EXHIBIT 4.2
EXECUTION COUNTERPART
REVOLVING CREDIT AGREEMENT
(364-DAY)
DATED AS OF MARCH 27, 2002
AMONG
XXXXXXX FURNITURE COMPANIES, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
as Administrative Agent
================================================================================
SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger
TABLE OF CONTENTS
Page
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Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Existing Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.6 - Permitted Asset Sales
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Intentionally Reserved
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Guaranty Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is made and entered
into as of March 27, 2002, by and among XXXXXXX FURNITURE COMPANIES, INC., a
Maryland corporation (the "BORROWER"), the several banks and other financial
institutions from time to time party hereto (the "LENDERS"), SUNTRUST BANK, in
its capacity as Administrative Agent for the Lenders (the "ADMINISTRATIVE
AGENT"), WACHOVIA SECURITIES, INC., as Syndication Agent and BANK OF AMERICA,
N.A., as Documentation Agent.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders establish a
$45,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments as defined
herein, are willing to establish the requested revolving credit facility in
favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the opening paragraph hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed
by such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For purposes of
this definition, "CONTROL" shall mean the power, directly or indirectly, either
to (i) vote 5% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to
exercise voting power, by contract or otherwise. The terms "CONTROLLING",
"CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have meanings correlative
thereto.
"AGGREGATE REVOLVING COMMITMENT AMOUNT" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount equals $45,000,000.
"AGGREGATE REVOLVING COMMITMENTS" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate
of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean, with respect to all Revolving Loans
outstanding on any date, a percentage per annum determined by reference to the
applicable Fixed Charge Coverage Ratio in effect on such date as set forth on
Schedule I attached hereto; provided, that a change in the Applicable Margin
resulting from a change in the Fixed Charge Coverage Ratio shall be effective
on the second day after which the Borrower delivers the financial statements
required by Section 5.1(a) or (b) and the compliance certificate required by
Section 5.1(c); provided further, that if at any time the Borrower shall have
failed to deliver such financial statements and such certificate, the
Applicable Margin shall be at Level I until such time as such financial
statements and certificate are delivered, at which time the Applicable Margin
shall be determined as provided above. Notwithstanding the foregoing, the
Applicable Margin from the Closing Date until the financial statements and
compliance certificate for the Borrower's Fiscal Quarter ending March 31, 2002
shall be at Level II.
"APPLICABLE PERCENTAGE" shall mean, with respect to the commitment fee
as of any date, the percentage per annum determined by reference to the
applicable Fixed Charge Coverage Ratio in effect on such date as set forth on
Schedule I attached hereto; provided, that a change in the Applicable
Percentage resulting from a change in the Fixed Charge Coverage Ratio shall be
effective on the second Business Day after which the Borrower delivers the
financial statements required by Section 5.1(a) or (b) and the compliance
certificate required by Section 5.1(c); provided, further, that if at any time
the Borrower shall have failed to deliver such financial statements and such
certificate, the Applicable Percentage shall be at Level I until such time as
such financial statements and certificate are delivered, at which time the
Applicable Percentage shall be determined as provided above. Notwithstanding
the foregoing, the Applicable Percentage for the commitment fee from the
Closing Date until the financial statements and compliance certificate for the
Borrower's Fiscal Quarter ending March 31, 2002 shall be at Level II.
"APPROVED FUND" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business and that is administered or
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managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"ASSET COVERAGE RATIO" shall mean, as of any date, the ratio of (a)
the sum of (i) Consolidated Accounts Receivable as of such date plus (ii)
Consolidated Inventory as of such date to (b) Consolidated Total Debt as of
such date.
"ASSET LIKE KIND EXCHANGE" shall mean a like-kind exchange of real
estate assets of the Borrower or any of its Subsidiaries made in accordance
with Section 1031 and Section 1033 of the Code.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of
the foregoing, any day on which dealings in Dollars are carried on in the
London interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and
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the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) acting in concert (other than by Class A Shareholders) acquiring
beneficial ownership, of 30% or more of the outstanding shares of the Class A
Common Stock of the Borrower; or (c) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Borrower by Persons
who were neither (i) nominated by the current board of directors or (ii)
appointed by directors so nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
(or for purposes of Section 2.18(b), by such Lender's holding company, if
applicable) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of
this Agreement.
"CLASS" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
and when used in reference to any Commitment, refers to whether such Commitment
is a Revolving Commitment.
"CLASS A COMMON STOCK" shall mean all issued and outstanding Class A
common stock of the Borrower.
"CLASS A SHAREHOLDERS" shall mean the Persons that own the Class A
Common Stock on the Closing Date, together with their spouses and direct
descendants who acquire shares of Class A Common Stock by sale, transfer or
gift.
"CLOSING DATE" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment.
"CONSOLIDATED ACCOUNTS RECEIVABLE" shall mean, as of any date, all
accounts receivable of the Borrower and its Subsidiaries as of such date
determined on a consolidated basis in accordance with GAAP.
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"CONSOLIDATED EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense,
(ii) income tax expense, (iii) depreciation and amortization, and (iv) all
other non-cash charges, less (c) any cash payments made during such period that
relate to non-cash charges included in determining Consolidated EBITDA for such
period or any prior period, in each case determined on a consolidated basis in
accordance with GAAP for such period.
"CONSOLIDATED EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA for such period and (b) Consolidated Lease Expense for such period.
"CONSOLIDATED FIXED CHARGES" shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of (a) Consolidated
Interest Expense for such period, (b) scheduled principal payments made on
Consolidated Total Debt during such period, and (c) Consolidated Lease Expense
for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Leases Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Transactions during such period (whether or not
actually paid or received during such period).
"CONSOLIDATED INVENTORY" shall mean all inventory of the Borrower and
its Subsidiaries as of such date determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED LEASE EXPENSE" shall mean, for the Borrower and its
Subsidiaries for any period, (i) the aggregate amount of fixed and contingent
rentals payable by the Borrower and its Subsidiaries with respect to leases of
real and personal property, less (ii) the aggregate amount of all rental income
payable to the Borrower and its Subsidiaries with respect to leases or
subleases of real and personal property, excluding in each case Capital Lease
Obligations, determined on a consolidated basis in accordance with GAAP for
such period.
"CONSOLIDATED NET INCOME" shall mean, for the Borrower and its
Subsidiaries for any period, the net income (or loss) of the Borrower and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, but excluding therefrom (to the extent otherwise included therein)
(i) any extraordinary gains or losses and the cumulative effect of changes in
accounting principles, (ii) any gains attributable to write-ups of assets,
(iii) any equity interest of the Borrower or any Subsidiary of the Borrower in
the unremitted earnings of any Person that is not a Subsidiary and (iv) any
income (or loss) of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any
Subsidiary on the date that such Person's assets are acquired by the Borrower
or any Subsidiary.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (i) the total
assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance
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sheet as of such date prepared in accordance with GAAP, after eliminating all
amounts properly attributable to minority interests, if any, in the stock and
surplus of Subsidiaries, minus (ii) the total liabilities of the Borrower and
its Subsidiaries that would be reflected on the Borrower's consolidated balance
sheet as of such date prepared in accordance with GAAP.
"CONSOLIDATED TOTAL ADJUSTED DEBT" shall mean, as of any date, (i)
Consolidated Total Debt (other than all Synthetic Lease Obligations to the
extent such Synthetic Lease Obligations are included in clause (ii) below as
Operating Lease Obligations), plus (ii) to the extent not included in clause
(i), all Operating Lease Obligations of Borrower and its Subsidiaries measured
at the present value of such obligations (using a 10% discount rate).
"CONSOLIDATED TOTAL CAPITAL" shall mean, as of any date, the sum of
(i) Consolidated Total Adjusted Debt as of such date and (ii) Consolidated Net
Worth as of such date.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date, all Indebtedness
of the Borrower and its Subsidiaries determined on a consolidated basis
(excluding Indebtedness of the type described in subsection (xi) of the
definition of Indebtedness), including, but not limited to, all Obligations.
For purposes of determining Consolidated Total Debt, the principal amount of
any Synthetic Lease Obligation shall be deemed to be the amount that would be
reflected on the balance sheet of the Borrower and its Subsidiaries if such
Synthetic Lease Obligation were characterized as a capital lease rather than an
operating lease.
"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"CREDIT SERVICES" shall mean Haverty Credit Services, Inc., a
Tennessee corporation.
"CREDIT SERVICES CREDIT AGREEMENT" shall mean that certain Revolving
Credit Agreement, dated as of the date hereof, by and among Credit Services,
the lenders from time to time party thereto and SunTrust Bank, as
administrative agent, as amended, restated, supplemented or otherwise modified
from time to time.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section
2.13(c).
"DEFERRED COMPENSATION PLAN" shall mean the Top Hat Mutual Fund Option
Plan approved by the Board of Directors of the Borrower on January 15, 1999.
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural Person)
approved by the
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Administrative Agent and unless (x) such Person is taking delivery of an
assignment in connection with physical settlement of a credit derivatives
transaction or (y) an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed). If
the consent of the Borrower to an assignment or to an Eligible Assignment is
required hereunder (including a consent to an assignment which does not meet
the minimum assignment thresholds specified in paragraph (b)(i) of Section
10.4), the Borrower shall be deemed to have given its consent five (5) Business
Days after the date notice thereof has actually been delivered by the assigning
Lender (through the Administrative Agent) to the Borrower, unless such consent
is expressly refused by the Borrower prior to such fifth Business Day.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines,
natural resource damages, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) any actual
or alleged violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d)
the Release or threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the
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receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D. The Eurodollar
Reserve Percentage shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, and by the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which any Lender is located and (c) in the case of a Foreign
Lender, any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any
time that such Foreign Lender designates a new lending office, other than taxes
that have accrued prior to the designation of such lending office that are
otherwise not Excluded Taxes, and (iii) is attributable to such Foreign
Lender's failure to comply with Section 2.20(e).
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
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"FEE LETTER" shall mean that certain fee letter, dated as of February
5, 2002, executed by SunTrust Capital Markets, Inc. and SunTrust Bank and
accepted by Borrower.
"FISCAL QUARTER" shall mean a fiscal quarter of the Borrower.
"FISCAL YEAR" shall mean a fiscal year of the Borrower.
"FIXED CHARGE COVERAGE RATIO" shall mean, as of any date, the ratio of
(a) Consolidated EBITDAR to (b) Consolidated Fixed Charges, in each case for
the four fiscal quarter period of Borrower ending on or immediately prior to
such date.
"FOREIGN LENDER" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"GUARANTY AGREEMENT" shall mean that certain Guaranty Agreement dated
as of the date hereof executed by the Guarantors in favor of the Administrative
Agent for the benefit of the Lenders, substantially in the form of Exhibit D,
as amended, restated, supplemented or otherwise modified from time to time.
