitted by Section 8.02.
"PBGC" shall mean the Pension Benefit Guaranty Corpora
tion, and any successor thereto.
"Person" shall mean and shall include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated association, a government or any department or
agency thereof and any other entity whatsoever.
"Plan" shall mean any employee benefit plan, program,
arrangement, practice or contract, maintained by or on behalf of
the Borrower or an ERISA Affiliate, which provides benefits or
compensation to or on behalf of employees or former employees,
whether formal or informal, whether or not written, including but
not limited to the following types of plans:
(i) Executive Arrangements - any bonus,
incentive compensation, stock option, deferred compensation,
commission, severance, "golden parachute", "rabbi trust", or
other executive compensation plan, program, contract,
arrangement or practice;
(ii) ERISA Plans - any "employee benefit
plan" as defined in Section 3(3) of ERISA), including, but
not limited to, any defined benefit pension plan, profit
sharing plan, money purchase pension plan, savings or thrift
plan, stock bonus plan, employee stock ownership plan,
Multiemployer Plan, or any plan, fund, program, arrangement
or practice providing for medical (including post-retirement
medical), hospitalization, accident, sickness, disability,
or life insurance benefits;
(iii) Other Employee Fringe Benefits - any
stock purchase, vacation, scholarship, day care, prepaid
legal services, severance pay or other fringe benefit plan,
program, arrangement, contract or practice.
"Pro Rata Share" shall mean, with respect to each of
the Commitments of each Lender and each Loan to be made by and
each payment (including, without limitation, any payment of
principal, interest or fees) to be made to each Lender, the
percentage designated as such Lender's Pro Rata Share of such
Commitments, such Loans or such payments, as applicable, set
forth under the name of such Lender on the respective signature
page for such Lender or in any assignment hereafter executed by
an assignee of a Lender pursuant to Section 11.06, in each case
as such Pro Rata Share may change from time to time as a result
of assignments or amendments made pursuant to this Agreement.
"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.
"Required Lenders" shall mean, at any time, Lenders
holding at least sixty-six and two/thirds percent (66.67%) of the
then aggregate amount of the Revolving Loan Commitments, the Line
of Credit Commitments and aggregate outstanding Loans.
"Requirement of Law" for any Person shall mean the
articles or certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any
law, treaty, rule or regulation, or determination of an
arbitrator or a court or other governmental authority, in each
case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is
subject.
"Reuters Screen" shall mean, when used in connection
with any designated page and LIBOR, the display page so
designated on the Reuter Monitor Money Rates Service (or such
other page as may replace that page on that service for the
purpose of displaying rates comparable to LIBOR).
"Revolving Credit Notes" shall mean, collectively, the
promissory notes evidencing the Revolving Loans in the form
attached hereto as Exhibit A and Exhibit B.
"Revolving Loan Commitment" shall mean, at any time for
any Lender, the amount of such commitment set forth opposite such
Lender's name on the signature pages hereof or in any assignment
executed by an assignee of a Lender pursuant to Section 11.06, as
the same may be increased or decreased from time to time as a
result of any reduction thereof pursuant to Section 2.03, any
assignment thereof pursuant to Section 11.06, or any amendment
thereof pursuant to Section 11.02.
"Revolving Loans" shall mean, collectively, the
revolving credit loans made to Borrower by the Lenders pursuant
to Section 2.01.
"Senior Funded Debt" shall mean an amount equal to
Funded Debt less Subordinated Debt.
"Shareholders' Equity" shall mean, with respect to any
Person as at any date of determination, shareholders' equity of
such Person, determined on a consolidated basis in conformity
with GAAP.
"Subordinated Debt" shall mean all Indebtedness of
Borrower and its Subsidiaries subordinated to all obligations of
Borrower and its Subsidiaries or any other Credit Party arising
under this Agreement, the Notes and the Guaranty Agreements on
terms and conditions satisfactory in all respects to the
Administrative Agent and the Required Lenders, including without
limitation, with respect to interest rates, payment terms,
maturities, amortization schedules, covenants, defaults,
remedies, and subordination provisions, as evidenced by the
written approval of the Administrative Agent and Required
Lenders.
"Subsidiary" shall mean, with respect to any Person,
any corporation or other entity (including, without limitation,
partnerships, joint ventures, and associations) regardless of its
jurisdiction of organization or formation, at least a majority of
the total combined voting power of all classes of voting stock or
other ownership interests of which shall, at the time as of which
any determination is being made, be owned by such Person, either
directly or indirectly through one or more other Subsidiaries.
"Syndicate Line of Credit Loan" shall mean,
collectively, the Line of Credit Loans made to Borrower hereunder
other than Competitive Bid Line of Credit Loans.
"Syndicate Revolving Loan" shall mean, collectively,
the Revolving Credit Loans made to Borrower hereunder other than
Competitive Bid Revolving Loans.
"Syndicate Term Loans" shall mean, collectively, the
Term Loans made to Borrower hereunder other than the Competitive
Bid Term Loans.
"Syndicate Term Notes" shall mean, collectively, the
promissory notes evidencing the Syndicate Term Loans in the form
attached hereto as Exhibit E
"Tax Code" shall mean the Internal Revenue Code of
1986, as amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or
other charges of whatever nature, including without limitation,
income, receipts, excise, property, sales, transfer, license,
payroll, withholding, social security and franchise taxes now or
hereafter imposed or levied by the United States, or any state,
local or foreign government or by any department, agency or other
political subdivision or taxing authority thereof or therein and
all interest, penalties, additions to tax and similar liabilities
with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and the "Certificate of Deposit Rate" or "LIBOR,"
the display page so designated on the Dow Xxxxx Telerate Service
(or such other page as may replace that page on that service for
the purpose of displaying rates comparable to the "Certificate of
Deposit Rate" or "LIBOR").
"Termination Date" shall mean June 30, 1999.
"Term Loans" shall mean, collectively, the Syndicate
Term Loans and the Competitive Bid Term Loans made to Borrower by
the Lenders on the respective Conversion Dates pursuant to
Section 3.04.
"Term Notes" shall mean, collectively, the Syndicate
Term Notes and the Competitive Bid Term Notes.
"Total Capital" shall mean the sum of Funded Debt and
Consolidated Net Worth.
"Total Commitment" shall mean the sum of the Lenders'
Commitments as such Total Commitment may be reduced by voluntary
reduction, prepayment or nonrenewal of a Lender's Commitment as
provided herein.
"Type" of Borrowing shall mean a Borrowing consisting
of Base Rate Advances, CD Rate Advances or Eurodollar Advances,
and any Advances made pursuant to the Competitive Bid Facility.
"Wholly Owned Subsidiary" shall mean any Subsidiary,
all the stock or ownership interest of every class of which,
except directors' qualifying shares, shall, at the time as of
which any determination is being made, be owned by Borrower
either directly or indirectly.
"Working Capital" shall mean, as the date of any
determination for Borrower and its subsidiaries (A) current
assets, as determined in accordance with generally accepted
accounting principles, excluding cash minus (b) current
liabilities, as determined in accordance with generally accepted
accounting principles excluding the current portion of Funded
Debt, in each case determined on a consolidated basis.
Section 1.02. Accounting Terms and Determination.
Unless otherwise defined or specified herein, all accounting
terms shall be construed herein, all accounting determinations
hereunder shall be made, all financial statements required to be
delivered hereunder shall be prepared, and all financial records
shall be maintained in accordance with, GAAP.
Section 1.03. Other Definitional Terms. The words
"hereof", "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
Article, Section, Schedule, Exhibit and like references are to
this Agreement unless otherwise specified.
Section 1.04. Exhibits and Schedules. All Exhibits
and Schedules attached hereto are by reference made a part
hereof.
ARTICLE II
REVOLVING LOANS
Section 2.01. Commitment; Use of Proceeds.
(a) Subject to and upon the terms and conditions
herein set forth, each Lender severally agrees to make to
Borrower from time to time on and after the Closing Date, but
prior to the Termination Date, Revolving Loans in an aggregate
amount outstanding at any time not to exceed such Lender's
Revolving Loan Commitment. Borrower shall be entitled to repay
and reborrow Revolving Loans in accordance with the provisions
hereof.
(b) Each Revolving Loan shall, at the option of
Borrower, be made or continued as, or converted into, part of one
or more Borrowings that shall consist entirely of Syndicate
Revolving Credit Advances (as Base Rate Advances, CD Rate
Advances, or Eurodollar Advances) or Competitive Bid Rate
Revolving Advances. The aggregate principal amount of each
Borrowing of Revolving Loans shall be not less than $2,000,000 or
a greater integral multiple of $100,000, provided that each
Borrowing of Revolving Loans comprised of Base Rate Advances
shall be not less than $250,000 or a greater integral multiple of
$10,000. At no time shall the number of Borrowings outstanding
under this Article II exceed six; provided that, for the purpose
of determining the number of Borrowings outstanding and the
minimum amount for Borrowings resulting from conversions or
continuations, all Borrowings of Base Rate Advances under this
Facility shall be considered as one Borrowing. The parties
hereto agree that (i) the aggregate principal balance of the
Revolving Loans (including the Competitive Bid Rate Revolving
Loans) of the Lenders as a group shall not exceed the Total
Revolving Commitments, (ii) no Lender shall be obligated to make
Syndicate Revolving Loans in excess of the Commitment of such
Lender, (iii) no Lender shall be obligated hereunder to extend
Competitive Bid Rate Revolving Loans or to make quotes for such
Loans, (iv) a Bank may elect, in its discretion, to extend
Competitive Bid Rate Revolving Loans which, either alone or
together with the Syndicate Loans of such Bank, exceed the
Commitment of such Lender and (v) the Competitive Bid Rate
Revolving Loans (if any) extended by a Bank shall reduce the
Commitment of such Bank by the amount of such Competitive Bid
Rate Revolving Loans so extended (but not below zero).
(c) The proceeds of Revolving Loans shall be used
solely for working capital purposes and for other general
corporate purposes, including acquisitions and capital
expenditures of the Consolidated Companies.
Section 2.02. Notes; Repayment of Principal.
(a) Borrower's obligations to pay the principal of,
and interest on, the Syndicate Revolving Loans and the
Competitive Bid Revolving Loans to each Lender shall be evidenced
by the records of the Agent and such Lender and by the Syndicate
Revolving Credit Note and the Competitive Bid Revolving Credit
Note payable to such Lender (or the assignor of such Lender)
completed in conformity with this Agreement.
(b) All outstanding principal amounts under the
Revolving Loans shall be due and payable in full on the
Termination Date.
Section 2.03. Voluntary Reduction of Revolving Loan
Commitments. Upon at least three (3) Business Days' prior
telephonic notice (promptly confirmed in writing) to the
Administrative Agent, Borrower shall have the right, without
premium or penalty, to terminate the Revolving Loan Commitments,
in part or in whole, provided that (i) any such termination shall
apply to proportionately and permanently reduce the Revolving
Loan Commitments of each of the Lenders, (ii) any partial
termination pursuant to this Section 2.03 shall be in an amount
of at least $1,000,000 and integral multiples of $100,000, and
(iii) no such reduction shall be permitted if prohibited or
without payment of all costs required to be paid hereunder with
respect to a prepayment. If the aggregate outstanding amount of
the Revolving Loans exceeds the amount of the Revolving Loan
Commitments as so reduced, Borrower shall immediately repay the
Revolving Loans by an amount equal to such excess, together with
all accrued but unpaid interest on such excess amount and any
amounts due under Section 4.12 hereof.
ARTICLE III
LINE OF CREDIT LOANS
Section 3.01. Line of Credit Loan Commitment; Use of
Proceeds.
(a) Subject to and upon the terms and conditions
herein set forth, each Lender severally agrees to make to
Borrower from time to time on and after the Closing Date, but
prior to August 31, 1997 (the "Line of Credit Maturity Date"),
Line of Credit Loans in an aggregate amount outstanding at any
time not to exceed such Lender's Line of Credit Loan Commitment.
The period between the Closing Date and the Line of Credit
Maturity Date shall be called the "Line of Credit Commitment
Period." Borrower may, on and before two hundred ten (210) days
prior to the Line of Credit Maturity Date, as it may from time to
time exist, request in writing an extension of the Line of Credit
Maturity Date and Line of Credit Commitment Period. The Lenders
may, in the exercise of their sole discretion extend the Line of
Credit Commitment Period and the Line of Credit Maturity Date for
an additional one hundred eighty (180) days. The Lender shall
notify the Borrower in writing of such election no later than one
hundred eighty (180) days prior to the Line of Credit Maturity
Date. In the event a Lender elects not to extend the Line of
Credit Commitment Period, the Total Commitment and the Line of
Credit Commitment will be reduced at the maturity thereof by the
amount of the Line of Credit Commitment of such Lender. Failure
to respond by a Lender shall be deemed to be an election not to
extend the Line of Credit Commitment Period. Borrower shall repay
all Loans made by such Lender as and when due. Neither the
Commitment nor the Loans outstanding of Lenders other than such
Lender shall be reduced or in any other manner affected by such
Lender's decision not to extend the Line of Credit Commitment
Period.
(b) Each Line of Credit Loan shall, at the option of
Borrower, be made or continued as, or converted into, part of one
or more Borrowings that shall consist entirely of Syndicate Line
of Credit Advances (as Base Rate Advances, CD Rate Advances, or
Eurodollar Advances) or Competitive Bid Rate Line of Credit
Advances. The aggregate principal amount of each Borrowing of
Line of Credit Loans shall be not less than $2,000,000 or a
greater integral multiple of $100,000, provided that each
Borrowing of Line of Credit Loans comprised of Base Rate Advances
shall be not less than $250,000 or a greater integral multiple of
$10,000. At no time shall the number of Borrowings outstanding
under this Article III exceed six; provided that, for the purpose
of determining the number of Borrowings outstanding and the
minimum amount for Borrowings resulting from conversions or
continuations, all Borrowings of Base Rate Advances under this
Facility shall be considered as one Borrowing. The parties
hereto agree that (i) the aggregate principal balance of the Line
of Credit Loans (including the Competitive Bid Rate Line of
Credit Loans) of the Lenders as a group shall not exceed the
Total Line of Credit Commitments, (ii) no Lender shall be
obligated to make Syndicate Line of Credit Loans in excess of the
Commitment of such Lender, (iii) no Lender shall be obligated
hereunder to extend Competitive Bid Rate Line of Credit Loans or
to make quotes for such Loans, (iv) a Bank may elect, in its
discretion, to extend Competitive Bid Rate Line of Credit Loans
which, either alone or together with the Syndicate Loans of such
Bank, exceed the Commitment of such Lender and (v) the
Competitive Bid Rate Line of Credit Loans (if any) extended by a
Bank shall reduce the Commitment of such Bank by the amount of
such Competitive Bid Rate Line of Credit Loans so extended (but
not below zero).
(c) The proceeds of Line of Credit Loans shall be used
solely for the following purpose: to provide capacity for the
payment of commercial paper issued by Borrower from time to time
pursuant to the Borrower's unrated commercial paper program at
SunTrust Bank, Atlanta. Line of Credit Loans plus the amount of
all commercial paper issued by Borrower may not at any one time
exceed fifty million dollars ($50,000,000.).
Section 3.02. Notes; Repayment of Principal.
(a) Borrower's obligations to pay the principal of,
and interest on, the Syndicate Line of Credit Loans and the
Competitive Bid Line of Credit Loans to each Lender shall be evi
denced by the records of the Agent and such Lender and by the
Syndicate Line of Credit Note and the Competitive Bid Line of
Credit Note payable to such Lender (or the assignor of such
Lender) completed in conformity with this Agreement.
(b) All outstanding principal amounts under the Line
of Credit Loans shall be due and payable at the earlier of (i)
Line of Credit Maturity Date or (ii) acceleration of the
indebtedness as provided in the Line of Credit Note.
Section 3.03. Voluntary Reduction of Loan Commitments.
Upon at least three (3) Business Days' prior telephonic notice
(promptly confirmed in writing) to the Administrative Agent,
Borrower shall have the right, without premium or penalty, to
terminate the Line of Credit Loan Commitments, in part or in
whole, provided that (i) any such termination shall apply to
proportionately and permanently reduce the Line of Credit Loan
Commitments of each of the Lenders, (ii) any partial termination
pursuant to this Section 3.03 shall be in an amount of at least
$1,000,000 and integral multiples of $100,000, and (iii) no such
reduction shall be permitted if prohibited or without payment of
all costs required to be paid hereunder with respect to a
prepayment. If the aggregate outstanding amount of the Line of
Credit Loans exceeds the amount of the Line of Credit Loan
Commitments as so reduced, Borrower shall immediately repay the
Line of Credit Loans by an amount equal to such excess, together
with all accrued but unpaid interest on such excess amount and
any amounts due under Section 4.12 hereof.
Section 3.04. Term Loans.
(a) Subject to and upon the terms and conditions
herein set forth, on a Conversion Date of a Line of Credit Loan,
provided that there exists no Default or Event of Default,
Borrower may satisfy its obligation to repay the principal
amount of a then outstanding Line of Credit Loan by executing and
delivering to the respective Syndicate Line of Credit Lender or
Competitive Bid Line of Credit Lender a Syndicate Term Note or a
Competitive Bid Term Note, as the case may be, in accordance with
the provisions of paragraph (b) below.
(b) Each Syndicate Term Note and Competitive Bid Term
Note shall be dated the applicable Conversion Date, shall be
payable to the applicable Lender in a principal amount equal to
such Lender's Line of Credit Advances outstanding on the
applicable Conversion Date.
(c) Upon at least three (3) Business Days' prior
telephonic notice (promptly confirmed in writing) to the
Administrative Agent, Borrower shall have the right, without
premium or penalty, to terminate the Term Loans, in part or in
whole, provided that (i) any such termination shall apply to
proportionately and permanently reduce the Term Loans of each of
the Lenders, (ii) any partial termination pursuant to this
Section 3.04 shall be in an amount of at least $1,000,000 and
integral multiples of $100,000, (iii) any such terminations shall
be applied to installments of principal in inverse order of
maturity, and (iv) no such reduction shall be permitted if
prohibited or without payment of all costs required to be paid
hereunder with respect to a prepayment. If the aggregate
outstanding amount of the Term Loans exceeds the amount of the
Line of Credit Loan Commitments as so reduced, Borrower shall
immediately repay the Term Loans by an amount equal to such
excess, together with all accrued but unpaid interest on such
excess amount and any amounts due under Section 4.12 hereof.
Section 3.05. Repayment of Principal of Term Loans.
Borrower shall repay each respective Term Loan two (2) years from
the applicable Conversion Date.
ARTICLE IV
GENERAL LOAN TERMS
Section 4.01. Funding Notices.
(a) (i) Whenever Borrower desires to make a Borrowing
with respect to the Syndicate Revolving Loan Commitments or the
Syndicate Line of Credit Commitments (other than one resulting
from a conversion or continuation pursuant to Section
4.01(b)(i)), it shall give the Administrative Agent prior written
notice (or telephonic notice promptly confirmed in writing) of
such Borrowing (a "Notice of Borrowing"), such Notice of
Borrowing to be given prior to 11:00 A.M. (local time for the
Administrative Agent) at its Payment Office (x) one Business Day
prior to the requested date of such Borrowing in the case of Base
Rate Advances, (y) two Business Days prior to the requested date
of such Borrowing in the case of CD Rate Advances, and (z) three
Business Days prior to the requested date of such Borrowing in
the case of Eurodollar Advances. Notices received after 11:00
A.M. shall be deemed received on the next Business Day. Each
Notice of Borrowing shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing, the date of
Borrowing (which shall be a Business Day), and whether the
Borrowing is to consist of Base Rate Advances, CD Rate Advances
or Eurodollar Advances and (in the case of Fixed Rate Advances)
the Interest Period to be applicable thereto.
(ii) Whenever Borrower desires to make a Borrowing
under the Competitive Bid Revolving Loan Commitment or the
Competitive Bid Line of Credit Commitment (other than one
resulting from a conversion or continuation pursuant to Section
4.01(b)(ii)), it shall give the Lenders notice that the Lenders
are requested to provide Competitive Bid Rates for Interest
Periods identified by Borrower. Notices must comply with notice
requirements of each respective Lender, which shall be
communicated by Lenders to Borrower from time to time. Each
Lender in its discretion may, but shall not be obligated to,
submit a quote to the Borrower in connection with such request.
The Borrower shall then be entitled, in its sole discretion, to
elect to incur all or any part of the Competitive Bid Rate Loan
offered by one or more of the Lenders that have elected to
provide quotes for any of the Interest Periods and at the rate(s)
quoted by such Lender(s). The Competitive Bid Rate Loans
incurred by the Borrower in connection with such a request for
quotes shall not exceed (i) with respect to all Lenders then
providing quotes, the then unutilized Commitment of all Lenders
as a group, and (ii) with respect to each Lender providing a
quote, the amount bid by such Lender in connection with such
Lender's quote. The Borrower shall notify the Administrative
Agent and such Lender or Lenders of its election in accordance
with the procedures established with such Lender or Lenders,
having no obligation to report the terms thereof.
(b) (i) Whenever Borrower desires to convert all or a
portion of an outstanding Borrowing under the Syndicate Revolving
Credit Commitments, the Syndicate Line of Credit Commitments, or
constituting a portion of a Syndicate Term Loan, which Borrowing
consists of Base Rate Advances, CD Rate Advances or Eurodollar
Advances, into one or more Borrowings consisting of Advances of
another Type, or to continue outstanding a Borrowing consisting
of CD Rate Advances or Eurodollar Advances for a new Interest
Period, it shall give the Administrative Agent at least two
Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each such Borrowing being
converted into or continued as CD Rate Advances, and at least
three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each such Borrowing to be
converted into or continued as Eurodollar Advances. Such notice
(a "Notice of Conversion/Continuation") shall be given prior to
11:00 A.M. (local time for the Administrative Agent) on the date
specified at the Payment Office of the Administrative Agent.
Each such Notice of Conversion/Continuation shall be irrevocable
and shall specify the aggregate principal amount of the Advances
to be converted or continued, the date of such conversion or
continuation, whether the Advances are being converted into or
continued as CD Rate Advances or Eurodollar Advances and (in the
case of Fixed Rate Advances) the Interest Period applicable
thereto. If, upon the expiration of any Interest Period in
respect of any Borrowing, Borrower shall have failed to deliver
the Notice of Conversion/Continuation, Borrower shall be deemed
to have elected to convert or continue such Borrowing to a
Borrowing consisting of Base Rate Advances. So long as any
Executive Officer of Borrower has knowledge that any Default or
Event of Default shall have occurred and be continuing, no
Borrowing may be converted into or continued as (upon expiration
of the current Interest Period) Fixed Rate Advances unless the
Administrative Agent and each of the Lenders shall have otherwise
consented in writing. No conversion of any Borrowing of Fixed
Rate Advances shall be permitted except on the last day of the
Interest Period in respect thereof.
(ii) Whenever Borrower desires to convert all or a
portion of an outstanding Borrowing under the Competitive Bid
Revolving Credit Commitment, the Competitive Bid Line of Credit
Commitment, or constituting a portion of a Competitive Bid Term
Loan, which Borrowing consists of Base Rate Advances or
Eurodollar Advances, into one or more Borrowings consisting of
another Type, or to continue outstanding a Borrowing consisting
of Eurodollar Advances for a new Interest Period, it may request
that the Lenders provide quotes for Competitive Bid Rates in the
same manner prescribed in Section 4.01(a)(1) for funding. If,
upon the expiration of any Interest Period in respect of any
Competitive Bid Borrowing, Borrower shall have failed to deliver
the Notice of Continuation/Conversion, or Lenders fail to provide
such quotes, Borrower shall be deemed to have elected to convert
or continue such Borrowing to a Borrowing consisting of Base Rate
Advances. So long as any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into or
continued as (upon expiration of the current Interest Period)
Eurodollar Advances. No conversion of any Borrowing into
Eurodollar Advances shall be permitted except on the last day of
the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation
to confirm in writing any telephonic notice, the Administrative
Agent and the Lenders may act without liability upon the basis
of telephonic notice believed by the Administrative Agent or the
Lender in good faith to be from Borrower prior to receipt of
written confirmation. In each such case, Borrower hereby waives
the right to dispute the Administrative Agent's and the Lender's
record of the terms of such telephonic notice.
(d) The Administrative Agent shall promptly give each
Lender notice by telephone (confirmed in writing) or by telex,
telecopy or facsimile transmission of the matters covered by the
notices given to the Administrative Agent pursuant to this
Section 4.01 with respect to the Revolving Credit Commitments,
the Line of Credit Commitments, and Term Loans.
Section 4.02. Disbursement of Funds.
(a) No later than 11:00 A.M. (local time for the
Administrative Agent) on the date of each Borrowing pursuant to
the Revolving Loan Commitments or the Line of Credit Commitments
(other than one resulting from a conversion or continuation
pursuant to Section 5.01(b)(i)), each Lender will make available
its Pro Rata Share of the amount of such Borrowing in immediately
available funds at the Payment Office of the Administrative
Agent. The Administrative Agent will make available to Borrower
the aggregate of the amounts (if any) so made available by the
Lenders to the Administrative Agent in a timely manner by cred
iting such amounts to Borrower's demand deposit account main
tained with the Administrative Agent or at Borrower's option, to
effect a wire transfer of such amounts to Borrower's account
specified by the Borrower, by the close of business on such
Business Day. In the event that the Lenders do not make such
amounts available to the Administrative Agent by the time
prescribed above, but such amount is received later that day,
such amount may be credited to Borrower in the manner described
in the preceding sentence on the next Business Day (with interest
on such amount to begin accruing hereunder on such next Business
Day).
(b) No later than 1:00 P.M. (local time for the
Competitive Bid Lender) on the date of each Borrowing with
respect to the Competitive Bid Loan Commitments (other than one
resulting from a conversion or continuation pursuant to Section
5.01(b)(ii)), the Competitive Bid Lender will make available the
amount of such Borrowing in immediately available funds at its
Payment Office on the date of each Borrowing pursuant to the
Revolving Credit or Line of Credit Loan Commitments (other than
one resulting from a conversion or continuation pursuant to
Section 5.01(b)(ii)).
(c) Unless the Administrative Agent shall have been
notified by any Syndicate Lender prior to the date of a Borrowing
that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of the Borrowing to be
made on such date, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent
on such date and the Administrative Agent may make available to
Borrower a corresponding amount. If such corresponding amount is
not in fact made available to the Administrative Agent by such
Lender on the date of Borrowing, the Administrative Agent shall
be entitled to recover such corresponding amount on demand from
such Lender together with interest at the Federal Funds Rate. If
such Lender does not pay such corresponding amount forthwith upon
the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify Borrower, and Borrower shall
immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for the Bor
rowing. Nothing in this subsection shall be deemed to relieve
any Lender from its obligation to fund its Commitments hereunder
or to prejudice any rights which Borrower may have against any
Lender as a result of any default by such Lender hereunder.
(d) All Borrowings under the Syndicate Revolving Loan
and Line of Credit Commitments shall be loaned by the Lenders on
the basis of their Pro Rata Share of the Revolving Loan
Commitments. All Borrowings under the Competitive Bid Loan
Commitments shall be loaned by the Lenders whose quotes were
accepted by the Borrower. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and
each Lender shall be obligated to make the Loans provided to be
made by it hereunder, regardless of the failure of any other
Lender to fund its Commitments hereunder.
Section 4.03. Interest.
(a) Borrower agrees to pay interest in respect of all
unpaid principal amounts of the Revolving Loans, Line of Credit
Loans and Term Loans from the respective dates such principal
amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at rates per annum (on the
basis of a 360-day year) equal to the applicable rates indicated
below:
(i) For Base Rate Advances--The Base Rate in
effect from time to time;
(ii) For CD Rate Advances--The relevant CD Rate
plus the Applicable Margin; and
(iii) For Eurodollar Advances--The relevant
Adjusted LIBO Rate plus the Applicable Margin.
(b) Borrower agrees to pay interest in respect of all
unpaid principal amounts of the Competitive Bid Loans made to
Borrower from the respective dates such principal amounts were
advanced to maturity (whether by acceleration, notice of pre
payment or otherwise) at times and at rates per annum equal to
the applicable rates agreed upon between Borrower and the
respective Competitive Bid Lender.
(c) Overdue principal and, to the extent not
prohibited by applicable law, overdue interest, in respect of the
Revolving Loans, Line of Credit Loans, and Term Loans whether
Syndicate Loans or Competitive Bid Loans, and all other overdue
amounts owing hereunder, shall bear interest from each date that
such amounts are overdue:
(i) in the case of overdue principal and interest
with respect to all Loans outstanding as Fixed Rate
Advances, at the rate otherwise applicable for the then-
current Interest Period plus an additional two percent
(2.0%) per annum; thereafter at the rate in effect for
Base Rate Advances plus an additional two percent
(2.0%) per annum; and
(ii) in the case of overdue principal and interest
with respect to all other Loans outstanding as Base
Rate Advances, and all other Obligations hereunder
(other than Loans), at a rate equal to the applicable
Base Rate plus an additional two percent (2.0%) per
annum;
provided that no Loan shall bear interest after maturity, whether
by non-payment at scheduled due date, acceleration, notice of
prepayment or otherwise at a rate per annum less than two percent
(2.0%) per annum in excess of the rate of interest applicable
thereto at maturity.
(d) Interest on each Loan shall accrue from and
including the date of such Loan to but excluding the date of any
repayment thereof; provided that, if a Loan is repaid on the same
day made, one day's interest shall be paid on such Loan.
Interest on all outstanding Base Rate Advances shall be payable
quarterly in arrears on the last calendar day of each calendar
quarter of Borrower in each year. Interest on all outstanding
Fixed Rate Advances shall be payable on the last day of each
Interest Period applicable thereto, and, in the case of Fixed
Rate Advances having an Interest Period in excess of 90 days (in
the case of CD Rate Advances) or three months (in the case of
Eurodollar Advances), on each day which occurs every 90 days or 3
months, as the case may be, after the initial date of such
Interest Period. Interest on all Loans shall be payable on any
conversion of any Advances comprising such Loans into Advances of
another Type, prepayment (on the amount prepaid), at maturity
(whether by acceleration, notice of prepayment or otherwise) and,
after maturity, on demand.
(e) The Administrative Agent, upon determining the CD
Rate or Adjusted LIBO Rate for any Interest Period, shall
promptly notify by telephone (confirmed in writing) or in writing
Borrower and the other Lenders. Any such determination shall,
absent manifest error, be final, conclusive and binding for all
purposes. A Competitive Bid Lender has no obligation to notify
any other Lender of the interest rates charged to Borrower.
Section 4.04. Interest Periods. (a) In connection
with the making or continuation of, or conversion into, each
Syndicate Borrowing of Fixed Rate Advances, Borrower shall select
an interest period (each an "Interest Period") to be applicable
to such Fixed Rate Advances, which Interest Period shall (x) in
the case of CD Rate Advances, be either a 30, 60, 90 or 180 day
period, and (y) in the case of Eurodollar Advances, be either a
1, 2, 3 or 6 month period; provided that:
(i) The initial Interest Period for any Borrowing
of Fixed Rate Advances shall commence on the date of
such Borrowing (including the date of any conversion
from a Borrowing consisting of Advances 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 expire
on a day which is not a Business Day, such Interest
Period shall expire on the next succeeding Business
Day, provided that if any Interest Period in respect of
Eurodollar Advances would otherwise expire on a day
that is not a Business Day but is a day of the month
after which no further Business Day occurs in such
month, such Interest Period shall expire on the next
preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar
Advances which begins on a day for which there is no
numerically corresponding day in the calendar month at
the end of such Interest Period shall, subject to part
(iv) below, expire on the last Business Day of such
calendar month;
(iv) No Interest Period shall extend beyond any
date upon which any principal payment is due with
respect to the Revolving Credit, Line of Credit Loans,
or Term Loans.
(b) When it requests a Lender to make a quote for a
Competitive Bid Rate Loan, the Borrower shall specify to such
Lender the Interest Period to be applicable to such Loan, which
Interest Period shall be as agreed upon by the Borrower and such
Lender; provided, however, that (i) no Interest Period shall
extend beyond the maturity date of the Revolving Credit Loan
Commitment or the Line of Credit Commitment and (ii) if any
Interest Period would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next
succeeding Business Day. Interest shall be payable in respect of
each Competitive Bid Rate Loan on the last day of each Interest
Period applicable to such Competitive Bid Rate Loan, and at
maturity (whether by acceleration or otherwise).
Section 4.05. Fees.
(a) Borrower shall pay to the Agent, for the account
of and distribution of the respective Pro Rata Share to each
Lender, a commitment fee for the period commencing on the Closing
Date to and including the Termination Date, computed at a rate
equal to one-fourth of one percent (0.25%) per annum on the
average daily unused portion of the Revolving Loan Commitments of
such Lenders, such fee being payable quarterly in arrears on the
last calendar day of each fiscal quarter of Borrower and on the
Termination Date.
(b) Borrower shall pay to the Agent, for the account
of and distribution of the respective Pro Rata Share to each
Lender, a commitment fee for the period commencing on the Closing
Date to and including the sooner of the Line of Credit Maturity
Date, computed at a rate equal to one-eighth of one percent
(0.125%) per annum on the average daily unused portion of the
Line of Credit Loan Commitment of such Lender, such fee being
payable quarterly in arrears on the last calendar day of each
fiscal quarter of Borrower, and on the Line of Credit Maturity
Date.
(c) Borrower shall pay to the Agent an annual
administrative fee, in advance, in the respective amount and on
the dates previously agreed in writing by Borrower with the
Agent.
Section 4.06. Voluntary Prepayments of Borrowings.
(a) Borrower may, at its option, prepay Borrowings
consisting of Base Rate Advances at any time in whole, or from
time to time in part, in amounts aggregating $250,000 or any
greater integral multiple of $10,000, by paying the principal
amount to be prepaid together with interest accrued and unpaid
thereon to the date of prepayment. Those Borrowings consisting
of Fixed Rate Advances may be prepaid, at Borrower's option, in
whole, or from time to time in part, in the respective minimum
amounts and multiples set forth in Section 2.01(b) with respect
to the Revolving Loan Commitments and Section 3.01(b) with
respect to the Line of Credit Loans, which shall apply also to
Term Loans, by paying the principal amount to be prepaid,
together with interest accrued and unpaid thereon to the date of
prepayment, and all compensation payments pursuant to
Section 4.12 if such prepayment is made on a date other than the
last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with
Section 4.06(c) below.