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"GUARANTORS" shall mean Credit Services and each other Subsidiary of
the Borrower now existing or hereafter acquired.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING OBLIGATIONS" of any Person shall mean any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all
renewals, extensions and modifications of any Hedging Transactions and any and
all substitutions for any Hedging Transactions.
"HEDGING TRANSACTION" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between such Person and any Lender or Affiliate of any Lender that is a
rate swap, basis swap, forward rate transaction, commodity swap, interest rate
option, foreign exchange transaction, cap transaction, floor transaction,
collateral transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business on terms customary in the trade; provided, that for purposes
of Section 8.1(f), trade payables overdue by more than 120 days shall be
included in this definition except to the extent that any of such trade
payables are being disputed in good faith and by appropriate measures), (iv)
all obligations of such Person under any conditional sale or other title
retention agreement(s) relating to property acquired by such Person, (v) all
Capital Lease Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person in respect of letters of credit, acceptances or
similar extensions of credit, (vii) all Guarantees of such Person of the type
of Indebtedness described in clauses (i) through (v) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all Hedging Obligations. The
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a joint venturer,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
10
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit E,
among the Borrower, the Guarantors and the Administrative Agent as amended,
restated, supplemented or otherwise amended from time to time.
"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum dated February, 2002 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"INTEREST PERIOD" shall mean with respect to any Eurodollar Borrowing,
a period of one, two, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence
on the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such Business Day falls in another calendar
month, in which case such Interest Period would end on the next preceding
Business Day;
(iii) any Interest Period which begins on the last Business Day of
a calendar month or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period
shall end on the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Telerate Screen (or
such other page on that service or such other service designated by the British
Banker's Association for the display of such Association's Interest Settlement
Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on the day
that is two Business Days prior to the first day of the Interest Period or if
such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time;
provided, that if the Administrative Agent determines that the relevant
foregoing sources are unavailable for the relevant Interest Period, LIBOR shall
mean the rate of interest determined by the Administrative Agent to be the
average (rounded upward, if necessary, to the nearest 1/100th of 1%) of the
rates per annum at which deposits in Dollars are offered to the Administrative
Agent two (2) Business Days preceding the first day of such Interest Period by
leading banks in the London interbank market as of 10:00 a.m. for delivery on
11
the first day of such Interest Period, for the number of days comprised therein
and in an amount comparable to the amount of the Eurodollar Loan of the
Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease
having the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Revolving Credit Notes (if any), the Guaranty Agreement, the Indemnity and
Contribution Agreement, all Notices of Revolving Borrowing, all Notices of
Conversion/Continuation and any and all other instruments, agreements,
documents and writings executed in connection with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Guarantors.
"LOANS" shall mean all Revolving Loans in the aggregate or any of
them, as the context shall require.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets, liabilities or
prospects of the Borrower or of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent and the Lenders under any of the Loan Documents or (iv)
the legality, validity or enforceability of any of the Loan Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans)
or Hedging Obligations, of any one or more of the Borrower and the Subsidiaries
in an aggregate principal amount exceeding $7,500,000. For purposes of
determining Material Indebtedness, the "principal amount" of any Hedging
Obligations at any time shall be the Net Xxxx-to-Market Exposure of such
Hedging Obligations at such time.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET XXXX-TO-MARKET EXPOSURE" of any Person shall mean, as of any
date, with respect to any Hedging Obligation, the excess (if any) of all
unrealized losses over all unrealized profits of such Person arising from such
Hedging Obligation. "Unrealized losses" shall mean the fair market value of the
cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of such date (assuming the Hedging Transaction was to be
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terminated as of that date), and "unrealized profits" means the fair market
value of the gain to such Person of replacing such Hedging Transaction as of
such date (assuming such Hedging Transaction were to be terminated as of that
date).
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth in
Section 2.3.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to the
Administrative Agent or any Lender pursuant to or in connection with this
Agreement or any other Loan Document, including without limitation, all
principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or
like proceeding relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), all
reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all fees and expenses of counsel to the
Administrative Agent and any Lender incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, and all Hedging Obligations owing to the Administrative Agent, any
Lender or any of their Affiliates incurred in order to limit interest rate or
fee fluctuation with respect to the Loans, and all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing, together
with all renewals, extensions, modifications or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, including, without limitation, any
Receivables Financings, (ii) any liability of such Person under any sale and
leaseback transactions which do not create a liability on the balance sheet of
such Person, (iii) any Synthetic Lease Obligation or (iv) any obligation
arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
"OPERATING LEASE OBLIGATIONS" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as operating leases on a balance sheet of such Person under GAAP.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document other than Excluded Taxes.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(d).
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"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, or such other
location as to which the Administrative Agent shall have given written notice
to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes or special assessments not yet
due or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained in
accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created
in the ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings and with respect
to which adequate reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
14
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within
six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof issued
or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under
the laws of the United States or any state thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in
clause (iii) above; and
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above.
"PERMITTED RECEIVABLES SALE" shall mean a sale of accounts receivables
with recourse, or discount or otherwise for less then the face value thereof
pursuant to a Receivables Financing.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity,
or any Governmental Authority.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"PRO RATA SHARE" shall mean, with respect to any Commitment of any
Lender at any time, a percentage, the numerator of which shall be such Lender's
Commitment (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Revolving Credit
Exposure), and the denominator of which shall be the sum of such Commitments of
all Lenders (or if such Commitments have been terminated or expired or the
Loans have been declared to be due and payable, all Revolving Credit Exposure
of all Lenders under such Commitments).
"PRUDENTIAL AGREEMENT" shall mean that certain Note Agreement dated
December 29, 1993 by and between the Borrower and The Prudential Insurance
Company of America relating to the Borrower's $92,500,000 in aggregate
principal amount 10.10% notes due April 15, 2000, 7.16% notes due April 15,
2007, 7.44% notes due October 13, 2008 and 7.95% notes due August 15, 2008,
either as originally executed or as thereafter amended, modified or
supplemented.
"RECEIVABLES FINANCING" shall mean a transaction pursuant to which
funds are advanced to the Borrower or any of its Subsidiaries in exchange for
which the Borrower or such Subsidiaries shall sell, pledge, contribute or place
a Lien on any or all of its accounts or notes
15
receivables to repay, in whole or in part, such funds. However, this definition
shall not include any debit card, credit card or revolving charge sales where
the obligor is a financial institution.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding 51% or
more of the aggregate outstanding Revolving Commitments at such time or if the
Lenders have no Commitments outstanding, then Lenders holding 51% or more of
the Revolving Credit Exposure.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulations, or
determination of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"RESPONSIBLE OFFICER" shall mean any of the chairman, president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of
the foregoing with the consent of the Administrative Agent; and, with respect
to the financial covenants only, the chief financial officer or the treasurer
of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section 7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower in an
aggregate principal amount not exceeding the amount set forth with respect to
such Lender on the signature pages to this Agreement, or in the case of a
Person becoming a Lender after the Closing Date, the amount of the assigned
"Revolving Commitment" as provided in the Assignment and Acceptance executed by
such Person as an assignee, as the same may be increased or deceased pursuant
to terms hereof.
"REVOLVING COMMITMENT TERMINATION DATE" shall mean the earliest of (i)
Xxxxx 00, 0000, (xx) the date on which the Revolving Commitments are terminated
pursuant to Section 2.8 and (iii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
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"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"REVOLVING LOAN" shall mean a loan made by a Lender to the Borrower
under its Revolving Commitment, which may either be a Base Rate Loan or a
Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SALE/LEASEBACK TRANSACTION" shall have the meaning assigned to such
term in Section 7.9.
"SUBSIDIARY" shall mean, with respect to any Person (the "PARENT"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (ii) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent. Unless otherwise indicated, all references to "Subsidiary"
hereunder shall mean a Subsidiary of the Borrower.
"SYNTHETIC LEASE" means a lease transaction under which the parties
intend that (i) the lease will be treated as an "operating lease" by the lessee
pursuant to Statement of Financial Accounting Standards No. 13, as amended and
(ii) the lessee will be entitled to various tax and other benefits ordinarily
available to owners (as opposed to lessees) of like property.
"SYNTHETIC LEASE OBLIGATIONS" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases that are attributable to principal and, without duplication,
(ii) all rental and purchase price payment obligations of such Person under
such Synthetic Leases assuming such Person exercises the option to purchase the
lease property at the end of the lease term.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"3.5 YEAR CREDIT AGREEMENT" shall mean that certain Revolving Credit
Facility dated as of the date hereof, by and among the Borrower, the lenders
from time to time party thereto and SunTrust Bank, as administrative agent.
17
"TYPE", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving Eurodollar
Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any
covenant in Article VI to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Article VI for such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". In the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the word "to"
means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as it was originally executed or as it may from time to time be
amended, supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein), (ii) any
reference herein to any Person shall be construed to include such Person's
successors and permitted assigns, (iii) the words "hereof", "herein" and
"hereunder" and words of similar import shall be construed to refer to this
Agreement as a whole and not to any particular provision hereof, (iv) all
references to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v)
all references to a specific time shall be construed to refer to the time in
the city and state of the Administrative Agent's principal office, unless
otherwise indicated.
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ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon
the terms and conditions herein set forth, the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2; provided, that
in no event shall the aggregate principal amount of all outstanding Revolving
Loans, exceed at any time the Aggregate Revolving Commitments from time to time
in effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment
or (b) the sum of the aggregate Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving Commitment Amount. During the Availability
Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans in accordance with the terms and conditions of this Agreement; provided,
that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 attached hereto (a "NOTICE OF
REVOLVING BORROWING") (x) prior to 1:00 p.m. (Atlanta, Georgia time) on the
requested date of each Base Rate Borrowing and (y) prior to 1:00 p.m. (Atlanta,
Georgia time) at least three (3) Business Days prior to the requested date of
each Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be
irrevocable and shall specify: (i) the aggregate principal amount of such
Borrowing, (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the
case of a Eurodollar Borrowing, the duration of the initial Interest Period
applicable thereto (subject to the provisions of the definition of Interest
Period). Each Revolving Borrowing shall consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may request. The aggregate principal amount
of each Eurodollar Borrowing shall be not less than $2,500,000 or a larger
multiple of $500,000, and the aggregate principal amount of each Base Rate
Borrowing shall not be less than $1,000,000 or a larger multiple of $100,000.
At no time shall the total number of Eurodollar Borrowings outstanding at any
time exceed six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each
Lender of the details thereof and the amount of such Lender's Revolving Loan to
be made as part of the requested Revolving Borrowing.
SECTION 2.4. RESERVED.
SECTION 2.5. RESERVED.
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SECTION 2.6. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately
available funds by 3:30 p.m. (Atlanta, Georgia time) to the Administrative
Agent at the Payment Office. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts that it receives,
in like funds by the close of business on such proposed date, to an account
maintained by the Borrower with the Administrative Agent or at the Borrower's
option, by effecting a wire transfer of such amounts to an account designated
by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing
in which such Lender is participating that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall immediately
pay such corresponding amount to the Administrative Agent together with
interest at the rate specified for such Borrowing. Nothing in this subsection
shall be deemed to relieve any Lender from its obligation to fund its Pro Rata
Share of any Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis
of their respective Pro Rata Shares. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender shall
be obligated to make its Loans provided to be made by it hereunder, regardless
of the failure of any other Lender to make its Loans hereunder.
SECTION 2.7. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing)
20
of each Borrowing (a "NOTICE OF CONVERSION/CONTINUATION") that is to be
converted or continued, as the case may be, (x) prior to 1:00 p.m.(Atlanta,
Georgia time) on the requested date of a conversion into a Base Rate Borrowing
and (y) prior to 1:00 p.m. (Atlanta, Georgia time) three (3) Business Days
prior to a continuation of or conversion into a Eurodollar Borrowing. Each such
Notice of Conversion/Continuation shall be irrevocable and shall specify (i)
the Borrowing to which such Notice of Continuation/Conversion applies and if
different options are being elected with respect to different portions thereof,
the portions thereof that are to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
shall be specified for each resulting Borrowing); (ii) the effective date of
the election made pursuant to such Notice of Continuation/Conversion, which
shall be a Business Day, (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing
is to be a Eurodollar Borrowing, the Interest Period applicable thereto after
giving effect to such election, which shall be a period contemplated by the
definition of "Interest Period". If any such Notice of Continuation/Conversion
requests a Eurodollar Borrowing but does not specify an Interest Period, the
Borrower shall be deemed to have selected an Interest Period of one month. The
principal amount of any resulting Borrowing shall satisfy the minimum borrowing
amount for Eurodollar Borrowings and Base Rate Borrowings set forth in Section
2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as,
a Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS.
(a) Unless previously terminated, all Revolving Commitments shall
terminate on the Revolving Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.8 shall be in an amount of at
least $2,500,000 and any larger multiple of $500,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures
of all Lenders.
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SECTION 2.9. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date.
(b) Reserved.
SECTION 2.10. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made
by such Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate records in which
shall be recorded (i) the Revolving Commitment of each Lender, (ii) the amount
of each Loan made hereunder by each Lender, the Class and Type thereof and the
Interest Period applicable thereto, (iii) the date of each continuation thereof
pursuant to Section 2.7, (iv) the date of each conversion of all or a portion
thereof to another Type pursuant to Section 2.7, (v) the date and amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of such Loans and (vi) both the
date and amount of any sum received by the Administrative Agent hereunder from
the Borrower in respect of the Loans and each Lender's Pro Rata Share thereof.
The entries made in such records shall be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided, that
the failure or delay of any Lender or the Administrative Agent in maintaining
or making entries into any such record or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Loans (both principal
and unpaid accrued interest) of such Lender in accordance with the terms of
this Agreement.
(b) At the request of any Lender at any time, the Borrower agrees that
it will execute and deliver to such Lender a Revolving Credit Note payable to
the order of such Lender.
SECTION 2.11. OPTIONAL PREPAYMENTS.
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, without premium or penalty,
by giving irrevocable written notice (or telephonic notice promptly confirmed
in writing) to the Administrative Agent no later than (i) in the case of
prepayment of any Eurodollar Borrowing, 1:00 p.m. not less than three (3)
Business Days prior to any such prepayment, and (ii) in the case of any
prepayment of any Base Rate Borrowing, 1:00 p.m. on the date of such
prepayment. Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each Borrowing or
portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued interest
to such date on the amount so prepaid in accordance with Section 2.13(e);
provided, that if a Eurodollar Borrowing is prepaid on a date other than the
last day of an Interest Period applicable thereto, the Borrower shall also pay
all amounts required pursuant to Section 2.19. Each partial prepayment of any
Loan shall be in an amount that would be
22
permitted in the case of an advance of a Revolving Borrowing of the same Type
pursuant to Section 2.3. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
SECTION 2.12. MANDATORY PREPAYMENTS. If at any time the Revolving
Credit Exposure of all Lenders exceeds the aggregate principal amount of the
Revolving Credit Commitments at such time, the Borrower shall immediately repay
Revolving Loans in an amount equal to such excess, together with all accrued
and unpaid interest on such excess amount and any amounts due under Section
2.19. Each prepayment of a Borrowing shall be applied ratably first to the
Revolving Base Rate Loans to the full extent thereof, and then to Revolving
Eurodollar Loans to the full extent thereof.
SECTION 2.13. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base
Rate in effect from time to time and on each Eurodollar Loan at the Adjusted
LIBO Rate for the applicable Interest Period in effect for such Loan, plus, in
each case, the Applicable Margin in effect from time to time.
(b) Reserved.
(c) While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrower shall pay interest ("DEFAULT
INTEREST") with respect to all Eurodollar Loans at the rate otherwise
applicable for the then-current Interest Period plus an additional 2% per annum
until the last day of such Interest Period, and thereafter, and with respect to
all Base Rate Loans and all other Obligations hereunder (other than Loans and
Hedging Obligations), at the Base Rate plus the Applicable Margin plus an
additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and
December and on the Revolving Commitment Termination Date. Interest on all
outstanding Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans having an
Interest Period in excess of three months, on each day which occurs every three
months, after the initial date of such Interest Period, and on the Revolving
Commitment Termination Date. Interest on any Loan which is converted into a
Loan of another Type or which is repaid or prepaid shall be payable on the date
of such conversion or on the date of any such repayment or prepayment (on the
amount repaid or prepaid) thereof. All Default Interest shall be payable on
demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and
the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
23
SECTION 2.14. FEES.
(a) The Borrower shall pay to the Administrative Agent for its own
account fees in the amounts and at the times previously agreed upon by the
Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee, which shall accrue at
the Applicable Percentage (determined daily in accordance with Schedule I) on
the daily amount of the unused Revolving Commitment of such Lender during the
Availability Period.
(c) Reserved.
(d) Payments. Accrued fees shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on June
30, 2002 and on the Revolving Commitment Termination Date (and if later, the
date the Loans shall be repaid in their entirety).
SECTION 2.15. COMPUTATION OF INTEREST AND FEES. All computations of
interest and fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable (to
the extent computed on the basis of days elapsed). Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
SECTION 2.16. INABILITY TO DETERMINE INTEREST RATES. If prior to
the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans
for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations
of the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any
Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing has
previously been given that it elects
24
not to borrow on such date, then such Revolving Borrowing shall be made as a
Base Rate Borrowing.
SECTION 2.17. ILLEGALITY. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Eurodollar Revolving Loans,
or to continue or convert outstanding Loans as or into Eurodollar Loans, shall
be suspended. In the case of the making of a Eurodollar Revolving Borrowing,
such Lender's Revolving Loan shall be made as a Base Rate Loan as part of the
same Revolving Borrowing for the same Interest Period and if the affected
Eurodollar Loan is then outstanding, such Loan shall be converted to a Base
Rate Loan either (i) on the last day of the then current Interest Period
applicable to such Eurodollar Loan if such Lender may lawfully continue to
maintain such Loan to such date or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain such Eurodollar Loan to
such date. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, designate a different
Applicable Lending Office if such designation would avoid the need for giving
such notice and if such designation would not otherwise be disadvantageous to
such Lender in the good faith exercise of its discretion.
SECTION 2.18. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO Rate);
or
(ii) impose on any Lender or the eurodollar interbank market any
other condition affecting this Agreement or any Eurodollar Loans made by
such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
reduce the amount received or receivable by such Lender hereunder (whether of
principal, interest or any other amount), then the Borrower shall promptly pay,
upon written notice from and demand by such Lender on the Borrower (with a copy
of such notice and demand to the Administrative Agent), to the Administrative
Agent for the account of such Lender, within five Business Days after the date
of such notice and demand, additional amount or amounts sufficient to
compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender shall have determined that on or after the date of
this Agreement any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's capital (or on
the capital of such Lender's parent corporation) as a consequence of its
obligations hereunder or under to a level below that which such Lender or
25
such Lender's parent corporation could have achieved but for such Change in Law
(taking into consideration such Lender's policies or the policies of such
Lender's parent corporation with respect to capital adequacy) then, from time
to time, within five (5) Business Days after receipt by the Borrower of written
demand by such Lender (with a copy thereof to the Administrative Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender or such Lender's parent corporation for any such reduction
suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or such Lender's parent corporation, as the
case may be, specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower (with a copy to the Administrative Agent) and shall
be conclusive, absent manifest error. The Borrower shall pay any such Lender
such amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right
to demand such compensation.
SECTION 2.19. FUNDING INDEMNITY. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrower
to borrow, prepay, convert or continue any Eurodollar Loan on the date
specified in any applicable notice (regardless of whether such notice is
withdrawn or revoked) then, in any such event, the Borrower shall compensate
each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case
of a Eurodollar Loan, such loss, cost or expense shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (A) the amount of
interest that would have accrued on the principal amount of such Eurodollar
Loan if such event had not occurred at the Adjusted LIBO Rate applicable to
such Eurodollar Loan for the period from the date of such event to the last day
of the then current Interest Period therefor (or in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest that would
accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount
payable under this Section 2.19 submitted to the Borrower by any Lender (with a
copy to the Administrative Agent) shall be conclusive, absent manifest error.
SECTION 2.20. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent or any Lender (as the case
may be) shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) the
26
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within five (5) Business Days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate. Without limiting the generality of the foregoing, each Foreign
Lender agrees that it will deliver to the Administrative Agent and the Borrower
(or in the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2) duly
completed copies of (i) Internal Revenue Service Form W-8 ECI, or any successor
form thereto, certifying that the payments received from the Borrower hereunder
are effectively connected with such Foreign Lender's conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN,
or any successor form thereto, certifying that such Foreign Lender is entitled
to benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest; or (iii)
Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the
payment to the Foreign Lender qualifies as "portfolio interest" exempt from
U.S. withholding tax under Code section 871(h) or 881(c), and (B) stating that
(1) the Foreign Lender is not a bank for purposes of Code section 881(c)(3)(A),
or the obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary course of its
trade or business, within the meaning of that section; (2) the Foreign Lender
is not a 10% shareholder of the Borrower within the meaning of Code section
871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a controlled
foreign
27
corporation that is related to the Borrower within the meaning of Code section
881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may be
applicable to the Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each such
Foreign Lender shall deliver to the Borrower and the Administrative Agent such
forms on or before the date that it becomes a party to this Agreement (or in
the case of a Participant, on or before the date such Participant purchases the
related participation). In addition, each such Foreign Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Foreign Lender. Each such Foreign Lender shall promptly
notify the Borrower and the Administrative Agent at any time that it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the
Internal Revenue Service for such purpose).