(b) Borrower shall give written notice (or telephonic
notice confirmed in writing) to the Administrative Agent of any
intended prepayment of the Revolving Loans, Line of Credit Loans,
or Term Loans (i) not less than one Business Day prior to any
prepayment of Base Rate Advances, (ii) not less than two Business
Days prior to any prepayment of CD Rate Advances, and (iii) not
less than three Business Days prior to any prepayment of
Eurodollar Advances. Borrower shall give written notice (or
telephonic notice confirmed in writing) to the respective
Competitive Bid Lender of any intended prepayment of the
Competitive Bid Loans (i) not less than one Business Day prior to
any prepayment of Base Rate Advances, and (ii) not less than
three Business Days prior to any prepayment of Eurodollar
Advances. Such notice, once given, shall be irrevocable. Upon
receipt of such notice of prepayment pursuant to the first
sentence of this paragraph (b), the Administrative Agent shall
promptly notify each Lender of the contents of such notice and of
such Lender's share of such prepayment.
(c) Borrower, when providing notice of prepayment
pursuant to Section 4.06(b) may designate the Types of Advances
and the specific Borrowing or Borrowings which are to be prepaid,
provided that (i) if any prepayment of Fixed Rate Advances made
pursuant to a single Borrowing of the Revolving Loans, Line of
Credit Loans, or Term Loans shall reduce the outstanding Advances
made pursuant to such Borrowing to an amount less than
$1,000,000, such Borrowing shall immediately be converted into
Base Rate Advances; and (ii) each prepayment made pursuant to a
single Borrowing shall be applied pro rata among the Loans com
prising such Borrowing, if such prepayment is not a prepayment of
a Competitive Bid Loan. All voluntary prepayments shall be
applied to the payment of any unpaid interest before application
to principal.
Section 4.07. Payments, etc.
(a) (i) Except as otherwise specifically provided
herein, all payments under this Agreement and the other Credit
Documents, other than the payments specified in clause (ii)
below, shall be made without defense, set-off or counterclaim to
the Administrative Agent, not later than 1:00 P.M. (local time
for the Administrative Agent) on the date when due and shall be
made in Dollars in immediately available funds at the respective
Payment Office.
(ii) Except as otherwise specifically provided herein,
all payments under this Agreement with respect to the Competitive
Bid Lenders shall be made without defense, set-off or
counterclaim to the respective Competitive Bid Lender at its
Payment Office not later than 11:00 A.M. (local time for such
Competitive Bid Lender) on the date when due and in immediately
available funds, or at any other location of the Competitive Bid
Lender as the Competitive Bid Lender may specify in writing to
Borrower not later than Noon (local time for the Competitive Bid
Lender) on the Business Day such payment is due.
(b) (i) All such payments shall be made free and
clear of and without deduction or withholding for any Taxes in
respect of this Agreement, the Notes or other Credit Documents,
or any payments of principal, interest, fees or other amounts
payable hereunder or thereunder (but excluding any Taxes imposed
on the overall net income of the Lenders pursuant to the laws of
the jurisdiction in which the principal executive office or
appropriate Lending Office of such Lender is located). If any
Taxes are so levied or imposed, Borrower agrees (A) to pay the
full amount of such Taxes, and such additional amounts as may be
necessary so that every net payment of all amounts due hereunder
and under the Notes and other Credit Documents, after withholding
or deduction for or on account of any such Taxes (including
additional sums payable under this Section 4.07), will not be
less than the full amount provided for herein had no such
deduction or withholding been required, (B) to make such
withholding or deduction and (C) to pay the full amount deducted
to the relevant authority in accordance with applicable law.
Borrower will furnish to the Agent and each Lender, within 30
days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts evidencing such
payment by Borrower. Borrower will indemnify and hold harmless
the Agent and each Lender and reimburse the Agent and each Lender
upon written request for the amount of any Taxes so levied or
imposed and paid by the Agent or Lender and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes were correctly or
illegally asserted. A certificate as to the amount of such
payment by such Lender or the Agent, absent manifest error, shall
be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of
any jurisdiction other than the United States of America or any
State thereof (including the District of Columbia) agrees to
furnish to Borrower and the Agent, prior to the time it becomes a
Lender hereunder, two copies of either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or
any successor forms thereto (wherein such Lender claims
entitlement to complete exemption from or reduced rate of U.S.
Federal withholding tax on interest paid by Borrower hereunder)
and to provide to Borrower and the Agent a new Form 4224 or Form
1001 or any successor forms thereto if any previously delivered
form is found to be incomplete or incorrect in any material
respect or upon the obsolescence of any previously delivered
form; provided, however, that no Lender shall be required to
furnish a form under this paragraph (ii) if it is not entitled to
claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an
exemption from or a reduced rate of withholding under applicable
law, promptly upon written request of Borrower, shall so inform
Borrower in writing.
(c) Subject to Section 4.04(ii), whenever any payment
to be made hereunder or under any Note shall be stated to be due
on a day which is not a Business Day, the due date thereof shall
be extended to the next succeeding Business Day and, with respect
to payments of principal, interest thereon shall be payable at
the applicable rate during such extension.
(d) On other than Competitive Bid Rate Loans, which
shall be negotiated from time to time, all computations of
interest and fees shall be made on the basis of a year of 360
days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis
of days elapsed), except that interest on Base Rate Advances
shall be computed on the basis of a year of 360 days for the
actual number of days. Interest on Base Rate Advances shall be
calculated based on the Base Rate from and including the date of
such Loan to but excluding the date of the repayment or
conversion thereof. Interest on Fixed Rate Advances shall be
calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof. Each
determination by the Agent or the Competitive Bid Lender of an
interest rate or fee hereunder shall be made in good faith and,
except for manifest error, shall be final, conclusive and binding
for all purposes.
(e) Payment by Borrower to the Administrative Agent in
accordance with the terms of this Agreement shall, as to
Borrower, constitute payment to the Lenders under this Agreement.
Section 4.08. Interest Rate Not Ascertainable, etc.
In the event that the Administrative Agent, in the case of the
Adjusted LIBO Rate or the CD Rate, shall have determined (which
determination shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all parties)
that on any date for determining the Adjusted LIBO Rate or the CD
Rate for any Interest Period, by reason of any changes arising
after the date of this Agreement affecting the London interbank
market or the United States secondary certificate of deposit
market, as the case may be, or the Administrative Agent's
position in such markets, adequate and fair means do not exist
for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted LIBO Rate or CD Rate,
as the case may be, then, and in any such event, the
Administrative Agent shall forthwith give notice (by telephone
confirmed in writing) to Borrower and to the Lenders of such
determination and a summary of the basis for such determination.
Until the Administrative Agent notifies Borrower that the
circumstances giving rise to the suspension described herein no
longer exist, the obligations of the Lenders to make or permit
portions of the Revolving Loans, Line of Credit Loans, or Term
Loans to remain outstanding past the last day of the then current
Interest Periods as CD Rate Advances or Eurodollar Advances, as
the case may be, shall be suspended, and such affected Advances
shall bear the same interest as Base Rate Advances.
Section 4.09. Illegality.
(a) In the event that any Lender shall have determined
(which determination shall be made in good faith and, absent
manifest error, shall be final, conclusive and binding upon all
parties) at any time that the making or continuance of any Fixed
Rate Advance has become unlawful by compliance by such Lender in
good faith with any applicable law, governmental rule,
regulation, guideline or order (whether or not having the force
of law and whether or not failure to comply therewith would be
unlawful), then, in any such event, the Lender shall give prompt
notice (by telephone confirmed in writing) to Borrower and to the
Agent of such determination and a summary of the basis for such
determination (which notice the Agent shall promptly transmit to
the other Lenders).
(b) Upon the giving of the notice to Borrower referred
to in subsection (a) above, (i) Borrower's right to request and
such Lender's obligation to make CD Rate Advances or Eurodollar
Advances as the case may be, shall be immediately suspended, and
such Lender shall make an Advance as part of the requested Borrow
ing of CD Rate Advances or Eurodollar Advances as the case may
be, as a Base Rate Advance, provided, Borrower does not negotiate
a Competitive Bid Rate Loan, which Base Rate Advance shall, for
all other purposes, be considered part of such Borrowing, and
(ii) if the affected Fixed Rate Advance or Advances are then
outstanding, Borrower shall immediately, or if permitted by
applicable law, no later than the date permitted thereby, upon at
least one Business Day's written notice to the Agent and the
affected Lender, convert each such Advance into an Advance or
Advances of a different Type with an Interest Period ending on
the date on which the Interest Period applicable to the affected
Fixed Rate Advances expires, provided that if more than one
Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 4.09(b).
Section 4.10. Increased Costs.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any
change by way of imposition or increase of reserve requirements)
in or in the interpretation of any law or regulation, or (y) the
compliance with any guideline or request from any central bank or
other governmental authority or quasi-governmental authority
exercising control over banks or financial institutions generally
(whether or not having the force of law):
(i) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with
respect to its Fixed Rate Advances or its obligation to
make Fixed Rate Advances, or the basis of taxation of
payments to any Lender of the principal of or interest
on its Fixed Rate Advances or its obligation to make
Fixed Rate Advances shall have changed (except for
changes in the tax on the overall net income of such
Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive
office or applicable Lending Office is located); or
(ii) any reserve (including, without limitation,
any imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of,
or credit extended by, any Lender's applicable Lending
Office shall be imposed or deemed applicable or any
other condition affecting its Fixed Rate Advances or
its obligation to make Fixed Rate Advances shall be
imposed on any Lender or its applicable Lending Office
or the London interbank market or the United States
secondary certificate of deposit market;
and as a result thereof there shall be any increase in the
cost to such Lender of agreeing to make or making, funding
or maintaining Fixed Rate Advances (except to the extent
already included in the determination of the applicable CD
Rate for CD Rate Advances or the applicable Adjusted LIBO
Rate for Eurodollar Advances), or there shall be a reduction
in the amount received or receivable by such Lender or its
applicable Lending Office, then Borrower shall from time to
time (subject, in the case of certain Taxes, to the
applicable provisions of Section 4.07(b)), upon written
notice from and demand by such Lender on Borrower (with a
copy of such notice and demand to the Agent), pay to the
Administrative Agent for the account of such Lender within
five Business Days after the date of such notice and demand,
additional amounts sufficient to indemnify such Lender
against such increased cost. A certificate as to the amount
of such increased cost, submitted to Borrower and the Agent
by such Lender in good faith and accompanied by a statement
prepared by such Lender describing in reasonable detail the
basis for and calculation of such increased cost, shall,
except for manifest error, be final, conclusive and binding
for all purposes.
(b) If any Lender shall advise the Agent that at
any time, because of the circumstances described in clauses
(x) or (y) in Section 4.10(a) or any other circumstances
beyond such Lender's reasonable control arising after the
date of this Agreement affecting such Lender or the London
interbank market or the United States secondary certificate
of deposit market or such Lender's position in such markets,
the Adjusted LIBO Rate or the CD Rate, as the case may be,
as determined by the Agent, will not adequately and fairly
reflect the cost to such Lender of funding its Fixed Rate
Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by
telephone confirmed in writing) to Borrower and to the
other Lenders of such advice;
(ii) Borrower's right to request and such Lender's
obligation to make or permit portions of the Loans to
remain outstanding past the last day of the then
current Interest Periods as CD Rate Advances or
Eurodollar Advances, as the case may be, shall be
immediately suspended; and
(iii) such Lender shall make a Loan as part of the
requested Borrowing of CD Rate Advances or Eurodollar
Advances, as the case may be, as a Base Rate Advance,
which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
Section 4.11. Lending Offices.
(a) Each Lender agrees that, if requested by
Borrower, it will use reasonable efforts (subject to overall
policy considerations of such Lender) to designate an
alternate Lending Office with respect to any of its Fixed
Rate Advances affected by the matters or circumstances
described in Sections 4.07(b), 4.08, 4.09 or 4.10 to reduce
the liability of Borrower or avoid the results provided
thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender,
which determination if made in good faith, shall be
conclusive and binding on all parties hereto. Nothing in
this Section 4.11 shall affect or postpone any of the
obligations of Borrower or any right of any Lender provided
hereunder.
(b) If any Lender that is organized under the
laws of any jurisdiction other than the United States of
America or any State thereof (including the District of
Columbia) issues a public announcement with respect to the
closing of its lending offices in the United States such
that any withholdings or deductions and additional payments
with respect to Taxes may be required to be made by Borrower
thereafter pursuant to Section 4.07(b), such Lender shall
use reasonable efforts to furnish Borrower notice thereof as
soon as practicable thereafter; provided, however, that no
delay or failure to furnish such notice shall in any event
release or discharge Borrower from its obligations to such
Lender pursuant to Section 4.07(b) or otherwise result in
any liability of such Lender.
Section 4.12. Funding Losses. Borrower shall
compensate each Lender, upon its written request to Borrower
(which request shall set forth the basis for requesting such
amounts in reasonable detail and which request shall be made
in good faith and, absent manifest error, shall be final,
conclusive and binding upon all of the parties hereto), for
all losses, expenses and liabilities (including, without
limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Fixed Rate
Advances, in either case to the extent not recovered by such
Lender in connection with the re-employment of such funds
and including loss of anticipated profits), which the Lender
may sustain: (i) if for any reason (other than a default by
such Lender) a borrowing of, or conversion to or
continuation of, Fixed Rate Advances to Borrower does not
occur on the date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether or
not withdrawn), (ii) if any repayment (including mandatory
prepayments and any conversions pursuant to Section 4.09(b))
of any Fixed Rate Advances to Borrower occurs on a date
which is not the last day of an Interest Period applicable
thereto, or (iii), if, for any reason, Borrower defaults in
its obligation to repay its Fixed Rate Advances when
required by the terms of this Agreement.
Section 4.13. Assumptions Concerning Funding of
Fixed Rate Advances. Calculation of all amounts payable to
a Lender under this Article IV shall be made as though that
Lender had actually funded its relevant Fixed Rate Advances
through the purchase of deposits in the relevant market
bearing interest at the rate applicable to such Fixed Rate
Advances in an amount equal to the amount of the Fixed Rate
Advances and having a maturity comparable to the relevant
Interest Period and, in the case of Eurodollar Advances,
through the transfer of such Eurodollar Advances from an
offshore office of that Lender to a domestic office of that
Lender in the United States of America; provided however,
that each Lender may fund each of its Fixed Rate Advances in
any manner it sees fit and the foregoing assumption shall be
used only for calculation of amounts payable under this
Article IV.
Section 4.14. Apportionment of Payments.
Aggregate principal and interest payments in respect of
Loans and payments in respect of facility fees and
commitment fees shall be apportioned among all outstanding
Commitments and Loans to which such payments relate,
proportionately to the Lenders' respective pro rata portions
of such Commitments and outstanding Loans. The
Administrative Agent shall promptly distribute to each
Lender at its payment office set forth beside its name on
the appropriate signature page hereof or such other address
as any Lender may request its share of all such payments
received by the Administrative Agent.
Section 4.15. Sharing of Payments, Etc. If any
Lender shall obtain any payment or reduction (including,
without limitation, any amounts received as adequate
protection of a deposit treated as cash collateral under the
Bankruptcy Code) of the Obligations (whether voluntary,
involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its pro rata portion of payments
or reductions on account of such obligations obtained by
all the Lenders, such Lender shall forthwith (i) notify each
of the other Lenders and Agent of such receipt, and (ii)
purchase from the other Lenders such participations in the
affected obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction,
net of costs incurred in connection therewith, ratably with
each of them, provided that if all or any portion of such
excess payment or reduction is thereafter recovered from
such purchasing Lender or additional costs are incurred, the
purchase shall be rescinded and the purchase price restored
to the extent of such recovery or such additional costs, but
without interest unless the Lender obligated to return such
funds is required to pay interest on such funds. Borrower
agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 4.15 may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the
direct creditor of Borrower in the amount of such participa
tion.
Section 4.16. Capital Adequacy. Without limiting
any other provision of this Agreement, in the event that any
Lender shall have determined that any law, treaty,
governmental (or quasi-governmental) rule, regulation,
guideline or order regarding capital adequacy not currently
in effect or fully applicable as of the Closing Date, or any
change therein or in the interpretation or application
thereof after the Closing Date, or compliance by such Lender
with any request or directive regarding capital adequacy not
currently in effect or fully applicable as of the Closing
Date (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) from a
central bank or governmental authority or body having
jurisdiction, does or shall have the effect of reducing the
rate of return on such Lender's capital as a consequence of
its obligations hereunder to a level below that which such
Lender could have achieved but for such law, treaty, rule,
regulation, guideline or order, or such change or compliance
(taking into consideration such Lender's policies with
respect to capital adequacy) by an amount deemed by such
Lender to be material, then within ten (10) Business Days
after written notice and demand by such Lender (with copies
thereof to the Agent), Borrower shall from time to time pay
to such Lender additional amounts sufficient to compensate
such Lender for such reduction (but, in the case of
outstanding Base Rate Advances, without duplication of any
amounts already recovered by such Lender by reason of an
adjustment in the applicable Base Rate). Each certificate
as to the amount payable under this Section 4.17 (which cer
tificate shall set forth the basis for requesting such
amounts in reasonable detail), submitted to Borrower by any
Lender in good faith, shall, absent manifest error, be
final, conclusive and binding for all purposes.
Section 4.17. Benefits to Guarantors. In
consideration for the execution and delivery by the
Guarantors of their Guaranty Agreement, Borrower agrees to
make the benefit of extensions of credit hereunder available
to the Guarantors.
Section 4.18. Limitation on Certain Payment
Obligations. (a) Each Lender or Agent shall make written
demand on Borrower for indemnification or compensation
pursuant to Section 4.07 no later than 90 days after the
earlier of (i) the date on which such Lender or Agent makes
payment of such Taxes, and (ii) the date on which the
relevant taxing authority or other governmental authority
makes written demand upon such Lender or Agent for payment
of such Taxes.