SECTION 2.21. PAYMENTS GENERALLY; PRO RATA TREATMENT.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m. (Atlanta, Georgia
time), on the date when due, in immediately available funds, free and clear of
any defenses, rights of set-off, counterclaim, or withholding or deduction of
taxes. Any amounts received after such time on any date may, in the discretion
of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at the Payment Office,
except that payments pursuant to Sections 2.18, 2.19 and 2.20 and 10.3 shall be
made directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be made payable for
the period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall obtain payment in respect of any principal of
or interest on any of its Revolving Loans that would result in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans;
provided, that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and
28
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount or amounts
due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to 2.6(b), 2.21(d) or 10.3(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.22. MITIGATION OF OBLIGATIONS. If any Lender requests
compensation under Section 2.18, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.20, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the sole judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable
under Section 2.18 or Section 2.20, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
SECTION 2.23. RESERVED.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders to make Loans hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 10.2).
29
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent)
required to be reimbursed or paid by the Borrower hereunder, under any other
Loan Document and under any agreement with the Administrative Agent or SunTrust
Capital Markets, Inc., as Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of
each party hereto or written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page
of this Agreement) that such party has signed a counterpart of this
Agreement;
(ii) duly executed Revolving Credit Notes payable to such Lender;
(iii) the duly executed Guaranty Agreement and Indemnity and
Contribution Agreement;
(iv) Reserved;
(v) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of its bylaws and of the
resolutions of its boards of directors, authorizing the execution, delivery
and performance of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such Loan Party
executing the Loan Documents to which it is a party;
(vi) certified copies of the articles of incorporation or other
charter documents of each Loan Party, together with certificates of good
standing or existence, as may be available from the Secretary of State of
the jurisdiction of incorporation or formation of such Loan Party and each
other jurisdiction where such Loan Party is required to be qualified to do
business as a foreign corporation;
(vii) a favorable written opinion of Xxxxx, Xxxxxxxx & Xxxxxxx,
counsel to the Loan Parties, addressed to the Administrative Agent and each
of the Lenders, and covering such matters relating to the Loan Parties, the
Loan Documents and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and signed by a
Responsible Officer, confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of Section 3.2;
(ix) a duly executed Notice of Borrowing;
(x) a duly executed funds disbursement agreement for the initial
Borrowing;
30
(xi) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired; and
(xii) copies of the consolidated financial statements of Borrower
and its Subsidiaries for the Fiscal Years ended 1999, 2000, and 2001,
including balance sheets, income and cash flow statements audited by
independent public accountants of recognized national standing and prepared
in conformity with GAAP and such other financial information as the
Administrative Agent may reasonably request;
(xiii) certificates of insurance issued on behalf of insurers of the
Borrower and all guarantors, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the Borrower
and all guarantors, naming the Administrative Agent as additional insured;
and
(xiv) a certified copy of the Prudential Agreement as in effect on
the date hereof.
(c) The Borrower and all other parties thereto shall have executed and
delivered the 3.5 Year Credit Agreement, which shall be in form and substance
satisfactory to the Administrative Agent and the Required Lenders, and the
Administrative Agent and the Required Lenders shall have received certified
copies thereof, together with evidence that all conditions precedent to the
effectiveness thereof have been satisfied and all transactions contemplated by
the 3.5 Year Credit Agreement have been consummated.
(d) Credit Services and all other parties thereto shall have executed
and delivered the Credit Services Credit Agreement, which shall be in form and
substance satisfactory to the Administrative Agent and the Required Lenders,
and the Administrative Agent and the Required Lenders shall have received
certified copies thereof, together with evidence that all conditions precedent
to the effectiveness thereof have been satisfied and all transactions
contemplated by the Credit Services Credit Agreement have been consummated.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct in all material respects on and as
of the date of such Borrowing before and after giving effect thereto, except
for those representations and warranties made as of a specific date;
31
(c) since the date of the audited financial statements of the Borrower
described in Section 4.4, there shall have been no change which has had or
could reasonably be expected to have a Material Adverse Effect; and
(d) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Revolving Credit Notes, in sufficient counterparts or copies for each of the
Lenders and shall be in form and substance satisfactory in all respects to the
Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has
all requisite power and authority to carry on its business as now conducted,
and (iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it
is a party are within such Loan Party's organizational powers and have been
duly authorized by all necessary organizational, and if required, stockholder,
action. This Agreement has been duly executed and delivered by the Borrower,
and constitutes, and each other Loan Document to which any Loan Party is a
party, when executed and delivered by such Loan Party, will constitute, valid
and binding obligations of the Borrower or such Loan Party (as the case may
be), enforceable against it in accordance with their respective terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or
32
filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect (b) will not violate any
applicable law, rule or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any
judgment, order or ruling of any Governmental Authority, (c) will not violate
or result in a default under any indenture, material agreement or other
material instrument binding on the Borrower or any of its Subsidiaries or any
of its assets or give rise to a right thereunder to require any payment to be
made by the Borrower or any of its Subsidiaries including, without limitation,
the Prudential Agreement and any Receivables Financing and (d) will not result
in the creation or imposition of any Lien on any asset of the Borrower or any
of its Subsidiaries.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished to
each Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 2001 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended
audited by Ernst & Young LLP. Such financial statements fairly present the
consolidated financial condition of the Borrower and its Subsidiaries as of
such dates and the consolidated results of operations for such periods in
conformity with GAAP consistently applied, subject to year end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii). Since December 31, 2001 there have been no changes with
respect to the Borrower and its Subsidiaries which have had or could reasonably
be expected to have, singly or in the aggregate, a Material Adverse Effect.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) that in any manner draws
into question the validity or enforceability of this Agreement or any other
Loan Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability, (iii) has received notice of
any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and
each Subsidiary is in compliance with (a) all applicable laws, rules,
regulations, judgments and orders of any Governmental Authority, and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
as defined in, or subject to regulation under, the
33
Public Utility Holding Company Act of 1935, as amended or (c) otherwise subject
to any other regulatory scheme limiting its ability to incur debt.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and each
other Person for whose taxes the Borrower or any Subsidiary could become liable
have timely filed or caused to be filed all Federal income tax returns and all
other material tax returns that are required to be filed by them, and have paid
all taxes shown to be due and payable on such returns or on any assessments
made against it or its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental Authority, except (i)
to the extent the failure to do so would not have a Material Adverse Effect or
(ii) where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves in accordance with GAAP. As of the
Closing Date, the charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of such taxes are adequate, and no tax
liabilities that could be materially in excess of the amount so provided are
anticipated.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the
Loans will be used for "purchasing" or "carrying" any "margin stock" with the
respective meanings of each of such terms under Regulation U as now and from
time to time hereafter in effect or for any purpose that violates the
provisions of the applicable Margin Regulations.
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed by
more than $7,500,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $7,500,000 the fair market value
of the assets of all such underfunded Plans.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good title to, or
valid leasehold interests in, all of its real and personal property material to
the operation of its business, free and clear of any Liens except Permitted
Encumbrances.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks,
tradenames, copyrights, franchises, licenses, and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person, except for
any such infringements that, individually or in the aggregate, would not have a
Material Adverse Effect.
34
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports
that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by any other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein, taken as a whole, in light of the circumstances under which they were
made, not misleading;
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of organization of,
and the type of, each Subsidiary, as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan remains
unpaid:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year, a copy of the annual audited report for such Fiscal Year
for the Borrower and its Subsidiaries, containing a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and the related consolidated and consolidating statements
of income, stockholders' equity and cash flows (together with all footnotes
thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting
forth in the case of the consolidated statements in comparative form the
figures for the previous Fiscal Year, all in reasonable detail and reported on
by Ernst & Young LLP or other independent public accountants of nationally
recognized standing (without a "going concern" or like qualification, exception
or explanation and without any qualification or exception as to scope of such
audit) to
35
the effect that such financial statements present fairly in all material
respects the financial condition and the results of operations of the Borrower
and its Subsidiaries for such Fiscal Year on a consolidated and consolidating
basis in accordance with GAAP and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end
of each of the first three Fiscal Quarters, an unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter
and the related unaudited consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed
portion of such Fiscal Year, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of
Borrower's previous Fiscal Year, all certified by the chief financial officer
or treasurer of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of the chief financial
officer or treasurer of the Borrower, (i) certifying as to whether there exists
a Default or Event of Default on the date of such certificate, and if a Default
or an Event of Default then exists, specifying the details thereof and the
action which the Borrower has taken or proposes to take with respect thereto,
(ii) setting forth in reasonable detail calculations demonstrating compliance
with Article VI and (iii) stating whether any change in GAAP or the application
thereof has occurred since the date of the Borrower's audited financial
statements referred to in Section 4.4 and, if any change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements
of any Default or Event of Default (which certificate may be limited to the
extent required by accounting rules or guidelines); provided that such
accounting firm shall not be liable to any Person if it did not obtain such
knowledge which would not be disclosed in the course of an audit conducted
under GAAP;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition
of the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
36
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or, to the
knowledge of the Borrower, affecting the Borrower or any Subsidiary which, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development by which
the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to
any Environmental Liability, (iii) receives notice of any claim with respect to
any Environmental Liability, or (iv) becomes aware of any basis for any
Environmental Liability and in each of the preceding clauses, which
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $7,500,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective material rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and requirements of any Governmental Authority applicable to its
business and properties, including without limitation, all Environmental Laws,
ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge at or before maturity, all
of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
37
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions
in relation to its business and activities to the extent necessary to prepare
the consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will, and
will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, at the Administrative
Agent's or Lenders' expense if no Event of Default has occurred and is
continuing and otherwise at the expense of the Borrower, all at such reasonable
times and as often as the Administrative Agent or any Lender may reasonably
request after reasonable prior notice to the Borrower; provided, however, if an
Event of Default has occurred and is continuing, no prior notice shall be
required.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except where the failure to do so,
either individually or it the aggregate, could not reasonably be expected to
result in a Material Adverse Effect and (b) maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or
similar businesses operating in the same or similar locations.
SECTION 5.9. USE OF PROCEEDS. The Borrower will use the proceeds
of all Loans to finance working capital needs, capital expenditures and for
other general corporate purposes of the Borrower and its Subsidiaries. No part
of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that would violate any rule or regulation of the Board of Governors
of the Federal Reserve System, including Regulations T, U or X.
SECTION 5.10. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary
is acquired or formed after the Closing Date, the Borrower will, within ten
(10) business days after such Subsidiary is acquired or formed, notify the
Administrative Agent and the Lenders thereof and will cause such Subsidiary to
become a Guarantor by joining the Guaranty Agreement and the Indemnity and
Contribution Agreement pursuant to joinder agreements in form and substance
satisfactory to the Administrative Agent and the Required Lenders and will
cause such Subsidiary to deliver simultaneously therewith similar documents
applicable to such Subsidiary required under Section 3.1 as reasonably
requested by the Administrative Agent.
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ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee remains unpaid:
SECTION 6.1. FIXED CHARGE COVERAGE RATIO. The Borrower and its
Subsidiaries shall maintain on a consolidated basis, as of the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2002, a
Fixed Charge Coverage Ratio of not less than 1.50:1.00.
SECTION 6.2. TOTAL ADJUSTED DEBT TO TOTAL CAPITAL. The Borrower
and its Subsidiaries shall maintain on a consolidated basis, as of the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2002,
a ratio of Consolidated Total Adjusted Debt to Consolidated Total Capital of
not more than 0.65:1.0.
SECTION 6.3. ASSET COVERAGE RATIO The Borrower and its
Subsidiaries shall maintain on a consolidated basis, as of the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2002, an
Asset Coverage Ratio of not less than 1.2:1.0.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee remains unpaid:
SECTION 7.1. INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately
prior to giving effect to such extension, renewal or replacement) or shorten
the maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof; provided, that such Indebtedness
is incurred prior to or within 90 days after such acquisition or the completion
of such construction or improvements or extensions, renewals, and replacements
of any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted
39
average life thereof; provided further, that the aggregate principal amount of
such Indebtedness does not exceed $25,000,000 at any time outstanding;
(d) Indebtedness of the Borrower owing to any Subsidiary and of
any Subsidiary owing to the Borrower or any other Subsidiary;
(e) Guarantees by the Borrower of Indebtedness of any Subsidiary
permitted hereunder and by any Subsidiary of Indebtedness of the Borrower or
any other Subsidiary permitted hereunder;
(f) Indebtedness of the Borrower arising under the 3.5 Year
Credit Agreement and Guarantees by Subsidiaries of Borrower of such
Indebtedness;
(g) Indebtedness of Credit Services arising under the Credit
Services Credit Agreement and Guarantees by Borrower and its other Subsidiaries
of such Indebtedness;
(h) Hedging Obligations permitted by Section 7.10;
(i) Indebtedness of the Borrower and its Subsidiaries arising
under Receivables Financings, provided, that at the time any such Receivables
Financing is entered into, (x) no Default or Event of Default has occurred and
is continuing, (y) after giving pro forma effect to such Receivables Financing,
the Borrower is in compliance with the financial covenants set forth in Article
VI and (z) the Borrower has delivered a certificate to the Lenders certifying
the conditions set forth in clauses (x) and (y) and setting forth in reasonable
detail calculations demonstrating pro forma compliance with the financial
covenants set forth in Article VI;
(j) Synthetic Lease Obligations incurred after the Closing Date;
provided that (i) at the time any such Synthetic Lease Obligation is incurred,
(x) no Default or Event of Default has occurred and is continuing, (y) after
giving pro forma effect to such Synthetic Lease Obligation, the Borrower is in
compliance with the financial covenants set forth in Article VI and (z) the
Borrower has delivered a certificate to the Lenders certifying the conditions
set forth in clauses (x) and (y) and setting forth in reasonable detail
calculations demonstrating pro forma compliance with the financial covenants
set forth in Article VI and (ii) the aggregate amount of Synthetic Lease
Obligations does not exceed $40,000,000 at any one time;
(k) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof; provided, that any extensions,
renewals, and replacements of any such Indebtedness do not increase the
outstanding principal amount thereof (immediately prior to giving effect to
such extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof; provided further, that the aggregate principal amount of
such Indebtedness does not exceed $25,000,000 at any time outstanding; and
(l) other unsecured Indebtedness of the Borrower in an aggregate
principal amount not to exceed at any time 25% of Consolidated Net Worth as of
the last day of the
40
immediately preceding Fiscal Year for which audited financial statements have
been delivered to the Lenders.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Liens created in favor of the Administrative Agent for the
benefit of the Lenders pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower
or any Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets
to secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by Section 7.1(c),
(ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of
any Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower;
provided, that any such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which it secures on
the date that such Person becomes a Subsidiary or the date of such merger or
the date of such acquisition;
(f) Liens incurred in connection with a Receivables Financing and
Synthetic Lease Obligations permitted under Section 7.1;
(g) Liens upon or in any fixed or capital assets to secure the
purchase price or the cost of construction or improvement of such fixed or
capital assets or to secure Indebtedness incurred solely for the purpose of
financing the acquisition, construction or improvement of such fixed or capital
assets (including Liens securing any Capital Lease Obligations); provided, that
(i) such Lien secures Indebtedness permitted by Section 7.1(k), (ii) such Lien
does not extend to any other asset, and (iii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such fixed or
capital assets; and
(h) extensions, renewals, or replacements of any Lien referred to
in paragraphs (a) through (f) of this Section; provided, that the principal
amount of the Indebtedness secured
41
thereby is not increased and that any such extension, renewal or replacement is
limited to the assets originally encumbered thereby.
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise
dispose of (in a single transaction or a series of transactions) all or
substantially all of its assets (in each case, whether now owned or hereafter
acquired) or all or substantially all of the stock of any of its Subsidiaries
(in each case, whether now owned or hereafter acquired) or liquidate or
dissolve; provided, that if at the time thereof and immediately after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing (i) the Borrower or any Subsidiary may merge with a Person if the
Borrower (or such Subsidiary if the Borrower is not a party to such merger) is
the surviving Person, (ii) any Subsidiary may merge into another Subsidiary so
long as the surviving Subsidiary is a Guarantor and (iii) any Subsidiary may
sell, transfer, lease or otherwise dispose of all or substantially all of its
assets to the Borrower or to a Guarantor; provided, that any such merger
involving a Person that is not a wholly-owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and
businesses reasonably related thereto.
SECTION 7.4. INVESTMENTS, LOANS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger), any capital stock, evidence of Indebtedness
or other securities (including any option, warrant, or other right to acquire
any of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person (all of the foregoing being collectively
called "INVESTMENTS"), or purchase or otherwise acquire (in one transaction or
a series of transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary, except:
(a) Investments existing on the date hereof and set forth on
Schedule 7.4 (excluding Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrower in or to any Subsidiary and
by any Subsidiary to the Borrower or in or to another Subsidiary;
(e) loans or advances, or Guaranties of loans or advances, to
employees, officers or directors of the Borrower or any Subsidiary in the
ordinary course of business, including, without limitation, those for travel,
relocation and related expenses; provided, however, that the
42
aggregate amount of all such loans, advances and Guaranties does not exceed
$1,000,000 at any time;
(f) Asset Like Kind Exchanges permitted by Section 7.6;
(g) Hedging Obligations permitted by Section 7.10;
(h) creation of Subsidiaries to the extent that the Borrower is
in compliance with Section 5.10;
(i) Investments made pursuant to the Deferred Compensation Plan;
and
(j) other Investments that in the aggregate do not exceed
$10,000,000 in any Fiscal Year.
SECTION 7.5. RESTRICTED PAYMENTS. The Borrower will not, and will
not permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend or distribution on any class of its stock,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of capital stock or Indebtedness subordinated to the
Obligations of the Borrower or any options, warrants, or other rights to
purchase such capital stock or such Indebtedness, whether now or hereafter
outstanding (each, a "RESTRICTED PAYMENT"), except for (i) dividends and
distributions payable by the Borrower solely in shares of any class of its
common stock, (ii) Restricted Payments made by any Subsidiary to the Borrower
or to another Subsidiary and (iii) cash dividends paid on, and cash redemptions
of, the common stock of the Borrower so long as (x) no Default or Event of
Default has occurred and is continuing at the time such dividend is paid or
redemption is made, and (y) the aggregate amount of all such Restricted
Payments made by the Borrower in any Fiscal Year does not exceed 50% of
Consolidated Net Income (if greater than $0) earned during the immediately
preceding fiscal year; provided, further, that in the event that such
Restricted Payments actually paid in any Fiscal Year are less than the maximum
amount permitted in such year, the unused permitted amount for such Fiscal Year
may be carried forward one (but only one) Fiscal Year to the immediately
following Fiscal Year.
SECTION 7.6. SALE OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's common stock to any Person other than the
Borrower or any wholly-owned Subsidiary of the Borrower (or to qualify
directors if required by applicable law), except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for operations
disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business;
43
(c) Permitted Receivables Sales under Receivables Financings
permitted under Section 7.1;
(d) the sale or other disposition for fair market value of the
distribution centers and other land held for development listed on Schedule 7.6;
(e) the sale of real estate in connection with any Asset Like
Kind Exchange; provided, that at the time any such Asset Like Kind Exchange is
entered into, (a) no Default or Event of Default has occurred and is
continuing, (b) after giving pro forma effect to such Asset Like Kind Exchange,
the Borrower is in compliance with the financial covenants set forth in Article
VI and (c) the Borrower has delivered a certificate to the Lenders certifying
the conditions set forth in clauses (a) and (b) and setting forth in reasonable
detail calculations demonstrating pro forma compliance with the financial
covenants set forth in Article VI;
(f) the sale of assets in Sale/Leaseback Transactions permitted
under Section 7.9; and
(g) the sale or other disposition of other assets in an aggregate
amount not to exceed 5% of the consolidated total assets of the Borrower as of
the last day of the immediately prior Fiscal Year;
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its wholly-owned Subsidiaries
not involving any other Affiliates and (c) any Restricted Payment permitted by
Section 7.5.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement, the 3.5 Year Credit Agreement, the Credit Services Credit
Agreement, the Prudential Agreement or Synthetic Leases existing on the Closing
Date or Synthetic Leases entered into thereafter with substantially similar
terms and, (ii) clause (a) shall not apply to restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions and conditions apply only to the property or assets securing
such Indebtedness and (iii) clause (a) shall not apply to customary provisions
in leases and other contracts restricting the assignment thereof.
44
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrower will
not, and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred (each, a "Sale/Leaseback Transaction"), unless at the time
such Sale/Leaseback Transaction is entered into (a) no Default or Event of
Default has occurred and is continuing, (b) after giving pro forma effect to
such Sale/ Leaseback Transaction, the Borrower is in compliance with the
financial covenants set forth in Article VI and (c) the Borrower has delivered a
certificate to the Lenders certifying the conditions set forth in clauses (a)
and (b) and setting forth in reasonable detail calculations demonstrating pro
forma compliance with the financial covenants set forth in Article VI.
SECTION 7.10. HEDGING TRANSACTIONS. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiaries is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which the Borrower or any of its
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any capital stock or any Indebtedness or (ii)
as a result of changes in the market value of any capital stock or any
Indebtedness) is not a Hedging Obligations entered into in the ordinary course
of business to hedge or mitigate risks.
SECTION 7.11. AMENDMENT TO CHARTER DOCUMENTS. The Borrower will
not, and will not permit any Subsidiary to, amend, modify or waive any of its
rights in a manner materially adverse to the Lenders under its certificate of
incorporation, bylaws or other organizational documents.