(b) Each Lender or Agent shall make written
demand on Borrower for indemnification or compensation
pursuant to Sections 4.12 and 4.13 no later than 90 days
after the event giving rise to the claim for indemnification
or compensation occurs.
(c) Each Lender or Agent shall make written
demand on Borrower for indemnification or compensation
pursuant to Sections 4.10 and 4.16 no later than 90 days
after such Lender or Agent receives actual notice or obtains
actual knowledge of the promulgation of a law, rule, order
or interpretation or occurrence of another event giving rise
to a claim pursuant to such sections.
(d) In the event that the Lenders or Agent fail
to give Borrower notice within the time limitations
prescribed in (a) or (b) above, Borrower shall not have any
obligation to pay such claim for compensation or indemni
fication. In the event that the Lender or Agent fail to
give Borrower notice within the time limitation prescribed
in (c) above, Borrower shall not have any obligation to pay
any amount with respect to claims accruing prior to the
ninetieth day preceding such written demand.
ARTICLE V.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to
Borrower hereunder and to accept a Term Note on a Conversion
Date is subject to the satisfaction of the following
conditions:
Section 5.01. Conditions Precedent to Initial
Loans. At the time of the making of the initial Loans
hereunder on the Closing Date, all obligations of Borrower
hereunder incurred prior to the initial Loans (including,
without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Agent and any
fees and expenses payable to the Agent and the Lenders as
previously agreed with Borrower), shall have been paid in
full, and the Administrative Agent shall have received the
following, in form and substance reasonably satisfactory in
all respects to the Administrative Agent:
(a) the duly executed counterparts of this
Agreement;
(b) the duly completed Revolving Notes evidencing
the Revolving Loan Commitments and the duly executed
Line of Credit Notes evidencing the Line of Credit
Commitment;
(c) the Guaranty Agreements;
(d) certificate of Borrower in substantially the
form of Exhibit H attached hereto and appropriately com
pleted;
(e) certificates of the Secretary or Assistant
Secretary of each of the Credit Parties attaching and
certifying copies of the resolutions of the boards of
directors of the Credit Parties, authorizing as
applicable the execution, delivery and performance of
the Credit Documents;
(f) certificates of the Secretary or an Assistant
Secretary of each of the Credit Parties certifying (i)
the name, title and true signature of each officer of
such entities executing the Credit Documents, (ii) the
bylaws or comparable governing documents of such
entities; and (iii) the certificate or articles of
incorporation of each Credit Party;
(g) certificates of good standing or existence,
as may be available from the Secretary of State of the
jurisdiction of incorporation or organization of such
Credit Party;
(h) copies of all documents and instruments,
including all consents, authorizations and filings,
required or advisable under any Requirement of Law or
by any material Contractual Obligation of the Credit
Parties, in connection with the execution, delivery,
performance, validity and enforceability of the Credit
Documents and the other documents to be executed and
delivered hereunder, and such consents, authorizations,
filings and orders shall be in full force and effect
and all applicable waiting periods shall have expired;
(i) certified copies of the Intercompany Loan
Documents, to the extent that they exist and have not
previously been certified to the Lenders;
(j) acknowledgment from CSC Network Corporation
System, Inc. as to its appointment as agent for service
of process for the various Credit Parties;
(k) certified copies of indentures, credit
agreements, leases, capital leases, instruments, and
other documents evidencing or securing Indebtedness of
any Consolidated Company described on Schedule 8.01(b),
in any single case in an amount not less than $500,000
and to the extent not previously certified to the
Lenders;
(l) certificates, reports and other information
as the Agent may reasonably request from any
Consolidated Company in order to satisfy the Lenders as
to the absence of any material liabilities or
obligations arising from matters relating to employees
of the Consolidated Companies, including employee
relations, collective bargaining agreements, Plans, and
other compensation and employee benefit plans;
(m) certificates, reports, environmental audits
and investigations, and other information as the Agent
may reasonably request from any Consolidated Company in
order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from
environmental and employee health and safety exposures
to which the Consolidated Companies may be subject, and
the plans of the Consolidated Companies with respect
thereto;
(n) certificates, reports and other information
as the Agent may reasonably request from any
Consolidated Company in order to satisfy the Lenders as
to the absence of any material liabilities or
obligations arising from litigation (including without
limitation, products liability and patent infringement
claims) pending or threatened against the Consolidated
Companies;
(o) a summary, set forth in format and detail
reasonably acceptable to the Agent, of the types and
amounts of insurance (property and liability)
maintained by the Consolidated Companies;
(p) the favorable opinion of counsel to the
Credit Parties, substantially in the form of Exhibit J
addressed to the Agent and each of the Lenders; and
(q) financial statements of Borrower and its
Subsidiaries, audited on a consolidated basis for the
fiscal year ended on January 26, 1996 and unaudited on
a consolidated basis for the fiscal quarter ended July
31, 1996.
In addition to the foregoing, the following conditions shall
have been satisfied or shall exist, all to the satisfaction
of the Agent, as of the time the initial Loans are made
hereunder:
(x) the Loans to be made on the Closing Date and
the use of proceeds thereof shall not contravene,
violate or conflict with, or involve the Agent or any
Lender in a violation of, any law, rule, injunction, or
regulation, or determination of any court of law or
other governmental authority;
(y) all corporate proceedings and all other legal
matters in connection with the authorization, legality,
validity and enforceability of the Credit Documents
shall be reasonably satisfactory in form and substance
to the Required Lenders; and
(z) the status of all pending and threatened
litigation (including products liability and patent
claims) which might result in a Materially Adverse
Effect, including a description of any damages sought
and the claims constituting the basis therefor, shall
have been reported in writing to the Administrative
Agent, the Administrative Agent shall have reported
such matters to the Lenders, and the Lenders shall be
satisfied with such status.
Section 5.02. Conditions to All Loans. At the
time of the making of all Loans (before as well as after
giving effect to such Loans and to the proposed use of the
proceeds thereof), the following conditions shall have been
satisfied or shall exist:
(a) there shall exist no Default or Event of
Default;
(b) all representations and warranties by
Borrower contained herein shall be true and correct in
all material respects with the same effect as though
such representations and warranties had been made on
and as of the date of such Loans;
(c) since the date of the most recent financial
statements of the Consolidated Companies described in
Section 6.03, there shall have been no change which has
had or could reasonably be expected to have a
Materially Adverse Effect.
(d) there shall be no action or proceeding
instituted or pending before any court or other
governmental authority or, to the knowledge of
Borrower, threatened (i) which reasonably could be
expected to have a Materially Adverse Effect, or (ii)
seeking to prohibit or restrict one or more Credit
Party's ownership or operation of any portion of its
business or assets, or to compel one or more Credit
Party to dispose of or hold separate all or any portion
of its businesses or assets, where such portion or
portions of such business(es) or assets, as the case
may be, constitute a material portion of the total
businesses or assets of the Consolidated Companies;
(e) the Loans to be made and the use of proceeds
thereof shall not contravene, violate or conflict with,
or involve the Agent or any Lender in a violation of,
any law, rule, injunction, or regulation, or
determination of any court of law or other governmental
authority applicable to Borrower; and
(f) the Agent shall have received such other docu
ments or legal opinions as the Agent or any Lender may
reasonably request, all in form and substance
reasonably satisfactory to the Agent.
Each request for a Borrowing and the acceptance by
Borrower of the proceeds thereof shall constitute a
representation and warranty by Borrower, as of the date of
the Loans comprising such Borrowing, that the applicable
conditions specified in Sections 5.01 and 5.02 have been
satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower represents, warrants and covenants to
Lenders that:
Section 6.01. Organization and Qualification.
Borrower is a corporation duly organized and existing in
good standing under the laws of the State of Florida. Each
Subsidiary of Borrower is a corporation duly organized and
existing under the laws of the jurisdiction of its
incorporation. Borrower and each of its Subsidiaries are
duly qualified to do business as a foreign corporation and
are in good standing in each jurisdiction in which the
character of their properties or the nature of their
business makes such qualification necessary, except for such
jurisdictions in which a failure to qualify to do business
would not have a Materially Adverse Effect. Borrower and
each of its Subsidiaries have the corporate power to own
their respective properties and to carry on their respective
businesses as now being conducted. The jurisdiction of
incorporation or organization, and the ownership of all
issued and outstanding capital stock, for each Subsidiary as
of the date of this Agreement is accurately described on
Schedule 6.01. Schedule 6.01 also designates the Material
Subsidiaries as of the Closing Date.
Section 6.02. Corporate Authority. The execution
and delivery by Borrower and the Guarantors of and the
performance by Borrower and Guarantors of their obligations
under the Loan Documents have been duly authorized by all
requisite corporate action and all requisite shareholder
action, if any, on the part of Borrower and the Guarantors
and do not and will not (i) violate any provision of any
law, rule or regulation, any judgment, order or ruling of
any court or governmental agency, the organizational papers
or bylaws of Borrower or the Guarantors, or any indenture,
agreement or other instrument to which Borrower or the
Guarantors are a party or by which Borrower or the
Guarantors or any of their properties is bound, or (ii) be
in conflict with, result in a breach of, or constitute with
notice or lapse of time or both a default under any such
indenture, agreement or other instrument.
Section 6.03. Financial Statements. Borrower has
furnished Lenders with the following financial statements,
identified by the Treasurer of Borrower: consolidated
balance sheets and consolidated statements of income,
stockholders' equity and cash flow of Borrower for the
fiscal years ended on the last Friday in January 1996
certified by Price Waterhouse, L.L.P. Such financial
statements (including any related schedules and notes) are
true and correct in all material respects (subject, as to
interim statements, to changes resulting from audits and
year end adjustments), have been prepared in accordance with
generally accepted accounting principles consistently
applied throughout the period or periods in question and
show, in the case of audited statements, all liabilities,
direct or contingent, of Borrower and its Subsidiaries,
required to be shown in accordance with generally accepted
accounting principles consistently applied throughout the
period or periods in question and fairly present the
consolidated financial position and the consolidated results
of operations of Borrower and its Subsidiaries for the
periods indicated therein. There has been no material
adverse change in the business, condition or operations,
financial or otherwise, of Borrower and its Subsidiaries
since January 26, 1996.
Section 6.04. Tax Returns. Except as set forth
on Schedule 6.04, each of Borrower and its Subsidiaries has
filed all federal, state and other income tax returns which,
to the best knowledge of the executive officers of Borrower
and its Subsidiaries, are required to be filed, and each has
paid all taxes as shown on said returns and on all
assessments received by it to the extent that such taxes
have become due or except such as are being contested in
good faith by appropriate proceedings for which adequate
reserves have been established in accordance with generally
accepted accounting principles.
Section 6.05. Actions Pending. Except as
disclosed on Schedule 6.05 hereto, there is no action, suit,
investigation or proceeding pending or, to the knowledge of
Borrower, threatened against or affecting Borrower or any of
its Subsidiaries or any of their properties or rights, by or
before any court, arbitrator or administrative or
governmental body, which might result in any Materially
Adverse Effect.
Section 6.06. Representations; No Defaults. At
the time of each Extension of Credit there shall exist no
Default or Event of Default, and each Extension of Credit
shall be deemed a renewal by Borrower of the representations
and warranties contained in this Agreement and an
affirmative statement by Borrower that such representations
and warranties are true and correct on and as of such time
with the same effect as though such representations and
warranties had been made on and as of such time.
Section 6.07. Title to Properties. Each of
Borrower and its Subsidiaries has (i) good and marketable
fee simple title to its respective real properties (other
than real properties which it leases from others), including
such real properties reflected in the consolidated balance
sheet of Borrower and its Subsidiaries as of January 26,
1996 hereinabove described (other than real properties
disposed of in the ordinary course of business), subject to
no Lien of any kind except Liens permitted by Section 8.2
and (ii) good title to all of its other respective
properties and assets (other than properties and assets
which it leases from others), including the other properties
and assets reflected in the consolidated balance sheet of
Borrower and its Subsidiaries at January 26, 1996
hereinabove described (other than properties and assets
disposed of in the ordinary course of business), subject to
no Lien of any kind except Liens permitted by Section 8.2.
Each of Borrower and its Subsidiaries enjoys peaceful and
undisturbed possession under all leases necessary in any
material respect for the operation of its respective
properties and assets, none of which contains any unusual or
burdensome provisions which might materially affect or
impair the operation of such properties and assets, and all
such leases are valid and subsisting and in full force and
effect.
Section 6.08. Enforceability of Agreement. This
Agreement is the legal, valid and binding agreement of
Borrower enforceable against Borrower in accordance with its
terms, and the Notes, and all other Loan Documents, when
executed and delivered, will be similarly legal, valid,
binding and enforceable, except as the enforceability of the
Notes and other Loan Documents may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws
affecting creditor's rights and remedies in general and by
general principles of equity, whether considered in a
proceeding at law or in equity.
Section 6.09. Consent. No consent, permission,
authorization, order or license of any governmental
authority or Person is necessary in connection with the
execution, delivery, performance or enforcement of the Loan
Documents, or in order to constitute the indebtedness to be
incurred hereunder and under the Notes and the other Loan
Documents as "Senior Debt" or any similar term defined
within each of the Subordinated Notes.
Section 6.10. Use of Proceeds; Federal Reserve
Regulations. The proceeds of the Notes will be used solely
for the purposes specified in Section 2.01(c) and 3.01(c)
and none of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any
"margin security" or "margin stock" or for the purpose of
reducing or retiring any indebtedness that originally was
incurred to purchase or carry a "margin security" or "margin
stock" or for any other purpose that might constitute this
transaction a "purpose credit" within the meaning of the
regulations of the Board of Governors of the Federal Reserve
System.
Section 6.11. ERISA.
(a) Identification of Certain Plans.
Schedule 6.11 hereto sets forth all Plans of Borrower and
its Subsidiaries;
(b) Compliance. Each Plan is being maintained,
by its terms and in operation, in accordance with all
applicable laws, except such noncompliances (when taken as a
whole) that will not have a materially adverse effect on the
Borrower and its Subsidiaries taken as a whole, or upon
their financial condition, assets, business, operations,
liabilities or prospects;
(c) Liabilities. Neither the Borrower nor any
Subsidiary is currently or will become subject to any
liability (including withdrawal liability), tax or penalty
whatsoever to any person whomsoever with respect to any Plan
including, but not limited to, any tax, penalty or liability
arising under Title I or Title IV or ERISA or Chapter 43 of
the Code, except such liabilities (when taken as a whole) as
will not have a materially adverse effect on the Borrower
and its Subsidiaries taken as a whole, or upon their
financial condition, assets, business, operations,
liabilities or prospects; and
(d) Funding. The Borrower and each ERISA
Affiliate has made full and timely payment of all amounts
(i) required to be contributed under the terms of each Plan
and applicable law and (ii) required to be paid as expenses
of each Plan, except where such non-payment would not have a
Material Adverse Effect. No Plan has an "amount of unfunded
benefit liabilities" (as defined in Section 4001(a)(18) of
ERISA) except as disclosed on Schedule 6.11. No Plan is
subject to a waiver or extension of the minimum funding
requirements under ERISA or the Code, and no request for
such waiver or extension is pending.
Section 6.12. Subsidiaries. All the outstanding
shares of stock of each such Subsidiary have been validly
issued and are fully paid and nonassessable and all such
outstanding shares, except as noted on such Schedule 6.01,
are owned by Borrower or a Wholly Owned Subsidiary of
Borrower free of any Lien or claim.
Each Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the
laws of the State of its incorporation with the power and
authority (corporate and other) to carry on its business as
it is now conducted and (ii) is qualified to transact
business as a foreign corporation and is in good standing in
each jurisdiction in which such qualification is required
under applicable law.
Section 6.13. Outstanding Debt. Except as set
forth on Schedule 6.13 as of the date of closing and after
giving effect to the transactions contemplated by this
Agreement, neither Borrower nor any of its Subsidiaries has
outstanding any Debt except as permitted by Section 8.01 and
there exists no default under the provisions of any
instrument evidencing such Debt or of any agreement relating
thereto except as noted on Schedule 6.13.
Section 6.14. Conflicting Agreements. Neither
Borrower nor any of its Subsidiaries is a party to any
contract or agreement or other burdensome restrictions or
subject to any charter or other corporate restriction which
materially and adversely affects its business, property or
assets, or financial condition. Assuming the consummation
of the transactions contemplated by this Agreement, neither
the execution or delivery of this Agreement or the Loan
Documents, nor fulfillment of or compliance with the terms
and provisions hereof and thereof, will conflict with, or
result in a breach of the terms, conditions or provisions
of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any
of the properties or assets of Borrower or any of its
Subsidiaries pursuant to, the charter or By-Laws of Borrower
or any of its Subsidiaries, any award of any arbitrator or
any agreement (including any agreement with stockholders),
instrument, order, judgment, decree, statute, law, rule or
regulation to which Borrower or any of its Subsidiaries is
subject, and neither Borrower nor any of its Subsidiaries is
a party to, or otherwise subject to any provision contained
in, any instrument evidencing Debt of Borrower or any of its
Subsidiaries, any agreement relating thereto or any other
contract or agreement (including its charter) which limits
the amount of, or otherwise imposes restrictions on the
incurring of, Debt of the type to be evidenced by the Notes
or contains dividend or redemption limitations on Common
Stock of Borrower, except for this Agreement, Borrower's
Certificate of Incorporation and those matters listed on
Schedule 6.14 attached hereto.