SECTION 7.12. ACCOUNTING CHANGES. The Borrower will not, and will
not permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required or permitted by GAAP, or
change the Fiscal Year of the Borrower or of any Subsidiary, except to change
the fiscal year of a Subsidiary to conform its Fiscal Year to that of the
Borrower without the prior written consent of the Required Lenders, which
consent shall not be unreasonably withheld.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events
(each an "Event of Default") shall occur:
45
(a) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of this
Section 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, 5.3, 5.7, 5.9 or 5.10 (with respect to
any Loan Party's existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant
or agreement contained in this Agreement (other than those referred to in
clauses (a), (b) and (d) above) or any other Loan Document, and such failure
shall remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or
as guarantor or other surety) shall fail to pay any principal of or premium or
interest on any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a voluntary
case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section,
46
(iii) apply for or consent to the appointment of a custodian, trustee, receiver,
liquidator or other similar official for the Borrower or any such Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or any substantial
part of its assets, under any federal, state or foreign bankruptcy, insolvency
or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay,
shall admit in writing its inability to pay, or shall fail to pay, its debts as
they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding $7,500,000; or
(k) any judgment or order for the payment of money in excess of
$7,500,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against
the Borrower or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect, and there shall be a period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist;
(n) any provision of any Guaranty Agreement shall for any reason
cease to be valid and binding on, or enforceable against, any Guarantor, or any
Guarantor shall so state in writing, or any Guarantor shall seek to terminate
its Guaranty Agreement;
(o) an Event of Default shall occur under any other Loan Document;
or
(p) an "Event of Default" shall occur under the Credit Services
Credit Agreement, the 3.5 Year Credit Agreement or the Prudential Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by
47
notice to the Borrower, take any or all of the following actions, at the same or
different times: (i) terminate the Commitments, whereupon the Commitment of each
Lender shall terminate immediately; (ii) declare the principal of and any
accrued interest on the Loans, and all other Obligations owing hereunder other
than Hedging Obligations, to be, whereupon the same shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; (iii) exercise all remedies
contained in any other Loan Document; and (iv) exercise any other remedies
available at law or in equity; and that, if an Event of Default specified in
either clause (g) or (h) shall occur, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon, and all fees, and all other Obligations other than Hedging
Obligations shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder or
under the other Loan Documents by or through any one or more sub-agents or
attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent or attorney-in-fact and the Related Parties of the Administrative
Agent, any such sub-agent and any such attorney-in-fact and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(b) Reserved.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its
48
sub-agents or attorneys-in-fact with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.2) or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall not be responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall not be deemed to have knowledge of any Default or Event of Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or any Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms and conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent. The Administrative Agent
may consult with legal counsel (including counsel for the Borrower) concerning
all matters pertaining to such duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of
the Lenders acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each of the Lenders also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
49
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or Event
of Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States of America or any state thereof or a bank which maintains
an office in the United States, having a combined capital and surplus of at
least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. If within 45 days after written notice is given of
the retiring Administrative Agent's resignation under this Section 9.7 no
successor Administrative Agent shall have been appointed and shall have accepted
such appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
SECTION 9.9. DOCUMENTATION AGENT AND SYNDICATION AGENT. Each
Lender hereby designates Wachovia Securities, Inc. as Syndication Agent and Bank
of America, N.A.,
50
as Documentation Agent and agrees that the Documentation Agent and the
Syndication Agent shall have no duties or obligations under any Loan Documents
to any Lender or any Loan Party.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
To the Borrower: Xxxxxxx Furniture Companies, Inc
000 Xxxxxxx Xxxxx Xx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopy Number: 000-000-0000
To the Administrative Agent: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Telecopy Number: 000-000-0000
With a copy to: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. E./ 2nd
Floor
Atlanta, Georgia 30308
Attention: Xxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent shall not be effective until actually received by such Person at its
address specified in this Section 10.1.
51
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent or any Lender
in exercising any right or power hereunder or any other Loan Document, and no
course of dealing between the Borrower and the Administrative Agent or any
Lender, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law. No waiver of any provision of this Agreement
or any other Loan Document or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph
(b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default or Event of Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or
the other Loan Documents, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment or waiver shall:
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or interest thereon or any
fees hereunder or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date for the termination or reduction of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.21 (b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders which are
required to waive,
52
amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the consent of each Lender; (vi) release any
guarantor or limit the liability of any such guarantor under any guaranty
agreement, without the written consent of each Lender; (vii) release all or
substantially all collateral (if any) securing any of the Obligations, without
the written consent of each Lender; provided further, that no such agreement
shall amend, modify or otherwise affect the rights, duties or obligations of the
Administrative Agent without the prior written consent of the Administrative
Agent. Any consent of the Borrower otherwise required hereunder shall not be
required if an Event of Default has occurred and is continuing.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs
and expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and its Affiliates, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan Document shall
be consummated) and (ii) all out-of-pocket costs and expenses (including,
without limitation, the reasonable fees, charges and disbursements of outside
counsel and the allocated cost of inside counsel) incurred by the Administrative
Agent or any Lender in connection with the enforcement or protection of its
rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing (each, an "INDEMNITEE")
against, and hold each of them harmless from, any and all costs, losses,
liabilities, claims, damages and related expenses, including the fees, charges
and disbursements of any counsel for any Indemnitee, which may be incurred by or
asserted against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement or any other agreement
or instrument contemplated hereby, the performance by the parties hereto of
their respective obligations hereunder or the consummation of any of the
transactions contemplated hereby, (ii) any Loan or any actual or proposed use of
the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned by the Borrower or any
Subsidiary or any Environmental Liability related in any way to the Borrower or
any Subsidiary or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided, that the 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 as determined by a court of competent
jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and
each of the Lenders harmless from and against, any and all present and future
stamp, documentary, and other similar taxes with respect to this Agreement and
any other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each
53
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent under clauses (a), (b) or (c)
hereof, each Lender severally agrees to pay to the Administrative Agent such
Lender's Pro Rata Share (determined as of the time that the unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to actual or direct damages) arising out of, in connection with or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the transactions contemplated therein, any Loan or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000, in the case of any assignment of a Revolving Loan,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consent (each such consent
not to be unreasonably withheld or delayed), (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among
54
separate Commitments on a non-pro rata basis, and (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $1,000, and
the Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the Eligible 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, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.18, 2.19, 2.20 and 10.3. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (d) of
this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may, without the consent of, or notice to, the
Borrower or the Administrative Agent sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's rights
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver with respect to the following to the extent
affecting such Participant: (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the termination or
reduction of any
55
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.21(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby , without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders which are required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the consent of
each Lender; (vi) release any guarantor or limit the liability of any such
guarantor under any guaranty agreement without the written consent of each
Lender except to the extent such release is expressly provided under the terms
of the Guaranty Agreement; or (vii) release all or substantially all collateral
(if any) securing any of the Obligations. Subject to paragraph (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.18, 2.19, and 2.20 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.18 and Section 2.20 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.20
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.20(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be construed
in accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the non-exclusive jurisdiction of the United
States District Court of the Northern District of Georgia, and of any state
court of the State of Georgia located in Xxxxxx County and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Georgia state court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent or any Lender may
56
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against the Borrower or its properties in the courts of
any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1. Nothing
in this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
SECTION 10.8. SURVIVAL. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any
57
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.19, 2.20, 2.21, and 10.3 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans
and the Commitments or the termination of this Agreement or any provision
hereof. All representations and warranties made herein, in the certificates,
reports, notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the other Loan
Documents, and the making of the Loans
SECTION 10.9. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.10. CONFIDENTIALITY. Each of the Administrative Agent and
each Lender agrees to take normal and reasonable precautions to maintain the
confidentiality of any information designated in writing as confidential and
provided to it by the Borrower or any Subsidiary, except that such information
may be disclosed (i) to any Related Party of the Administrative Agent or any
such Lender, including without limitation accountants, legal counsel and other
advisors, (ii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iii) to the extent requested by any
regulatory agency or authority, (iv) to the extent that such information becomes
publicly available other than as a result of a breach of this Section, or which
becomes available to the Administrative Agent, any Lender or any Related Party
of any of the foregoing on a nonconfidential basis from a source other than the
Borrower, (v) in connection with the exercise of any remedy hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, and (ix) subject to provisions substantially similar to this
Section 10.10, to any actual or prospective assignee or Participant, or (vi)
with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
SECTION 10.11. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together
58
with interest thereon at the Federal Funds Rate to the date of repayment, shall
have been received by such Lender.
SECTION 10.12. WAIVER OF EFFECT OF CORPORATE SEAL. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, and waives any shortening of the
statute of limitations that may result from not affixing the corporate seal to
this Agreement or such other Loan Documents.
SECTION 10.13. WAIVER RIGHT OF SETOFF. The Administrative Agent and
each Lender hereby waives with respect to the Obligations, any contractual or
common law right of setoff against any deposits of any Loan Party now or
hereafter held by and other indebtedness or property then or thereafter owing by
such Lender or other holder to any Loan Party.
(remainder of page left intentionally blank)
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their respective authorized officers as of the day
and year first above written.
XXXXXXX FURNITURE COMPANIES, INC.
By
-------------------------------------
Name:
Title:
[SEAL]
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT AND AS A LENDER
By
-------------------------------------
Name:
Title:
Revolving Commitment: $10,800,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (364-DAY)]
FIRST UNION NATIONAL BANK
By
-------------------------------------
Name:
Title:
Revolving Commitment: $9,000,000
WACHOVIA SECURITIES, INC.,
AS SYNDICATION AGENT
By
-------------------------------------
Name:
Title:
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (364-DAY)]
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENT AND AS A LENDER
By
-------------------------------------
Name:
Title:
Revolving Commitment: $9,000,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (364-DAY)]
BRANCH BANKING & TRUST COMPANY
By
-------------------------------------
Name:
Title:
Revolving Commitment: $7,200,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (364-DAY)]
REGIONS BANK
By
-------------------------------------
Name:
Title:
Revolving Commitment: $5,400,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (364-DAY)]
US BANK NATIONAL ASSOCIATION
By
-------------------------------------
Name:
Title:
Revolving Commitment: $3,600,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (364-DAY)]
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
------------------------------------------------------------------------------------------------
Pricing Fixed Charge Applicable Applicable Applicable
Level Coverage Margin for Margin for Percentage for
Ratio Eurodollar Base Rate Commitment Fee
Loans Loans
------------------------------------------------------------------------------------------------
I Less than 1.75% per 0.75% per 0.325% per
1.75:1.00 annum annum annum
------------------------------------------------------------------------------------------------
II Less than 1.50% per 0.50% per 0.275% per
2.00:1.00 but annum annum annum
greater or
equal to
1.75:1.00
------------------------------------------------------------------------------------------------
III Less than 1.375% per 0.375% per 0.225% per
2.25:1.00 but annum annum annum
greater than or
equal to
2.00:1.00
------------------------------------------------------------------------------------------------
IV Greater than 1.25% per 0.25% per 0.175% per
or equal t annum annum annum
2.25:1.00
------------------------------------------------------------------------------------------------
Schedule 7.4
EXECUTION COUNTERPART
REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 27, 2002
AMONG
HAVERTYS CREDIT SERVICES, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
as Administrative Agent
================================================================================
SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger
TABLE OF CONTENTS
Page
----
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Existing Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.6 - Permitted Asset Sales
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Parent Guaranty Agreement
Exhibit D-2 - Form of Parent's Subsidiary Guaranty Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.5 - Form of Notice of Swingline Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
ii
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is made and entered
into as of March 27, 2002, by and among HAVERTYS CREDIT SERVICES, INC., a
Tennessee corporation (the "BORROWER"), the several banks and other financial
institutions from time to time party hereto (the "LENDERS"), SUNTRUST BANK, in
its capacity as Administrative Agent for the Lenders (the "ADMINISTRATIVE
AGENT"), WACHOVIA SECURITIES, INC., as Syndication Agent and BANK OF AMERICA,
N.A., as Documentation Agent.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders establish a
$40,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments as defined
herein, are willing to establish the requested revolving credit facility in
favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):
"ADJUSTED LIBO RATE" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the opening paragraph hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed
by such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For purposes of
this definition, "CONTROL" shall mean the power, directly or indirectly, either
to (i) vote 5% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "CONTROLLING", "CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have
meanings correlative thereto.
"AGGREGATE REVOLVING COMMITMENT AMOUNT" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount equals $40,000,000.
"AGGREGATE REVOLVING COMMITMENTS" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate
of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean, with respect to all Revolving Loans
outstanding on any date, a percentage per annum determined by reference to the
applicable Fixed Charge Coverage Ratio of the Parent (as such term is defined
in, or incorporated by reference into, the Parent Guaranty Agreement) in effect
on such date as set forth on Schedule I attached hereto; provided, that a
change in the Applicable Margin resulting from a change in such Fixed Charge
Coverage Ratio shall be effective on the second day after which the Borrower
delivers the financial statements required by Section 5.1(a) or (b) of the
3.5-Year Parent Credit Agreement and the compliance certificate required by
Section 5.1(c) of the 3.5-Year Parent Credit Agreement; provided further, that
if at any time the Borrower or the Parent shall have failed to deliver such
financial statements and such certificate, the Applicable Margin shall be at
Level I until such time as such financial statements and certificate are
delivered, at which time the Applicable Margin shall be determined as provided
above. Notwithstanding the foregoing, the Applicable Margin from the Closing
Date until the financial statements and compliance certificate for the
Borrower's Fiscal Quarter ending March 31, 2002 shall be at Level II.
"APPLICABLE PERCENTAGE" shall mean, with respect to the commitment fee
as of any date, the percentage per annum determined by reference to the
applicable Fixed Charge Coverage Ratio (as such term is defined in, or
incorporated by reference into, the Parent Guaranty Agreement) of the Parent in
effect on such date as set forth on Schedule I attached hereto; provided, that
a change in the Applicable Percentage resulting from a change in such Fixed
Charge Coverage Ratio shall be effective on the second Business Day after which
the Borrower delivers the financial statements required by Section 5.1(a) or
(b) of the 3.5-Year Parent Credit Agreement and the compliance certificate
required by Section 5.1(c) of the 3.5-Year Parent Credit Agreement; provided,
further, that if at any time the Borrower or the Parent shall have failed to
deliver such financial statements and such certificate, the Applicable
Percentage shall be at Level I until such time as such financial statements and
certificate are delivered, at which time the Applicable Percentage shall be
determined as provided above. Notwithstanding the foregoing, the Applicable
Percentage for the commitment fee from the Closing Date until the financial
statements and compliance certificate for the Borrower's Fiscal Quarter ending
March 31, 2002 shall be at Level II.
"APPROVED FUND" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and
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similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit C attached hereto or any other form approved by
the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of
the foregoing, any day on which dealings in Dollars are carried on in the
London interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the Parent shall cease
to own
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beneficially and of record 100% of the voting stock of the Borrower; or (c)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the
current board of directors or (ii) appointed by directors so nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
(or for purposes of Section 2.18(b), by such Lender's holding company, if
applicable) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of
this Agreement.
"CLASS" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"CONTRACTUAL OBLIGATION" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULT INTEREST" shall have the meaning set forth in Section
2.13(c).
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural Person)
approved by the Administrative Agent, and unless (x) such Person is taking
delivery of an assignment in connection with physical settlement of a credit
derivatives transaction or (y) an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed). If the consent of the Borrower to an assignment or to an Eligible
Assignment is required hereunder (including a consent to an assignment which
does not meet the minimum assignment thresholds specified in paragraph (b)(i)
of Section 10.4), the Borrower shall be deemed to have given its consent five
(5) Business Days after the date notice thereof has
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actually been delivered by the assigning Lender (through the Administrative
Agent) to the Borrower, unless such consent is expressly refused by the
Borrower prior to such fifth Business Day.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines,
natural resource damages, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) any actual
or alleged violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d)
the Release or threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
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"EURODOLLAR" when used in reference to any Loan or Borrowing refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D. The Eurodollar
Reserve Percentage shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, and by the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which any Lender is located and (c) in the case of a Foreign
Lender, any withholding tax that (i) is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any
time that such Foreign Lender designates a new lending office, other than taxes
that have accrued prior to the designation of such lending office that are
otherwise not Excluded Taxes, and (iii) is attributable to such Foreign
Lender's failure to comply with Section 2.20(e).
"EXISTING CREDIT AGREEMENTS" shall mean, collectively, (i) that
certain Credit Agreement, dated as of March 31, 1998, by and among the
Borrower, the lenders from time to time party thereto, SunTrust Bank, formerly
known as SunTrust Bank, Atlanta, as Administrative Agent, and First Union
National Bank and Bank of America, N.A., formerly known as Nationsbank, N.A, as
Co-Agents, and (ii) that certain Term Loan Agreement by and between the
Borrower and SunTrust Bank, dated as of January 22, 2001.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th
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of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"FISCAL QUARTER" shall mean a fiscal quarter of the Borrower.
"FISCAL YEAR" shall mean a fiscal year of the Borrower.
"FOREIGN LENDER" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"GUARANTY AGREEMENTS" shall mean, collectively, the Parent Guaranty
Agreement and the Parent's Subsidiary Guaranty Agreement.
"GUARANTORS" shall mean the Parent and each of the Subsidiaries of the
Parent now existing or hereafter acquired.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon
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gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"HEDGING OBLIGATIONS" of any Person shall mean any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all
renewals, extensions and modifications of any Hedging Transactions and any and
all substitutions for any Hedging Transactions.
"HEDGING TRANSACTION" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between such Person and any Lender or Affiliate of any Lender that is a
rate swap, basis swap, forward rate transaction, commodity swap, interest rate
option, foreign exchange transaction, cap transaction, floor transaction,
collateral transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
"INDEBTEDNESS" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business on terms customary in the trade; provided, that for purposes
of Section 8.1(f), trade payables overdue by more than 120 days shall be
included in this definition except to the extent that any of such trade
payables are being disputed in good faith and by appropriate measures), (iv)
all obligations of such Person under any conditional sale or other title
retention agreement(s) relating to property acquired by such Person, (v) all
Capital Lease Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person in respect of letters of credit, acceptances or
similar extensions of credit, (vii) all Guarantees of such Person of the type
of Indebtedness described in clauses (i) through (v) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all Hedging Obligations. The
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a joint venturer,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the Indemnity,
Subrogation and Contribution Agreement, substantially in the form of Exhibit E,
among the Borrower, the Guarantors and the Administrative Agent as amended,
restated, supplemented or otherwise amended from time to time.
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"INFORMATION MEMORANDUM" shall mean the Confidential Information
Memorandum dated February, 2002 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"INTEREST PERIOD" shall mean with respect to any Eurodollar Borrowing,
a period of one, two, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence
on the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such Business Day falls in another calendar
month, in which case such Interest Period would end on the next preceding
Business Day;
(iii) any Interest Period which begins on the last Business Day of
a calendar month or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period
shall end on the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Telerate Screen (or
such other page on that service or such other service designated by the British
Banker's Association for the display of such Association's Interest Settlement
Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on the day
that is two Business Days prior to the first day of the Interest Period or if
such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time;
provided, that if the Administrative Agent determines that the relevant
foregoing sources are unavailable for the relevant Interest Period, LIBOR shall
mean the rate of interest determined by the Administrative Agent to be the
average (rounded upward, if necessary, to the nearest 1/100th of 1%) of the
rates per annum at which deposits in Dollars are offered to the Administrative
Agent two (2) Business Days preceding the first day of such Interest Period by
leading banks in the London interbank market as of 10:00 a.m. for delivery on
the first day of such Interest Period, for the number of days comprised therein
and in an amount comparable to the amount of the Eurodollar Loan of the
Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other
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security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Notes
(if any), the Guaranty Agreements, the Indemnity and Contribution Agreement,
all Notices of Borrowing, all Notices of Conversion/Continuation and any and
all other instruments, agreements, documents and writings executed in
connection with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Guarantors.
"LOANS" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets, liabilities or
prospects of the Borrower or of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent, Swingline Lender, and the Lenders under any of the Loan
Documents or (iv) the legality, validity or enforceability of any of the Loan
Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than the Loans)
or Hedging Obligations, of any one or more of the Borrower and the Subsidiaries
in an aggregate principal amount exceeding $7,500,000. For purposes of
determining Material Indebtedness, the "principal amount" of any Hedging
Obligations at any time shall be the Net Xxxx-to-Market Exposure of such
Hedging Obligations at such time.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NET XXXX-TO-MARKET EXPOSURE" of any Person shall mean, as of any
date, with respect to any Hedging Obligation, the excess (if any) of all
unrealized losses over all unrealized profits of such Person arising from such
Hedging Obligation. "Unrealized losses" shall mean the fair market value of the
cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of such date (assuming the Hedging Transaction was to be
terminated as of that date), and "unrealized profits" means the fair market
value of the gain to such Person of replacing such Hedging Transaction as of
such date (assuming such Hedging Transaction were to be terminated as of that
date).