Section 6.15. Pollution and Other Regulations.
(a) Each of the Borrower and its Subsidiaries has
complied in all material respects with all applicable
Environmental Laws, including without limitation, compliance
with permits, licenses, standards, schedules and timetables,
and is not in violation of, and does not presently have
outstanding any liability under, has not been notified that
it is or may be liable under and does not have knowledge of
any liability or potential liability (including any
liability relating to matters set forth on Schedule 6.15(a))
except as set forth on Schedule 6.15(a), under any
applicable Environmental Law, including without limitation,
the Resource Conservation and Recovery Act of 1976, as
amended ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986
("CERCLA"), the Federal Water Pollution Control Act, as
amended ("FWPCA"), the Federal Clean Air Act, as amended
("FCAA"), and the Toxic Substance Control Act ("TSCA"),
which violation, liability or potential liability could
reasonably be expected to have a Materially Adverse Effect.
(b) Except as set forth on Schedule 6.15(b), the
Borrower nor any of its Subsidiaries has received a written
request for information under CERCLA, any other
Environmental Laws or any comparable state law, or any
public health or safety or welfare law or written notice
that any such entity has been identified as a potential
responsible party under CERCLA, and other Environmental
Laws, or any comparable state law, or any public health or
safety or welfare law, nor has any such entity received any
written notification that any Hazardous Substance that it or
any of its respective predecessors in interest has
generated, stored, treated, handled, transported, or
disposed of, has been released or is threatened to be
released at any site at which any Person intends to conduct
or is conducting a remedial investigation or other action
pursuant to any applicable Environmental Law, or any other
Environmental Laws.
(c) Except as set forth on Schedule 6.15(c), each
of the Borrower and its Subsidiaries has obtained all
permits, licenses or other authorizations required for the
conduct of their respective operations under all applicable
Environmental and Asbestos Laws and each such authorization
is in full force and effect.
(d) Each of Borrower and its Subsidiaries
complies in all material respects with all laws and
regulations relating to equal employment opportunity and
employee safety in all jurisdictions in which it is
presently doing business, and Borrower will use its best
efforts to comply, and to cause each of its Subsidiaries to
comply, with all such laws and regulations which may be
legally imposed in the future in jurisdictions in which
Borrower or any of its Subsidiaries may then be doing
business.
Section 6.16. Possession of Franchises, Licenses,
Etc. Each of Borrower and its Subsidiaries possesses all
franchises, certificates, licenses, permits and other
authorizations from governmental political subdivisions or
regulatory authorities, free from burdensome restrictions,
that are necessary in any material respect for the
ownership, maintenance and operation of its properties and
assets, and neither Borrower nor any of its Subsidiaries is
in violation of any thereof in any material respect.
Section 6.17. Patents, Etc. Except as set forth
on Schedule 6.17, each of Borrower and its Subsidiaries owns
or has the right to use all patents, trademarks, service
marks, trade names, copyrights, licenses and other rights,
free from burdensome restrictions, which are necessary for
the operation of its business as presently conducted.
Nothing has come to the attention of Borrower, any of its
Subsidiaries or any of their respective directors and
officers to the effect that (i) any product, process,
method, substance, part or other material presently
contemplated to be sold by or employed by Borrower or any of
its Subsidiaries in connection with its business may
infringe any patent, trademark, service xxxx, trade name,
copyright, license or other right owned by any other Person,
(ii) there is pending or threatened any claim or litigation
against or affecting Borrower or any of its Subsidiaries
contesting its right to sell or use any such product,
process, method, substance, part or other material or (iii)
there is, or there is pending or proposed, any patent,
invention, device, application or principle or any statute,
law, rule, regulation, standard or code which would
prevent, inhibit or render obsolete the production or sale
of any products of, or substantially reduce the projected
revenues of, or otherwise materially adversely affect the
business, condition or operations of, Borrower or any of its
Subsidiaries.
Section 6.18. Governmental Consent. Neither the
nature of Borrower or any of its Subsidiaries nor any of
their respective businesses or properties, nor any
relationship between Borrower and any other Person, nor any
circumstance in connection with the execution and delivery
of the Loan Documents and the consummation of the
transactions contemplated thereby is such as to require on
behalf of Borrower or any of its Subsidiaries any consent,
approval or other action by or any notice to or filing with
any court or administrative or governmental body in
connection with the execution and delivery of this Agreement
and the Loan Documents.
Section 6.19. Disclosure. Neither this Agreement
nor the Loan Documents nor any other document, certificate
or written statement furnished to Lenders by or on behalf of
Borrower in connection herewith contains any untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements contained
herein or therein not misleading. There is no fact peculiar
to Borrower which materially adversely affects or in the
future may (so far as Borrower can now foresee) materially
adversely affect the business, property or assets, financial
condition or prospects of Borrower which has not been set
forth in this Agreement or in the Loan Documents,
certificates and written statements furnished to Lenders by
or on behalf of Borrower prior to the date hereof in
connection with the transactions contemplated hereby.
Section 6.20. Insurance Coverage. Each property
of Borrower or any of its Subsidiaries is insured with in
terms acceptable to Lenders for the benefit of Borrower or a
Subsidiary of Borrower in amounts deemed adequate by
Borrower's management and no less than those amounts
customary in the industry in which Borrower and its
Subsidiaries operate against risks usually insured against
by Persons operating businesses similar to those of Borrower
or its Subsidiaries in the localities where such properties
are located.
Section 6.21. Labor Matters. Except as set forth
on Schedule 6.21, the Borrower and the Borrower's
Subsidiaries have experienced no strikes, labor disputes,
slow downs or work stoppages due to labor disagreements
which have had, or would reasonably be expected to have, a
Materially Adverse Effect, and, to the best knowledge of
Borrower's executive officers, there are no such strikes,
disputes, slow downs or work stoppages threatened against
any Borrower or any of Borrower's Subsidiaries. The hours
worked and payment made to employees of the Borrower and
Borrower's Subsidiaries have not been in violation in any
material respect of the Fair Labor Standards Act or any
other applicable law dealing with such matters. All
payments due from the Borrower and Borrower's Subsidiaries,
or for which any claim may be made against the Consolidated
Group, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as
liabilities on the books of the Borrower and Borrower's
Subsidiaries where the failure to pay or accrue such
liabilities would reasonably be expected to have a
Materially Adverse Effect.
Section 6.22. Intercompany Loans; Dividends. The
Intercompany Loans and the Intercompany Loan Documents, to
the extent that they exist, have been duly authorized and
approved by all necessary corporate and shareholder action
on the part of the parties thereto, and constitute the
legal, valid and binding obligations of the parties thereto,
enforceable against each of them in accordance with their
respective terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting creditors' rights generally, and by
general principles of equity. There are no restrictions on
the power of any Consolidated Company to repay any
Intercompany Loan or to pay dividends on the capital stock.
Intercompany loans as of the Closing date are described in
Schedule 6.22.
Section 6.23. Burdensome Restrictions. Except as
set forth on Schedule 6.23, none of the Consolidated
Companies is a party to or bound by any Contractual Obliga
tion or Requirement of Law which has had or would reasonably
be expected to have a Materially Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as it
may borrow under this Agreement or so long as any
indebtedness remains outstanding under the Notes that it
will:
Section 7.01. Corporate Existence, Etc. Preserve
and maintain, and cause each of its Material Subsidiaries to
preserve and maintain, its corporate existence, its material
rights, franchises, and licenses, and its material patents
and copyrights (for the scheduled duration thereof),
trademarks, trade names, and service marks, necessary or
desirable in the normal conduct of its business, and its
qualification to do business as a foreign corporation in all
jurisdictions where it conducts business or other activities
making such qualification necessary, where the failure to do
so would reasonably be expected to have a Materially Adverse
Effect.
Section 7.02. Compliance with Laws, Etc. Comply,
and cause each of its Subsidiaries to comply with all
Requirements of Law (including, without limitation, the
Environmental Laws, subject to the exception set forth in
Section 7.07 where the penalties, claims, fines, and other
liabilities resulting from noncompliance with such
Environmental Laws do not involve amounts in excess of
$5,000,000 in the aggregate) and Contractual Obligations
applicable to or binding on any of them where the failure to
comply with such Requirements of Law and Contractual
Obligations would reasonably be expected to have a
Materially Adverse Effect.
Section 7.03. Payment of Taxes and Claims, Etc.
Pay, and cause each of its Subsidiaries to pay, (i) all
taxes, assessments and governmental charges imposed upon it
or upon its property, and (ii) all claims (including,
without limitation, claims for labor, materials, supplies or
services) which might, if unpaid, become a Lien upon its
property, unless, in each case, the validity or amount
thereof is being contested in good faith by appropriate
proceedings and adequate reserves are maintained with
respect thereto.
Section 7.04. Keeping of Books. Keep, and cause
each of its Subsidiaries to keep, proper books of record and
account, containing complete and accurate entries of all
their respective financial and business transactions.
Section 7.05. Visitation, Inspection, Etc.
Permit, and cause each of its Subsidiaries to permit, any
representative of the Agent or any Lender to visit and
inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and
to discuss its affairs, finances and accounts with its
officers, all at such reasonable times and as often as the
Agent or such Lender may reasonably request after reasonable
prior notice to Borrower; provided, however, that at any
time following the occurrence and during the continuance of
a Default or an Event of Default, no prior notice to
Borrower shall be required.
Section 7.06. Insurance; Maintenance of
Properties.
(a) Maintain or cause to be maintained with
financially sound and reputable insurers, insurance with
respect to its properties and business, and the properties
and business of its Subsidiaries, against loss or damage of
the kinds customarily insured against by reputable companies
in the same or similar businesses, such insurance to be of
such types and in such amounts, including such self-
insurance and deductible provisions, as is customary for
such companies under similar circumstances; provided,
however, that in any event Borrower shall use its best
efforts to maintain, or cause to be maintained, insurance in
amounts and with coverages not materially less favorable to
any Consolidated Company as in effect on the date of this
Agreement, except where the costs of maintaining such
insurance would, in the judgment of both Borrower and the
Administrative Agent, be excessive.
(b) Cause, and cause each of the Consolidated
Companies to cause, all properties used or useful in the
conduct of its business to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, settlements and
improvements thereof, all as in the judgment of Borrower may
be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this Section
shall prevent Borrower from discontinuing the operation or
maintenance of any such properties if such discontinuance
is, in the judgment of Borrower, desirable in the conduct of
its business or the business of any Consolidated Company.
Section 7.07. Reporting Covenants. Furnish to
each Lender:
(a) Annual Financial Statements. As soon as
available and in any event within 95 days after the end of
each fiscal year of Borrower, balance sheets of the
Consolidated Companies as at the end of such year, presented
on a consolidated basis, and the related statements of
income, shareholders' equity, and cash flows of the Xxxxxxx
dated Companies for such fiscal year, presented on a xxxxxxx
dated basis, setting forth in each case in comparative form
the figures for the previous fiscal year, all in reasonable
detail and accompanied by a report thereon of independent
public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, which
such report shall be unqualified as to going concern and
scope of audit and shall state that such financial
statements present fairly in all material respects the
financial condition as at the end of such fiscal year on a
consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for
such fiscal year in accordance with GAAP and that the exami
nation by such accountants in connection with such xxxxxxx
dated financial statements has been made in accordance with
generally accepted auditing standards;
(b) Quarterly Financial Statements. As soon as
available and in any event within 60 days after the end of
each fiscal quarter of Borrower (other than the fourth
fiscal quarter), balance sheets of the Consolidated
Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income,
shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal quarter and for the portion of
Borrower's fiscal year ended at the end of such quarter,
presented on a consolidated basis setting forth in each case
in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower's previous
fiscal year, all in reasonable detail and certified by the
chief financial officer or principal accounting officer of
Borrower that such financial statements fairly present in
all material respects the financial condition of the
Consolidated Companies as at the end of such fiscal quarter
on a consolidated basis, and the results of operations and
statements of cash flows of the Consolidated Companies for
such fiscal quarter and such portion of Borrower's fiscal
year, in accordance with GAAP consistently applied (subject
to normal year-end audit adjustments and the absence of
certain footnotes);
(c) No Default/Compliance Certificate. Together
with the financial statements required pursuant to
subsections (a) and (b) above, a certificate of the
president, chief financial officer or principal accounting
officer of Borrower (i) to the effect that, based upon a
review of the activities of the Consolidated Companies and
such financial statements during the period covered thereby,
there exists no Event of Default and no Default under this
Agreement, or if there exists an Event of Default or a
Default hereunder, specifying the nature thereof and the
proposed response thereto, and (ii) demonstrating in
reasonable detail compliance as at the end of such fiscal
year or such fiscal quarter with Section 7.08 and Sections
8.01 through 8.04;
(d) Notice of Default. Promptly after any
Executive Officer of Borrower has notice or knowledge of the
occurrence of an Event of Default or a Default, a cer
tificate of the chief financial officer or principal account
ing officer of Borrower specifying the nature thereof and
the proposed response thereto;
(e) Litigation. Promptly after (i) the
occurrence thereof, notice of the institution of or any
adverse development in any action, suit or proceeding or any
governmental investigation or any arbitration, before any
court or arbitrator or any governmental or administrative
body, agency or official, against any Consolidated Company,
or any material property thereof which might have a
Materially Adverse Effect, or (ii) actual knowledge thereof,
notice of the threat of any such action, suit, proceeding,
investigation or arbitration;
(f) Environmental Notices. Promptly after
receipt thereof, notice of any actual or alleged violation,
or notice of any action, claim or request for information,
either judicial or administrative, from any governmental
authority relating to any actual or alleged claim, notice of
potential responsibility under or violation of any
Environmental Law, or any actual or alleged spill, leak,
disposal or other release of any waste, petroleum product,
or hazardous waste or Hazardous Substance by any
Consolidated Company which could result in penalties, fines,
claims or other liabilities to any Consolidated Company in
amounts in excess of $5,000,000 individually or in the
aggregate;
(g) ERISA.
(A) Promptly after the occurrence thereof
with respect to any Plan of any Consolidated Company or
any ERISA Affiliate thereof, or any trust established
thereunder, notice of (x) a "reportable event"
described in Section 4043 of ERISA and the regulations
issued from time to time thereunder (other than a
"reportable event" not subject to the provisions for
30-day notice to the PBGC under such regulations), or
(y) any other event which could subject any
Consolidated Company to any tax, penalty or liability
under Title I or Title IV of ERISA or Chapter 43 of the
Tax Code, or any tax or penalty resulting from a loss
of deduction under Sections 162, 404 or 419 of the Tax
Code, where any such taxes, penalties or liabilities
exceed or could exceed $250,000 in the aggregate;
(B) Promptly after such notice must be
provided to the PBGC, or to a Plan participant,
beneficiary or alternative payee, any notice required
under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under
Section 401(a)(29) or 412 of the Tax Code with respect
to any Plan of any Consolidated Company or any ERISA
Affiliate thereof;
(C) Promptly after receipt, any notice
received by any Consolidated Company or any ERISA
Affiliate thereof concerning the intent of the PBGC or
any other governmental authority to terminate a Plan of
such Company or ERISA Affiliate thereof which is
subject to Title IV of ERISA, to impose any liability
on such Company or ERISA Affiliate under Title IV of
ERISA or Chapter 43 of the Tax Code;
(D) Upon the request of the Agent, promptly
upon the filing thereof with the Internal Revenue
Service ("IRS") or the Department of Labor ("DOL"), a
copy of IRS Form 5500 or annual report for each Plan of
any Consolidated Company or ERISA Affiliate thereof
which is subject to Title IV of ERISA;
(E) Upon the request of the Agent, (A) true
and complete copies of any and all documents,
government reports and IRS determination or opinion
letters or rulings for any Plan of any Consolidated
Company from the IRS, PBGC or DOL, (B) any reports
filed with the IRS, PBGC or DOL with respect to a Plan
of the Consolidated Companies or any ERISA Affiliate
thereof, or (C) a current statement of withdrawal
liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof;
(h) Liens. Promptly upon any Consolidated
Company becoming aware thereof, notice of the filing of any
federal statutory Lien, tax or other state or local
government Lien or any other Lien affecting their respective
properties, other than those Liens expressly permitted by
Section 8.02;
(i) Public Filings, Etc. Promptly upon the
filing thereof or otherwise becoming available, copies of
all financial statements, annual, quarterly and special
reports, proxy statements and notices sent or made available
generally by Borrower to its public security holders, of all
regular and periodic reports and all registration statements
and prospectuses (other than registration statements filed
on Form S-3 of the Securities and Exchange Commission
regarding the issuance of restricted stock in acquisitions),
if any, filed by any of them with any securities exchange,
and of all press releases and other statements made
available generally to the public containing material devel
opments in the business or financial condition of Borrower
and the other Consolidated Companies;
(j) Accountants' Reports. Promptly upon receipt
thereof, copies of all financial statements of, and all
reports submitted by, independent public accountants to
Borrower in connection with each annual, interim, or special
audit of Borrower's consolidated financial statements;
(k) Burdensome Restrictions, Etc. Promptly upon
the existence or occurrence thereof, notice of the existence
or occurrence of (i) any Contractual Obligation or
Requirement of Law described in Section 6.23, (ii) failure
of any Consolidated Company to hold in full force and effect
those material trademarks, service marks, patents, trade
names, copyrights, licenses and similar rights necessary in
the normal conduct of its business, and (iii) any strike,
labor dispute, slow down or work stoppage as described in
Section 6.21;
(l) New Material Subsidiaries. Simultaneously
with the delivery of each Compliance Certificate, a written
list of all Material Subsidiaries formed, acquired, or
created from a transfer of assets or through any other
event, during the period commencing on the Closing Date and
ending on the date on which the first Compliance Certificate
is delivered, and thereafter since the date of the most
recently delivered Compliance Certificate; such written list
shall include the name of each new Material Subsidiary, its
state of incorporation, list of its officers and any other
information that the Agent shall reasonably request.
(m) Intercompany Asset Transfers. Promptly upon
the occurrence thereof, notice of the transfer of any assets
from Borrower or any Guarantor to any other Consolidated
Company that is not Borrower or a Guarantor (in any
transaction or series of related transactions), excluding
sales or other transfers of assets in the ordinary course of
business, where the Asset Value of such assets is greater
than $5,000,000 per transfer;
(n) Other Information. With reasonable
promptness, such other information about the Consolidated
Companies as the Agent or any Lender may reasonably request
from time to time.
Section 7.08. Financial Covenants.
(a) Working Capital. Maintain as of the last day
of each fiscal quarter, Working Capital of at least
$75,000,000.
(b) Fixed Charge Coverage; Cash Flow Coverage
Ratio. Maintain as of the last day of each fiscal quarter,
a minimum Fixed Charge Coverage Ratio, calculated for the
immediately preceding four fiscal quarters, of at least
1.25:1.0, provided, however, if such Fixed Charge Coverage
Ratio is not met, the Borrower shall maintain a Cash Flow
Coverage Ratio, calculated as of the last day of each fiscal
quarter, for the immediately preceding four fiscal quarters,
equal to or greater than 1.5:1.0.
(c) Funded Debt to Total Capitalization.
Maintain as of the last day of each fiscal quarter, a
maximum ratio of Funded Debt to Total Capitalization, of
less than or equal to 0.60:1.0.
(d) Dividends. Borrower shall not declare or pay
any dividend on its capital stock, or make any payment to
purchase, redeem, retire or acquire any of its Subordinated
Debt or capital stock or any option, warrant, or other right
to acquire such Subordinated Debt or capital stock, other
than:
(i) dividends payable solely in shares of capital
stock; and
[fix] (ii) cash dividends declared and paid, and
all other such payments made, after January 29, 1993 in
an aggregate amount at any time not to exceed (x)
$1,000,000, plus (y) 50% of Consolidated Net Income (or
minus 100%, of Consolidated Net Loss) earned during
Borrowers fiscal year ended January 29, 1993, and
thereafter (such period to be treated as one accounting
period);
provided, further, however, no such dividend or other
payment may be declared or paid pursuant to clause (ii)
above unless no Default or Event of Default exists at the
time of such declaration or payment, or would exist as a
result of such declaration or payment.
(e) Minimum Net Worth. Maintain a Consolidated
Net Worth of at least $170,000,000 at all times.
Section 7.09. Notices Under Certain Other
Indebtedness. Immediately upon its receipt thereof,
Borrower shall furnish the Agent a copy of any notice
received by it or any other Consolidated Company from the
holder(s) of Indebtedness referred to in Section 8.01 (or
from any trustee, agent, attorney, or other party acting on
behalf of such holder(s)) in an amount which, in the
aggregate, exceeds $2,500,000, where such notice states or
claims (i) the existence or occurrence of any default or
event of default with respect to such Indebtedness under the
terms of any indenture, loan or credit agreement, debenture,
note, or other document evidencing or governing such
Indebtedness, or (ii) the existence or occurrence of any
event or condition which requires or permits holder(s) of
any Indebtedness to exercise rights under any Change in
Control Provision. Borrower agrees to take such actions as
may be necessary to require the holder(s) of any
Indebtedness (or any trustee or agent acting on their
behalf) incurred pursuant to documents executed or amended
and restated after the Closing Date, to furnish copies of
all such notices directly to the Agent simultaneously with
the furnishing thereof to Borrower, and that such
requirement may not be altered or rescinded without the
prior written consent of the Administrative Agent.
Section 7.10. Additional Guarantors. Borrower
shall cause each new Material Subsidiary reported to the
Agent and the Lenders pursuant to Section 7.07(l) above to
execute and deliver to the Agent, simultaneously with the
report given pursuant to Section 7.07(l) above, a Guaranty
Agreement, together with related documents of the kind
described in Section 5.01, as appropriate, all in form and
substance satisfactory to the Agent and the Required
Lenders.
Section 7.11. Financial Statements; Fiscal Year.
Borrower shall make no change in the dates of the fiscal
year now employed for accounting and reporting purposes
without the prior written consent of the Required Lenders,
which consent shall not be unreasonably withheld.
Section 7.12. Ownership of Guarantors. Borrower
shall maintain its percentage of ownership existing as of
the date hereof of all Guarantors, and shall not decrease
its ownership percentage in each Person which becomes a
Guarantor after the date hereof, as such ownership exists at
the time such Person becomes a Guarantor.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Commitment remains in effect
hereunder or any Note shall remain unpaid, Borrower will not
and will not permit any Subsidiary to:
Section 8.01. Indebtedness. Create, incur,
assume or suffer to exist any Indebtedness, other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof
or pursuant to lines of credit in effect on the date hereof
and described on Schedule 8.01(b);
(c) purchase money Indebtedness to the extent
secured by a Lien permitted by Section 8.02(b) provided such
purchase money Indebtedness does not exceed $5,000,000;
(d) unsecured current liabilities (other than
liabilities for borrowed money or liabilities evidenced by
promissory notes, bonds or similar instruments) incurred in
the ordinary course of business and either (i) not more than
30 days past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed
liability maintained in conformity with GAAP;
(e) the Intercompany Loans described on Schedule
6.22 and any other loans between Consolidated Companies
provided that (i) no loan or other extension of credit may
be made by a Guarantor to another Consolidated Company that
is not a Guarantor hereunder and all such loans and
extensions of credit shall not exceed $5,000,000 in the
aggregate at any one time outstanding (excluding
Intercompany Loans listed on Schedule 6.22) unless otherwise
agreed in writing by the Administrative Agent and the
Required Lenders; (ii) such loans or other extensions of
credit are otherwise permitted pursuant to the limitations
of Section 8.01;
(f) other Subordinated Debt in form and substance
acceptable to the Administrative Agent and the Required
Lenders, and evidenced by their written consent thereto;
(g) cash management lines of credit from
financial institutions not exceeding $6,000,000.00 in
principal amount; and
(h) other Indebtedness not to exceed $5,000,000
at any one time outstanding.
Section 8.02. Liens. Create, incur, assume or
suffer to exist any Lien on any of its property now owned or
hereafter acquired to secure any Indebtedness other than:
(a) Liens existing on the date hereof disclosed
on Schedule 8.02 (excluding Liens securing operating leases
with annual payments of less than $100,000);
(b) any Lien on any property securing
Indebtedness incurred or assumed for the purpose of
financing all or any part of the acquisition cost of such
property and any refinancing thereof, provided that such
Lien does not extend to any other property, and provided
further that the aggregate principal amount of Indebtedness
secured by all such Liens at any time does not exceed
$5,000,000;
(c) Liens for taxes not yet due, and Liens for
taxes or Liens imposed by ERISA which are being contested in
good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained;
(d) 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;
(e) Liens incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-
money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money); and
(f) Liens (other than those permitted by
paragraphs (a) through (e) of this Section 8.02) encumbering
assets having an Asset Value not greater than $5,000,000 in
the aggregate at any one time.
Section 8.03. Mergers, Acquisitions, Sales, Etc.
Merge or consolidate with any other Person, other than
Borrower or another Subsidiary, or sell, lease, or otherwise
dispose of its accounts, property or other assets (including
capital stock of Subsidiaries), or purchase, lease or
otherwise acquire all or any substantial portion of the
property or assets (including capital stock) of any Person;
provided, however, that the foregoing restrictions on asset
sales shall not be applicable to (i) sales of equipment or
other personal property being replaced by other equipment or
other personal property purchased as a capital expenditure
item, (ii) sales of accounts receivable pursuant to a
securitization program, provided further that any program
costs incurred by the Borrower in pursuing such a program
shall be considered interest under this Credit Agreement,
(iii) other asset sales (including the stock of
Subsidiaries) where, on the date of execution of a binding
obligation to make such asset sale (provided that if the
asset sale is not consummated within six (6) months of such
execution, then on the date of consummation of such asset
sale rather than on the date of execution of such binding
obligation), the Asset Value of asset sales occurring after
the Closing Date, taking into account the Asset Value of the
proposed asset sale, would not exceed ten percent (10%) of
Borrower's Consolidated Net Worth, since the Closing Date,
and (iv) sales of inventory in the ordinary course of
business; provided, further, that the foregoing restrictions
on mergers shall not apply to mergers involving Borrower and
another entity, provided Borrower is the surviving entity,
and mergers between a Subsidiary of Borrower and Borrower or
between Subsidiaries of Borrower provided that, in either
case, upon consummation of such mergers, Borrower is in
compliance with the other provisions hereof; provided,
further, that the foregoing restrictions on asset purchases
shall not apply to asset purchases by Borrower to the extent
that after giving effect to such purchases, Borrower is in
compliance with Section 8.04 hereof; provided, however, that
no transaction pursuant to clauses (i), (ii) or (iii) or the
second or third provisos above shall be permitted if any
Default or Event of Default otherwise exists at the time of
such transaction or would otherwise exist as a result of
such transaction.
Section 8.04. Investments, Loans, Etc. Make,
permit or hold any Investments in any Person, or otherwise
acquire or hold any Subsidiaries, other than:
(a) Investments in Subsidiaries that are
Guarantors under this Agreement, whether such Subsidiaries
are Guarantors on the Closing Date or become Guarantors in
accordance with Section 7.10 after the Closing Date;
provided, however, nothing in this Section 8.04 shall be
deemed to authorize an investment pursuant to this
subsection (a) in any entity that is not a Subsidiary and a
Guarantor prior to such investment;
(b) Investments in Subsidiaries, other than those
Subsidiaries that are or become Guarantors under this
Agreement, or persons that thereafter become Subsidiaries,
in an aggregate amount not to exceed $15,000,000 unless
otherwise consented to in writing by the Required Lenders;
(c) Investments in other Persons that are not,
and do not become, Subsidiaries in an aggregate amount not
to exceed $10,000,000 unless otherwise consented to in
writing by the Required Lenders;
(d) direct obligations of the United States or
any agency thereof, or obligations guaranteed by the United
States or any agency thereof, in each case supported by the
full faith and credit of the United States and maturing
within one year from the date of creation thereof;
(e) commercial paper maturing within one year
from the date of creation thereof rated in the highest grade
by a nationally recognized credit rating agency;
(f) time deposits maturing within one year from
the date of creation thereof with, including certificates of
deposit issued by any Lender and any office located in the
United States of any bank or trust company which is
organized under the laws of the United States or any state
thereof and has total assets aggregating at least
$500,000,000, including without limitation, any such
deposits in Eurodollars issued by a foreign branch of any
such bank or trust company;
(g) Investments made by Plans; and
(h) Permitted Intercompany Loans on terms and
conditions acceptable to the Administrative Agent.
Section 8.05 Sale and Leaseback Transactions.
Sell or transfer any property, real or personal, whether now
owned or hereafter acquired, and thereafter rent or lease
such property or other property which any Consolidated
Company intends to use for substantially the same purpose or
purposes as the property being sold or transferred, except
to the extent that the aggregate value of all such property
sold and leased back does not exceed $5,000,000 at any one
time.
Section 8.06 Transactions with Affiliates.
(a) Enter into any material transaction or series
of related transactions which in the aggregate would be
material, whether or not in the ordinary course of business,
with any Affiliate of any Consolidated Company (but
excluding any Affiliate which is also a Consolidated
Company), other than on terms and conditions substantially
as favorable to such Consolidated Company as would be
obtained by such Consolidated Company at the time in a
comparable arm's-length transaction with a Person other than
an Affiliate.
(b) Convey or transfer to any other Person
(including any other Consolidated Company) any real
property, buildings, or fixtures used in the manufacturing
or production operations of any Consolidated Company, or
convey or transfer to any other Consolidated Company any
other assets (excluding conveyances or transfers in the
ordinary course of business) if at the time of such convey
ance or transfer any Default or Event of Default exists or
would exist as a result of such conveyance or transfer.
Section 8.07 Optional Prepayments. Directly or
indirectly, prepay, purchase, redeem, retire, defease or
otherwise acquire, or make any optional payment on account
of any principal of, interest on, or premium payable in
connection with the optional prepayment, redemption or
retirement of, any of its Indebtedness, or give a notice of
redemption with respect to any such Indebtedness, or make
any payment in violation of the subordination provisions of
any Subordinated Debt, except with respect to (i) the
Obligations under this Agreement and the Notes, (ii)
prepayments of Indebtedness outstanding pursuant to
revolving credit, overdraft and line of credit facilities
permitted pursuant to Section 8.01, (iii) Intercompany Loans
made or outstanding pursuant to Section 8.01, (iv)
Intercompany Loans made or outstanding pursuant to Section
8.01 upon the prior written consent of the Agent and the
Required Lenders, and (v) Subordinated Debt, in form and
substance acceptable to the Administrative Agent and the
Required Lenders, as evidenced by their written consent,
issued to refinance existing Subordinated Debt.
Section 8.08 Changes in Business. Enter into any
business which is substantially different from that
presently conducted by the Consolidated Companies taken as a
whole except where the aggregate Investment made, and other
funds expended or committed with respect to such business
does not exceed $5,000,000.
Section 8.09 ERISA. Take or fail to take any
action with respect to any Plan of any Consolidated Company
or, with respect to its ERISA Affiliates, any Plans which
are subject to Title IV of ERISA or to continuation health
care requirements for group health plans under the Tax Code,
including without limitation (i) establishing any such Plan,
(ii) amending any such Plan (except where required to comply
with applicable law), (iii) terminating or withdrawing from
any such Plan, or (iv) incurring an amount of unfunded
benefit liabilities, as defined in Section 4001(a)(18) of
ERISA, or any withdrawal liability under Title IV of ERISA
with respect to any such Plan, without first obtaining the
written approval of the Administrative Agent and the
Required Lenders, where such actions or failures could
result in a Material Adverse Effect.
Section 8.10 Additional Negative Pledges. Create
or otherwise cause or suffer to exist or become effective,
directly or indirectly, any prohibition or restriction on
the creation or existence of any Lien upon any asset of any
Consolidated Company, other than pursuant to (i) the terms
of any agreement, instrument or other document pursuant to
which any Indebtedness permitted by Section 8.02(b) is
incurred by any Consolidated Company, so long as such
prohibition or restriction applies only to the property or
asset being financed by such Indebtedness, and (ii) any
requirement of applicable law or any regulatory authority
having jurisdiction over any of the Consolidated Companies.
Section 8.11 Limitation on Payment Restrictions
Affecting Consolidated Companies. Create or otherwise cause
or suffer to exist or become effective, any consensual
encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or make any other
distributions on such Consolidated Company's stock, or (ii)
pay any indebtedness owed to Borrower or any other
Consolidated Company, or (iii) transfer any of its property
or assets to Borrower or any other Consolidated Company,
except any consensual encumbrance or restriction existing
under the Loan Documents.
Section 8.12 Actions Under Certain Documents.
Without the prior written consent of the Administrative
Agent (which consent shall not be unreasonably withheld),
modify, amend, cancel or rescind the Intercompany Loans or
Intercompany Loan Documents, or any agreements or documents
evidencing or governing Subordinated Debt or the senior
Indebtedness permitted pursuant to Section 8.01 hereof
(except that a loan between Consolidated Companies as
permitted by Section 8.01 may be modified or amended so long
as it otherwise satisfies the requirements of Section 8.01),
or make demand of payment or accept payment on any
Intercompany Loans permitted by Section 8.01, except that
current interest accrued thereon as of the date of this
Agreement and all interest subsequently accruing thereon
(whether or not paid currently) may be paid unless a Default
or Event of Default has occurred and is continuing.
ARTICLE IX
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of
any of the following specified events (each an "Event of
Default"):
Section 9.01. Payments. Borrower shall fail to
make promptly when due (including, without limitation, by
mandatory prepayment) any principal payment with respect to
the Loans, or Borrower shall fail to make within five (5)
Business Days after the due date thereof any payment of
interest, fee or other amount payable hereunder;
Section 9.02. Covenants Without Notice. Borrower
shall fail to observe or perform any covenant or agreement
contained in Sections 7.07(f), 7.08, 7.11, 8.01 through 8.07
and 8.09 through 8.12;
Section 9.03. Other Covenants. Borrower shall
fail to observe or perform any covenant or agreement
contained in this Agreement, other than those referred to in
Sections 9.01 and 9.02, and, if capable of being remedied,
such failure shall remain unremedied for 30 days after the
earlier of (i) Borrower's obtaining knowledge thereof, or
(ii) written notice thereof shall have been given to
Borrower by Agent or any Lender;
Section 9.04. Representations. Any
representation or warranty made or deemed to be made by
Borrower or any other Credit Party or by any of its officers
under this Agreement or any other Credit Document (including
the Schedules attached thereto), or any certificate or other
document submitted to the Agent or the Lenders by any such
Person pursuant to the terms of this Agreement or any other
Credit Document, shall be incorrect in any material respect
when made or deemed to be made or submitted;
Section 9.05. Non-Payments of Other Indebtedness.
Any Consolidated Company shall fail to make when due
(whether at stated maturity, by acceleration, on demand or
otherwise, and after giving effect to any applicable grace
period) any payment of principal of or interest on any
Indebtedness (other than the Obligations) exceeding
$1,000,000 in the aggregate;
Section 9.06. Defaults Under Other Agreements.
Any Consolidated Company shall fail to observe or perform
within any applicable grace period any covenants or
agreements contained in any agreements or instruments
relating to any of its Indebtedness exceeding $1,000,000 in
the aggregate, or any other event shall occur if the effect
of such failure or other event is to accelerate, or to
permit the holder of such Indebtedness or any other Person
to accelerate, the maturity of such Indebtedness; or any
such Indebtedness shall be required to be prepaid (other
than by a regularly scheduled required prepayment) in whole
or in part prior to its stated maturity;
Section 9.07. Bankruptcy. Borrower or any other
Consolidated Company shall commence a voluntary case
concerning itself under the Bankruptcy Code or an
involuntary case for bankruptcy is commenced against any
Consolidated Company and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all
or any substantial part of the property of any Consolidated
Company; or any Consolidated Company commences proceedings
of its own bankruptcy or to be granted a suspension of
payments or any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolu
tion, insolvency or liquidation or similar law of any
jurisdiction, whether now or hereafter in effect, relating
to any Consolidated Company or there is commenced against
any Consolidated Company any such proceeding which remains
undismissed for a period of 60 days; or any Consolidated
Company is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or pro
ceeding is entered; or any Consolidated Company suffers any
appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or
unstayed for a period of 60 days; or any Consolidated
Company makes a general assignment for the benefit of
creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to
pay, its debts generally as they become due; or any
Consolidated Company shall call a meeting of its creditors
with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or
failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate
action is taken by any Consolidated Company for the purpose
of effecting any of the foregoing;
Section 9.08. ERISA. A Plan of a Consolidated
Company or a Plan subject to Title IV of ERISA of any of its
ERISA Affiliates:
(i) shall fail to be funded in accordance
with the minimum funding standard required by
applicable law, the terms of such Plan,
Section 412 of the Tax Code or Section 302 of
ERISA for any plan year or a waiver of such
standard is sought or granted with respect to
such Plan under applicable law, the terms of
such Plan or Section 412 of the Tax Code or
Section 303 of ERISA; or
(ii) is being, or has been, terminated or the
subject of termination proceedings under
applicable law or the terms of such Plan; or
(iii) shall require a Consolidated
Company to provide security under applicable
law, the terms of such Plan, Section 401 or
412 of the Tax Code or Section 306 or 307 of
ERISA; or
(iv) results in a liability to a Consolidated
Company under applicable law, the terms of
such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver,
termination or other event a liability to the PBGC or a Plan
that would have a Materially Adverse Effect;
Section 9.09. Money Judgment. A judgment or
order for the payment of money in excess of $1,000,000 or
otherwise having a Materially Adverse Effect shall be
rendered against Borrower or any other Consolidated Company
and such judgment or order shall continue unsatisfied (in
the case of a money judgment) and in effect for a period of
30 days during which execution shall not be effectively
stayed or deferred (whether by action of a court, by
agreement or otherwise);
Section 9.10. Ownership of Credit Parties and
Pledged Entities. If Borrower shall at any time fail to own
and control the required percentage of the voting stock of
any Guarantor, either directly or indirectly through a
wholly-owned Subsidiary of Borrower;
Section 9.11. Change in Control of Borrower. (a)
Any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Exchange Act), other than the
Xxxxxx Family shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of more than twenty-five percent
(25%) of the shares of the outstanding common stock of
Borrower entitled to vote for members of Borrower's board of
directors, or (b) any event or condition shall occur or
exist which, pursuant to the terms of any change in control
provision, requires or permits the holder(s) of Indebtedness
of any Consolidated Company to require that such
Indebtedness be redeemed, repurchased, defeased, prepaid or
repaid, in whole or in part, or the maturity of such
Indebtedness to be accelerated in any respect;
Section 9.12. Default Under Other Credit
Documents. There shall exist or occur any "Event of
Default" as provided under the terms of any other Credit
Document, or any Credit Document ceases to be in full force
and effect or the validity or enforceability thereof is
disaffirmed by or on behalf of Borrower or any other Credit
Party, or at any time it is or becomes unlawful for Borrower
or any other Credit Party to perform or comply with its
obligations under any Credit Document, or the obligations of
Borrower or any other Credit Party under any Credit Document
are not or cease to be legal, valid and binding on Borrower
or any such Credit Party;
Section 9.13. Attachments. An attachment or
similar action shall be made on or taken against any of the
assets of any Consolidated Company with an Asset Value
exceeding $3,000,000 in aggregate and is not removed,
suspended or enjoined within 30 days of the same being made
or any suspension or injunction being lifted; then, and in
any such event, and at any time thereafter if any Event of
Default shall then be continuing, the Agent may, and upon
the written or telex request of the Required Lenders, shall,
by written notice to Borrower, take any or all of the follow
ing actions, without prejudice to the rights of the Agent,
any Lender or the holder of any Note to enforce its claims
against Borrower or any other Credit Party: (i) declare all
Commitments terminated, whereupon the pro rata Commitments
of each Lender shall terminate immediately and any
commitment fee shall forthwith become due and payable
without any other notice of any kind; and (ii) declare the
principal of and any accrued interest on the Loans, and all
other Obligations owing hereunder, to be, whereupon the same
shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby waived by Borrower; provided, that, if an Event
of Default specified in Section 9.07 shall occur, the result
which would occur upon the giving of written notice by the
Agent to any Credit Party, as specified in clauses (i) and
(ii) above, shall occur automatically without the giving of
any such notice.
ARTICLE X
THE AGENT
Section 10.01. Appointment of Agent. Each Lender
hereby designates SunTrust Bank, Atlanta and SunTrust Bank,
Central Florida Agents, and SunTrust Bank, Atlanta as
Administrative Agent ("Administrative Agent") to administer
all matters concerning the Loans and to act as herein
specified. Each Lender hereby irrevocably authorizes, and
each holder of any Note by the acceptance of a Note shall be
deemed irrevocably to authorize, the Agent and
Administrative Agent to take such actions on its behalf
under the provisions of this Agreement, the other Credit
Documents, and all other instruments and agreements referred
to herein or therein, and to exercise such powers and to
perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent and
Administrative Agent by the terms hereof and thereof and
such other powers as are reasonably incidental thereto.
Each Agent and Administrative Agent may perform any of its
duties hereunder by or through their agents or employees.
The provisions of this Section 10.01 are solely for the
benefit of Agents and the Administrative Agent, and Borrower
and the other Consolidated Companies shall not have any
rights as third party beneficiaries of any of the provisions
hereof. In performing its functions and duties under this
Agreement, each Agent and the Administrative Agent, as the
case may be, shall act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any
obligations towards or relationship of agency or trust with
or for the Borrower and the other Consolidated Companies.
Section 10.02. Nature of Duties of Agent. The
Agent and Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. None of the Agent
and Administrative Agent nor any of their respective
officers, directors, employees or agents shall be liable for
any action taken or omitted by it as such hereunder or in
connection herewith, unless caused by its or their gross
negligence or willful misconduct. The duties of the Agent
and Administrative Agent shall be ministerial and
administrative in nature; the Agent and Administrative Agent
shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender; and nothing in this
Agreement, express or implied, is intended to or shall be so
construed as to impose upon the Agent or Administrative
Agent any obligations in respect of this Agreement or the
other Credit Documents except as expressly set forth herein.
Section 10.03. Lack of Reliance on the Agent.
(a) Independently and without reliance upon the
Agent or Administrative Agent, each Lender, to the extent it
deems appropriate, has made and shall continue to make (i)
its own independent investigation of the financial
condition and affairs of the Credit Parties in connection
with the taking or not taking of any action in connection
herewith, and (ii) its own appraisal of the creditworthiness
of the Credit Parties, and, except as expressly provided in
this Agreement, the Agent or Administrative Agent shall have
no duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into
its possession before the making of the Loans or at any time
or times thereafter.
(b) The Agent and Administrative Agent shall not
be responsible to any Lender for any recitals, statements,
information, representations or warranties herein or in any
document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility, pri
ority or sufficiency of this Agreement, the Notes, the
Guaranty Agreements, or any other documents contemplated
hereby or thereby, or the financial condition of the Credit
Parties, or be required to make any inquiry concerning
either the performance or observance of any of the terms,
provisions or conditions of this Agreement, the Notes, the
Guaranty Agreements, or the other documents contemplated
hereby or thereby, or the financial condition of the Credit
Parties, or the existence or possible existence of any
Default or Event of Default; provided, however, to the
extent that the Agent or the Administrative Agent has been
advised that a Lender has not received any information
formally delivered to the Agent pursuant to Section 7.07,
the Agent shall deliver or cause to be delivered such
information to such Lender.
Section 10.04. Certain Rights of the Agent. If
the Agent or 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 Agent or Administrative Agent shall be
entitled to refrain from such act or taking such act, unless
and until the Agent or Administrative Agent shall have
received instructions from the Required Lenders; and the
Agent or Administrative Agent shall not incur liability in
any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action
whatsoever against the Agent or Administrative Agent as a
result of the Agent or Administrative Agent acting or
refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
Section 10.05. Reliance by Agent and
Administrative Agent. The Agent and Administrative Agent
shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier
message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be
genuine and correct and to have been signed, sent or made by
the proper Person. The Agent and Administrative Agent may
consult with legal counsel (including counsel for any Credit
Party), independent public accountants and other experts
selected by it and shall not be liable for any action taken
or omitted to be taken by it in good faith in accordance
with the advice of such counsel, accountants or experts.
Section 10.06. Indemnification of Agent and
Administrative Agent. To the extent the Agent and
Administrative Agent is not reimbursed and indemnified by
the Credit Parties, each Lender will reimburse and indemnify
the Agent and Administrative Agent, ratably according to the
respective amounts of the Loans outstanding under all
Facilities (or if no amounts are outstanding, ratably in
accordance with the Total Commitments), in either case, for
and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent and
Administrative Agent in performing its duties hereunder, in
any way relating to or arising out of this Agreement or the
other Credit Documents; provided that no Lender shall be
liable to the Agent or Administrative Agent for any portion
of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's or Administrative
Agent's gross negligence or willful misconduct.
Section 10.07. The Agent and Administrative Agent
in its Individual Capacity. With respect to its obligation
to lend under this Agreement, the Loans made by it and the
Notes issued to it, the Agent and Administrative Agent shall
have the same rights and powers hereunder as any other
Lender or holder of a Note and may exercise the same as
though it were not performing the duties specified herein;
and the terms "Lenders", "Required Lenders", "holders of
Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its
individual capacity. The Agent and Administrative Agent may
accept deposits from, lend money to, and generally engage in
any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of
the Consolidated Companies as if it were not performing the
duties specified herein, and may accept fees and other
consideration from the Consolidated Companies for services
in connection with this Agreement and otherwise without
having to account for the same to the Lenders.
Section 10.08. Holders of Notes. The Agent and
Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof
shall have been filed with the Agent and Administrative
Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority
or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in
exchange therefor.
Section 10.09. Successor Agent; Successor
Administrative Agent.
(a) The Agent and Administrative Agent may resign
at any time by giving written notice thereof to the Lenders
and Borrower and may be removed at any time with or without
cause by the Required Lenders; provided, however, the Agent
and Administrative Agent may not resign or be removed until
a successor Agent or Administrative Agent has been appointed
and shall have accepted such appointment. Upon any such
resignation or removal, the Required Lenders shall have the
right to appoint a successor Agent or Administrative Agent
subject to Borrower's prior written approval. If no suc
cessor Agent or Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Agent's
or Administrative Agent's giving of notice of resignation or
the Required Lenders' removal of the retiring Agent or
Administrative Agent, then the retiring Agent or
Administrative Agent may, on behalf of the Lenders, appoint
a successor Agent or Administrative Agent subject to
Borrower's prior written approval, which shall be a bank
which maintains an office in the United States, or a
commercial bank organized under the laws of the United
States of America or any State thereof, or any Affiliate of
such bank, having a combined capital and surplus of at least
$100,000,000. If at any time SunTrust Bank, Atlanta is
removed as a Lender, SunTrust Bank, Atlanta shall
simultaneously resign as Agent and Administrative Agent. If
at any time SunTrust Bank, Central Florida, National
Association is removed as a Lender, SunTrust Bank, Central
Florida, National Association, shall simultaneously resign
as Agent.
(b) Upon the acceptance of any appointment as the
Agent and Administrative Agent hereunder by a successor
Agent or Administrative Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent or
Administrative Agent, and the retiring Agent or
Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring
Agent's or Administrative Agent's resignation or removal
hereunder as Agent or Administrative Agent, the provisions
of this Article X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an
Agent or Administrative Agent under this Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Notices. All notices, requests
and other communications to any party hereunder shall be in
writing (including bank wire, telex, telecopy or similar
teletransmission or writing) and shall be given to such
party at its address or applicable teletransmission number
set forth on the signature pages hereof, or such other
address or applicable teletransmission number as such party
may hereafter specify by notice to the Agent and Borrower.
Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section
and the appropriate answerback is received, (ii) if given by
mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as
aforesaid, (iii) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section
and the appropriate confirmation is received, or (iv) if
given by any other means (including, without limitation, by
air courier), when delivered or received at the address
specified in this Section; provided that notices to the
Agent and Administrative Agent shall not be effective until
received.
Section 11.02. Amendments, Etc. No amendment or
waiver of any provision of this Agreement or the other
Credit Documents, nor consent to any departure by any Credit
Party therefrom, shall in any event be effective unless the
same shall be in writing and signed by 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, waiver or consent shall,
unless in writing and signed by all the Lenders do any of
the following: (i) waive any of the conditions specified in
Section 5.01 or 5.02, (ii) increase the Commitments or other
contractual obligations to Borrower under this Agreement,
(iii) reduce the principal of, or interest on, the Notes or
any fees hereunder, (iv) postpone any date fixed for the
payment in respect of principal of, or interest on, the
Notes or any fees hereunder, (v) change the percentage of
the Commitments or of the aggregate unpaid principal amount
of the Notes, or the number or identity of Lenders which
shall be required for the Lenders or any of them to take any
action hereunder, (vi) release any Guarantor from its
obligations under any Guaranty Agreement, (vii) modify the
definition of "Required Lenders," or (viii) modify this
Section 11.02. Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing and signed by the
Agent and Administrative Agent in addition to the Lenders
required hereinabove to take such action, affect the rights
or duties of the Agent and the Administrative Agent under
this Agreement or under any other Credit Document.
Section 11.03. No Waiver; Remedies Cumulative.
No failure or delay on the part of the Agent, any Lender or
any holder of a Note in exercising any right or remedy
hereunder or under any other Credit Document, and no course
of dealing between any Credit Party and the Agent, any
Lender or the holder of any Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any
right or remedy hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exer
cise of any other right or remedy hereunder or thereunder.
The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which
the Agent, any Lender or the holder of any Note would oth
erwise have. No notice to or demand on any Credit Party not
required hereunder or under any other Credit Document in any
case shall entitle any Credit Party to any other or further
notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent, the Lenders
or the holder of any Note to any other or further action in
any circumstances without notice or demand.
Section 11.04. Payment of Expenses, Etc.
Borrower shall:
(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable, out-
of-pocket costs and expenses of the Agent and the
Administrative Agent in the administration (both before
and after the execution hereof and including reasonable
expenses actually incurred relating to advice of
counsel as to the rights and duties of the Agent and
the Administrative Agent and the Lenders with respect
thereto) of, and in connection with the preparation,
execution and delivery of, preservation of rights
under, enforcement of, and, after a Default or Event of
Default, refinancing, renegotiation or restructuring
of, this Agreement and the other Credit Documents and
the documents and instruments referred to therein, and
any amendment, waiver or consent relating thereto
(including, without limitation, the reasonable fees
actually incurred and disbursements of counsel for the
Agent and the Administrative Agent), and in the case of
enforcement of this Agreement or any Credit Document
after an Event of Default, all such reasonable, out-of-
pocket costs and expenses (including, without
limitation, the reasonable fees actually incurred and
disbursements of counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the
applicable provisions of Section 4.07(b), pay and hold
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, the Notes
and any other Credit Documents, any collateral
described therein, or any payments due thereunder, and
save each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay
or omission to pay such Taxes; and
(iii) indemnify the Agent, the Administrative Agent
and each Lender, and their respective officers,
directors, employees, representatives and agents from,
and hold each of them harmless against, any and all
costs, losses, liabilities, claims, damages or expenses
incurred by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee") arising
out of or by reason of any investigation, litigation or
other proceeding related to any actual or proposed use
of the proceeds of any of the Loans or any Credit
Party's entering into and performing of the Agreement,
the Notes, or the other Credit Documents, including,
without limitation, the reasonable fees actually
incurred and disbursements of counsel (including
foreign counsel) incurred in connection with any such
investigation, litigation or other proceeding;
provided, however, Borrower shall not be obligated to
indemnify any Indemnitee for any of the foregoing
arising out of such Indemnitee's gross negligence or
willful misconduct;
(iv) without limiting the indemnities set forth in
subsection (iii) above, indemnify each Indemnitee for
any and all expenses and costs (including without
limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs),
losses, claims (including claims for contribution or
indemnity and including the cost of investigating or
defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose
before, during or after any Credit Party's ownership,
operation, possession or control of its business,
property or facilities or before, on or after the date
hereof, and including also any amounts paid incidental
to any compromise or settlement by the Indemnitee or
Indemnitees to the holders of any such claim),
lawsuits, liabilities, obligations, actions, judgments,
suits, disbursements, encumbrances, liens, damages
(including without limitation damages for contamination
or destruction of natural resources), penalties and
fines of any kind or nature whatsoever (including
without limitation in all cases the reasonable fees
actually incurred, other charges and disbursements of
counsel in connection therewith) incurred, suffered or
sustained by that Indemnitee based upon, arising under
or relating to Environmental Laws based on, arising out
of or relating to in whole or in part, the existence or
exercise of any rights or remedies by any Indemnitee
under this Agreement, any other Credit Document or any
related documents (but excluding those incurred,
suffered or sustained by any Indemnitee as a result of
any action taken by or on behalf of the Lenders with
respect to any Subsidiary of Borrower (or the assets
thereof) owned or controlled by the Lenders.
If and to the extent that the obligations of Borrower under
this Section 9.04 are unenforceable for any reason, Borrower
hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is
permissible under applicable law.
Section 11.05. Right of Setoff. In addition to
and not in limitation of all rights of offset that any
Lender or other holder of a Note may have under applicable
law, each Lender or other holder of a Note shall, upon the
occurrence of any Event of Default and whether or not such
Lender or such holder has made any demand or any Credit
Party's obligations are matured, have the right to
appropriate and apply to the payment of any Credit Party's
obligations hereunder and under the other Credit Documents,
all deposits of any Credit Party (general or special, time
or demand, provisional or final) then or thereafter held by
and other indebtedness or property then or thereafter owing
by such Lender or other holder to any Credit Party, whether
or not related to this Agreement or any transaction
hereunder. Each Lender shall promptly notify Borrower of
any offset hereunder.
Section 11.06. Benefit of Agreement.
(a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided that
Borrower may not assign or transfer any of its interest
hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans
at, to or for the account of, any of its branch offices or
the office of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of
its interests, rights and obligations under this Agreement
(including all or a portion of any of its Commitments and
the Loans at the time owing to it and the Notes held by it)
to any Eligible Assignee; provided, however, that (i) the
Administrative Agent and Borrower must give their prior
written consent to such assignment (which consent shall not
be unreasonably withheld or delayed) unless such assignment
is an Affiliate of the assigning Lender, (ii) the amount of
the Commitments, in the case of the Revolving Loan
Commitments and the Line of Credit Loan Commitments, or
Loans, in the case of assignment of Loans, of the assigning
Lender subject to each assignment (determined as of the date
the assignment and acceptance with respect to such
assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000, and (iii) the parties to each
such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together
with a Note or Notes subject to such assignment and, unless
such assignment is to an Affiliate of such Lender, a
processing and recordation fee of $2500. Borrower shall not
be responsible for such processing and recordation fee or
any costs or expenses incurred by any Lender or the
Administrative Agent in connection with such assignment.
From and after the effective date specified in each As
signment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof,
the assignee thereunder shall be a party hereto and to the
extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender
under this Agreement. Notwithstanding the foregoing, the
assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of
Commitments or Loans, as the case may be, of $5,000,000;
provided, however, no such minimum amount shall be required
with respect to any such assignment made at any time there
exists an Event of Default hereunder. Within five (5)
Business Days after receipt of the notice and the Assignment
and Acceptance, Borrower, at its own expense, shall execute
and deliver to the Administrative Agent, in exchange for the
surrendered Note or Notes, a new Note or Notes to the order
of such assignee in a principal amount equal to the
applicable Commitments or Loans assumed by it pursuant to
such Assignment and Acceptance and new Note or Notes to the
assigning Lender in the amount of its retained Commitment or
Commitments or amount of its retained Loans. Such new Note
or Notes shall be in an aggregate principal amount equal to
the aggregate principal amount of such surrendered Note or
Notes, shall be dated the date of the surrendered Note or
Notes which they replace, and shall otherwise be in
substantially the form attached hereto.
(d) Each Lender may, without the consent of
Borrower, the Administrative Agent or the Agent, sell
participations to one or more banks or other entities in all
or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments in
the Loans owing to it and the Notes held by it), provided,
however, that (i) no Lender may sell a participation in its
aggregate Commitments or Loans (after giving effect to any
permitted assignment hereof) in an amount in excess of fifty
percent (50%) of such aggregate Commitments or Loans,
provided, however, sales of participations to an Affiliate
of such Lender shall not be included in such calculation;
provided, however, no such maximum amount shall be ap
plicable to any such participation sold at any time there
exists an Event of Default hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged,
(iii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such
obligations, and (iv) the participating bank or other entity
shall not be entitled to the benefit (except through its
selling Lender) of the cost protection provisions contained
in Article IV of this Agreement, and (v) Borrower and the
Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's
rights and obligations under this Agreement and the other
Credit Documents, and such Lender shall retain the sole
right to enforce the obligations of Borrower relating to the
Loans and to approve any amendment, modification or waiver
of any provisions of this Agreement. Any Lender selling a
participation hereunder shall provide prompt written notice
to Borrower of the name of such participant.
(e) Any Lender or participant may, in connection
with the assignment or participation or proposed assignment
or participation, pursuant to this Section, disclose to the
assignee or participant or proposed assignee or participant
any information relating to Borrower or the other
Consolidated Companies furnished to such Lender by or on
behalf of Borrower or any other Consolidated Company. With
respect to any disclosure of confidential, non-public,
proprietary information, such proposed assignee or
participant shall agree to use the information only for the
purpose of making any necessary credit judgments with
respect to this credit facility and not to use the
information in any manner prohibited by any law, including
without limitation, the securities laws of the United
States. The proposed participant or assignee shall agree
not to disclose any of such information except (i) to
directors, employees, auditors or counsel to whom it is
necessary to show such information, each of whom shall be
informed of the confidential nature of the information, (ii)
in any statement or testimony pursuant to a subpoena or
order by any court, governmental body or other agency
asserting jurisdiction over such entity, or as otherwise
required by law (provided prior notice is given to Borrower
and the Agent unless otherwise prohibited by the subpoena,
order or law), and (iii) upon the request or demand of any
regulatory agency or authority with proper jurisdiction.
The proposed participant or assignee shall further agree to
return all documents or other written material and copies
thereof received from any Lender, the Agent or Borrower
relating to such confidential information unless otherwise
properly disposed of by such entity.
(f) Any Lender may at any time assign all or any
portion of its rights in this Agreement and the Notes issued
to it to a Federal Reserve Bank; provided that no such
assignment shall release the Lender from any of its
obligations hereunder.
(g) If (i) any Taxes referred to in Section
4.07(b) have been levied or imposed so as to require
withholdings or deductions by Borrower and payment by
Borrower of additional amounts to any Lender as a result
thereof, (ii) any Lender shall make demand for payment of
any material additional amounts as compensation for
increased costs pursuant to Section 4.10 or for its reduced
rate of return pursuant to Section 4.16, or (iii) any Lender
shall decline to consent to a modification or waiver of the
terms of this Agreement or the other Credit Documents
requested by Borrower, then and in such event, upon request
from Borrower delivered to such Lender and the Agent, such
Lender shall assign, in accordance with the provisions of
Section 11.06(c), all of its rights and obligations under
this Agreement and the other Credit Documents to another
Lender or an Eligible Assignee selected by Borrower, in
consideration for the payment by such assignee to the Lender
of the principal of, and interest on, the outstanding Loans
accrued to the date of such assignment, and the assumption
of such Lender's Total Commitment hereunder, together with
any and all other amounts owing to such Lender under any
provisions of this Agreement or the other Credit Documents
accrued to the date of such assignment.
Section 11.07. Governing Law; Submission to
Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT
MAY BE BROUGHT IN THE SUPERIOR COURT OF XXXXXX COUNTY,
GEORGIA, OR ANY OTHER COURT OF THE STATE OF GEORGIA OR OF
THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF
GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVE TRIAL BY JURY, AND BORROWER HEREBY IRREVOCABLY WAIVES
ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) BORROWER HEREBY IRREVOCABLY DESIGNATES THE
CORPORATION SERVICE COMPANY, ATLANTA, GEORGIA, AS ITS
DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND ON
BEHALF OF BORROWER, SERVICE OF PROCESS IN SUCH RESPECTIVE
JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR THE NOTES OR ANY DOCUMENT RELATED
THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS
SERVED ON SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY
SUCH LOCAL AGENT AND BY THE SERVER OF SUCH PROCESS BY MAIL
TO BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE
BELOW, BUT THE FAILURE OF BORROWER TO RECEIVE SUCH COPY
SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS.
BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO BORROWER
AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the
Agent, Administrative Agent, any Lender, any holder of a
Note or any Credit Party to serve process in any other
manner permitted by law or to commence legal proceedings or
otherwise proceed against Borrower in any other
jurisdiction.
Section 11.08. Independent Nature of Lenders'
Rights. The amounts payable at any time hereunder to each
Lender shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its rights
pursuant to this Agreement and its Notes, and it shall not
be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
Section 11.09. Counterparts. This Agreement may
be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same
instrument.
Section 11.10. Effectiveness; Survival.
(a) This Agreement shall become effective on the
date (the "Effective Date") on which all of the parties
hereto shall have signed a counterpart hereof (whether the
same or different counterparts) and shall have delivered the
same to the Administrative Agent pursuant to Section 12.01
or, in the case of the Lenders, shall have given to the
Agent or Administrative Agent written or telex notice
(actually received) that the same has been signed and mailed
to them.
(b) The obligations of Borrower under Sections
4.07(b), 4.10, 4.12, 4.13, 4.16, and 11.04 hereof shall sur
vive for ninety (90) days after the payment in full of the
Notes after the Final Maturity Date. All representations
and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this
Agreement, the other Credit Documents, and such other agree
ments and documents, the making of the Loans hereunder, and
the execution and delivery of the Notes.
Section 11.11. Severability. In case any
provision in or obligation under this Agreement or the other
Credit Documents shall be invalid, illegal or unenforceable,
in whole or in part, in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
Section 11.12. Independence of Covenants. All
covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by
any of such covenants, the fact that it would be permitted
by an exception to, or be otherwise within the limitation
of, another covenant, shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or
condition exists.
Section 11.13. Change in Accounting Principles,
Fiscal Year or Tax Laws. If (i) any preparation of the
financial statements referred to in Section 7.07 hereafter
occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial
Accounting Standards Board or the American Institute of
Certified Public Accounts (or successors thereto or agencies
with similar functions) (other than changes mandated by FASB
106) result in a material change in the method of
calculation of financial covenants, standards or terms found
in this Agreement, (ii) there is any change in Borrower's
fiscal quarter or fiscal year, or (iii) there is a material
change in federal tax laws which materially affects any of
the Consolidated Companies' ability to comply with the xxxxx
cial covenants, standards or terms found in this Agreement,
Borrower and the Required Lenders agree to enter into
negotiations in order to amend such provisions so as to
equitably reflect such changes with the desired result that
the criteria for evaluating any of the Consolidated
Companies' financial condition shall be the same after such
changes as if such changes had not been made. Unless and
until such provisions have been so amended, the provisions
of this Agreement shall govern.
Section 11.14. Headings Descriptive; Entire
Agreement. The headings of the several sections and
subsections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or
construction of any provision of this Agreement. This
Agreement, the other Credit Documents, and the agreements
and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the
parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements,
representations and understandings related to such subject
matters.
Section 11.15. Time is of the Essence. Time is
of the essence in interpreting and performing this Agreement
and all other Loan Documents.
Section 11.16. Usury. It is the intent of the
parties hereto not to violate any federal or state law, rule
or regulation pertaining either to usury or to the
contracting for or charging or collecting of interest, and
Borrower and Lenders agree that, should any provision of
this Agreement or of the Notes, or any act performed
hereunder or thereunder, violate any such law, rule or
regulation, then the excess of interest contracted for or
charged or collected over the maximum lawful rate of
interest shall be applied to the outstanding principal
indebtedness due to Lenders by Borrower under this
Agreement.
Section 11.17. Construction. Should any
provision of this Agreement require judicial interpretation,
the parties hereto agree that the court interpreting or
construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against one
party by reason of the rule of construction that a document
is to be more strictly construed against the party who
itself or through its agents prepared the same, it being
agreed that Borrower, Agent, Administrative Agent, Lenders
and their respective agents have participated in the
preparation hereof.
Section 11.18. Effect of Amendment and
Restatement. Upon the effectiveness of this Agreement on
the Closing Date pursuant to Section 5.01: (a) the terms and
conditions of the Original Credit Agreement shall be amended
as set forth herein and, as so amended, shall be restated in
their entirety, but only with respect to the rights, duties
and obligations between the Lenders, the Agent, the
Administrative Agent and Borrower accruing from and after
the Closing Date; (b) all "Revolving Loans" and "Line of
Credit Loans" outstanding under the Original Credit
Agreement shall be deemed to be Revolving Loans and Line of
Credit Loans, respectively, outstanding under this
Agreement; (c) all indemnification obligations of Borrower
under the Original Credit Agreement and other Loan Documents
(as defined in the Original Credit Agreement) shall survive
the execution and delivery of this Agreement and shall
continue in full force and effect for the benefit of Lenders
and any other Person indemnified under the Original Credit
Agreement or any other Loan Document (as defined in the
Original Credit Agreement) at any time prior to the Closing
Date; (d) the execution, delivery and effectiveness of this
Agreement shall not operate as a waiver of any right, power
or remedy of the Agent, the Administrative Agent or the
Lenders under the Original Credit Agreement, nor constitute
a waiver of any covenant, agreement or obligation under the
Original Credit Agreement, except to the extent that such
covenant agreement or obligation is no longer set forth
herein or is modified hereby; and (e) any and all references
in the Loan Documents to the Original Credit Agreement
shall, without further action of the parties, be deemed a
reference to the Original Credit Agreement, as amended and
restated by this Agreement, and as this Agreement shall be
further amended or amended and restated from time to time
hereafter.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in Atlanta, Georgia,
by their duly authorized officers as of the day and year first
above written.
BORROWER:
XXXXXX SUPPLY, INC.
Address for Notices: /s/ J. Xxxxxxx Xxxx
00 X. Xxxxxx Xxxxxx J. Xxxxxxx Xxxx
Xxxxx 000 Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxx /s/ Xxxxxxxx Xxxxxxxxxxx
Xxxxxxxx Xxxxxxxxxxx
Assistant Secretary
[CORPORATE SEAL]
Address for Notices: SUNTRUST BANK, ATLANTA,
individually
as Agent and as Administrative
Twenty-five Park Place Agent
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. X.X. Xxxxxx By: /s/ X. XxXxxxxxx Xxxxxx, III
X. XxXxxxxxx Xxxxxx, III
Telex No. 542210 Title: Group Vice President
Answerback: TRUSCO INT ATL
Telecopy No. 404/588-8833
By: /s/ Xxxxxxxx X. Xxxxx
Payment Office: Xxxxxxxx X. Xxxxx
Title: Corporate Banking Officer
Xxxxxx-xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
________________________________
Revolving Loan Commitment: $18,750,000
Pro Rata Share of Revolving Loan Commitment: 18.75%
Line of Credit Commitment: $9,375,000
Pro Rata Share of Line of Credit Commitment: 18.75%
Address for Notices: SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually
and
Agent
000 X. Xxxxxx Xxxxxx
0xx Xxxxx By: /s/ Xxxx X. Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx Title: FVP
By: /s/ Xxxxxx X. Xxxxxx
Telecopy No. 407/237-6894 Title: VP
Payment Office:
000 X. Xxxxxx Xxxxxx
0xx Xxxxx
________________________________
Revolving Loan Commitment: $18,750,000
Pro Rata Share of Revolving Loan Commitment: 18.75%
Line of Credit Commitment: $9,375,000
Pro Rata Share of Line of Credit Commitment: 18.75%
Address for Notices: FIRST UNION NATIONAL BANK
OF FLORIDA
00 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000 By: /s/ Xxxxxxx X. Xxxxx
Attn: Xx. Xxxx Xxxxxx
Title: Vice President
Telecopy No. 407/649-5732
Payment Office:
00 X. Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
________________________________
Revolving Loan Commitment: $21,250,000
Pro Rata Share of Revolving Loan Commitment: 21.25%
Line of Credit Commitment: $10,625,000
Pro Rata Share of Line of Credit Commitment: 21.25%
Address for Notices: NATIONSBANK, N.A. (SOUTH)
000 X. Xxxxxx Xxxxx, 0xx Xx. By: /s/ Miles X. Xxxxxxx III
Xxxxx, Xxxxxxx 00000 Miles X. Xxxxxxx III
Attn: Mr. Miles Xxxxxxx Title: Vice President
Telecopy No. 813/224-5948
Payment Office:
NationsBank, N.A.
1 Independence Center
00xx Xxxxx
XXX-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxx
________________________________
Revolving Loan Commitment: $21,250,000
Pro Rata Share of Revolving Loan Commitment: 21.25%
Line of Credit Commitment: $10,625,000
Pro Rata Share of Line of Credit Commitment: 21.25%
Address for Notices: SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION
000-0xx Xxxxxx Xxxxx,
Xxxxx 000 By: /s/ Xxxx X. Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxx Title: Vice President
Telecopy No. 813/898-5319
Payment Office:
000 Xxxxx 00xx Xxxxxx
XX Banking, 9th Floor
Xxxxxxxxxx, Xxxxxxx 00000
________________________________
Revolving Loan Commitment: $20,000,000
Pro Rata Share of Revolving Loan Commitment: 20%
Line of Credit Commitment: $10,000,000
Pro Rata Share of Line of Credit Commitment: 20%