"NOTES" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
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"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.7(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth in
Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth in
Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to the
Administrative Agent or any Lender (including the Swingline Lender) pursuant to
or in connection with this Agreement or any other Loan Document, including
without limitation, all principal, interest (including any interest accruing
after the filing of any petition in bankruptcy or the commencement of any
insolvency, reorganization or like proceeding relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), all reimbursement obligations, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all fees and expenses of
counsel to the Administrative Agent and any Lender (including the Swingline
Lender) incurred pursuant to this Agreement or any other Loan Document),
whether direct or indirect, absolute or contingent, liquidated or unliquidated,
now existing or hereafter arising hereunder or thereunder, and all Hedging
Obligations owing to the Administrative Agent, any Lender or any of their
Affiliates incurred in order to limit interest rate or fee fluctuation with
respect to the Loans, and all obligations and liabilities incurred in
connection with collecting and enforcing the foregoing, together with all
renewals, extensions, modifications or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, including, without limitation, any
Receivables Financings, (ii) any liability of such Person under any sale and
leaseback transactions which do not create a liability on the balance sheet of
such Person, (iii) any Synthetic Lease Obligation or (iv) any obligation
arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document other than Excluded Taxes.
"PARENT" shall mean Xxxxxxx Furniture Companies, Inc., a Maryland
corporation.
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"PARENT CREDIT AGREEMENTS" shall mean, collectively, the 364-Day
Parent Credit Agreement and the 3.5-Year Credit Agreement.
"PARENT GUARANTY AGREEMENT" shall mean that certain Guaranty Agreement
dated as of the date hereof executed by the Parent in favor of the
Administrative Agent for the benefit of the Lenders, substantially in the form
of Exhibit D-1, as amended, restated, supplemented or otherwise modified from
time to time.
"PARENT'S SUBSIDIARY GUARANTY AGREEMENT" shall mean that certain
Guaranty Agreement dated as of the date hereof executed by Havertys Capital,
Inc. and Havertys Enterprises, Inc. in favor of the Administrative Agent for
the benefit of the Lenders, substantially in the form of Exhibit D-2, as
amended, restated, supplemented or otherwise modified from time to time.
"PARTICIPANT" shall have the meaning set forth Section 10.4(d).
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, or such other
location as to which the Administrative Agent shall have given written notice
to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes or special assessments not yet
due or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained in
accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law created
in the ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings and with respect
to which adequate reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP; and
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(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity,
or any Governmental Authority.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"PRO RATA SHARE" shall mean, with respect to any Commitment of any
Lender at any time, a percentage, the numerator of which shall be such Lender's
Commitment (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Revolving Credit
Exposure), and the denominator of which shall be the sum of such Commitments of
all Lenders (or if such Commitments have been terminated or expired or the
Loans have been declared to be due and payable, all Revolving Credit Exposure
of all Lenders under such Commitments).
"PRUDENTIAL AGREEMENT" shall mean that certain Note Agreement dated
December 29, 1993 by and between the Parent and The Prudential Insurance
Company of America relating to the Parent's $92,500,000 in aggregate principal
amount 10.10% notes due April 15, 2000, 7.16% notes due April 15, 2007, 7.44%
notes due October 13, 2008 and 7.95% notes due August 15, 2008, either as
originally executed or as thereafter amended, modified or supplemented.
"RECEIVABLES FINANCING" shall mean a transaction pursuant to which
funds are advanced to the Borrower or any of its Subsidiaries in exchange for
which the Borrower or such Subsidiaries shall sell, pledge, contribute or place
a Lien on any or all of its accounts or notes receivables to repay, in whole or
in part, such funds. However, this definition shall not include any debit card,
credit card or revolving charge sales where the obligor is a financial
institution.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
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"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding 51% or
more of the aggregate outstanding Revolving Commitments at such time or if the
Lenders have no Commitments outstanding, then Lenders holding 51% or more of
the Revolving Credit Exposure.
"REQUIREMENT OF LAW" for any Person shall mean the articles or
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulations, or
determination of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"RESPONSIBLE OFFICER" shall mean any of the chairman, president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of
the foregoing with the consent of the Administrative Agent; and, with respect
to the financial covenants only, the chief financial officer or the treasurer
of the Borrower.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Swingline Loans in an aggregate principal amount not exceeding
the amount set forth with respect to such Lender on the signature pages to this
Agreement, or in the case of a Person becoming a Lender after the Closing Date,
the amount of the assigned "Revolving Commitment" as provided in the Assignment
and Acceptance executed by such Person as an assignee, as the same may be
increased or deceased pursuant to terms hereof.
"REVOLVING COMMITMENT TERMINATION DATE" shall mean the earliest of (i)
September 30, 2005, (ii) the date on which the Revolving Commitments are
terminated pursuant to Section 2.8 and (iii) the date on which all amounts
outstanding under this Agreement have been declared or have automatically
become due and payable (whether by acceleration or otherwise).
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and such Lender's Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"REVOLVING LOAN" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
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"S&P" shall mean Standard & Poor's.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership, joint venture, limited liability company, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, partnership, joint venture, limited liability company, association
or other entity (i) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power, or in the case of a partnership, more than 50% of the general
partnership interests are, as of such date, owned, controlled or held, or (ii)
that is, as of such date, otherwise controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent. Unless otherwise indicated, all references to "Subsidiary" hereunder
shall mean a Subsidiary of the Borrower.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $7,500,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank, or any other Lender that
may agree to make Swingline Loans hereunder.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit B.
"SWINGLINE TERMINATION DATE" shall mean the date that is two (2)
Business Days prior to the Revolving Commitment Termination Date.
"SWINGLINE RATE" shall mean, for any Interest Period, the rate as
offered by the Swingline Lender and accepted by the Borrower. Borrower shall
have no obligation to accept this rate and Swingline Lender shall have no
obligation to provide it.
"SYNTHETIC LEASE" means a lease transaction under which the parties
intend that (i) the lease will be treated as an "operating lease" by the lessee
pursuant to Statement of Financial Accounting Standards No. 13, as amended and
(ii) the lessee will be entitled to various tax and other benefits ordinarily
available to owners (as opposed to lessees) of like property.
"SYNTHETIC LEASE OBLIGATIONS" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases that are attributable to principal and, without duplication,
(ii) all rental and purchase price payment
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obligations of such Person under such Synthetic Leases assuming such Person
exercises the option to purchase the lease property at the end of the lease
term.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"364-DAY PARENT CREDIT AGREEMENT" shall mean that certain Revolving
Credit Agreement dated as of the date hereof, by and among the Borrower, the
lenders from time to time party thereto and SunTrust Bank, as administrative
agent.
"3.5-YEAR PARENT CREDIT AGREEMENT" shall mean that certain Revolving
Credit Agreement dated as of the date hereof, by and among the Borrower, the
lenders from time to time party thereto and SunTrust Bank, as administrative
agent.
"TYPE", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving Eurodollar
Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Parent delivered pursuant to Section 5.1(a) of the 3.5-Year Parent Credit
Agreement; provided, that if the Borrower notifies the Administrative Agent
that the Parent wishes to amend any covenant in Article VI of the 3.5-Year
Parent Credit Agreement to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders (as such term is defined in the 3.5-Year
Parent Credit Agreement) wish to amend Article VI of the 3.5-Year Parent Credit
Agreement for such purpose), then the Borrower's and the Parent's compliance
with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory
to the Borrower, the Parent and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words
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"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the
same meaning and effect as the word "shall". In the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the word "to" means "to but excluding". Unless the
context requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, supplemented or otherwise modified (subject
to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include
such Person's successors and permitted assigns, (iii) the words "hereof",
"herein" and "hereunder" and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular provision hereof,
(iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this
Agreement and (v) all references to a specific time shall be construed to refer
to the time in the city and state of the Administrative Agent's principal
office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon
the terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the
Swingline Lender agrees to make Swingline Loans in accordance with Section 2.4,
and (iii) each Lender agrees to purchase a participation interest in the
Swingline Loans pursuant to the terms and conditions hereof; provided, that in
no event shall the aggregate principal amount of all outstanding Revolving
Loans and Swingline Loans exceed at any time the Aggregate Revolving
Commitments from time to time in effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and conditions
set forth herein, each Lender severally agrees to make Revolving Loans to the
Borrower, from time to time during the Availability Period, in an aggregate
principal amount outstanding at any time that will not result in (a) such
Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment
or (b) the sum of the aggregate Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving Commitment Amount. During the Availability
Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans in accordance with the terms and conditions of this Agreement; provided,
that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 attached hereto (a "NOTICE OF
REVOLVING BORROWING") (x) prior to 1:00 p.m. (Atlanta,
17
Georgia time) on the requested date of each Base Rate Borrowing and (y) prior
to 1:00 p.m. (Atlanta, Georgia time) at least three (3) Business Days prior to
the requested date of each Eurodollar Borrowing. Each Notice of Revolving
Borrowing shall be irrevocable and shall specify: (i) the aggregate principal
amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing
and (iv) in the case of a Eurodollar Borrowing, the duration of the initial
Interest Period applicable thereto (subject to the provisions of the definition
of Interest Period). Each Revolving Borrowing shall consist entirely of Base
Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing shall be not less than $2,500,000
or a larger multiple of $500,000, and the aggregate principal amount of each
Base Rate Borrowing shall not be less than $1,000,000 or a larger multiple of
$100,000; provided, that Base Rate Loans made pursuant to Section 2.5 may be
made in lesser amounts as provided therein. At no time shall the total number
of Eurodollar Borrowings outstanding at any time exceed six. Promptly following
the receipt of a Notice of Revolving Borrowing in accordance herewith, the
Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower, from time to time from the Closing Date to the Swingline
Termination Date, in an aggregate principal amount outstanding at any time not
to exceed the lesser of (i) the Swingline Commitment then in effect and (ii)
the difference between the Aggregate Revolving Commitment Amount and the
aggregate Revolving Credit Exposures of all Lenders. The Borrower shall be
entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC. (a) The
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing ("NOTICE OF
SWINGLINE BORROWING") prior to 2:00 p.m. (Atlanta, Georgia time) on the
requested date of each Swingline Borrowing. Each Notice of Swingline Borrowing
shall be irrevocable and shall specify: (i) the principal amount of such
Swingline Loan, (ii) the date of such Swingline Loan (which shall be a Business
Day) and (iii) the account of the Borrower to which the proceeds of such
Swingline Loan should be credited. The Administrative Agent will promptly
advise the Swingline Lender of each Notice of Swingline Borrowing. Each
Swingline Loan shall accrue interest at the Swingline Rate and shall have an
Interest Period (subject to the definition thereof) as agreed between the
Borrower and the Swingline Lender. The aggregate principal amount of each
Swingline Loan shall be not less than $250,000 or a larger multiple of $1,000,
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. The Swingline Lender will make the proceeds of each Swingline Loan
available to the Borrower in Dollars in immediately available funds at the
account specified by the Borrower in the applicable Notice of Swingline
Borrowing not later than 4:00 p.m. on the requested date of such Swingline
Loan.
(b) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a
Notice of Revolving Borrowing to the Administrative Agent
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requesting the Lenders (including the Swingline Lender) to make Base Rate Loans
in an amount equal to the unpaid principal amount of any Swingline Loan. Each
Lender will make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Swingline Lender
in accordance with Section 2.6, which will be used solely for the repayment of
such Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date
that such Base Rate Borrowing should have occurred. On the date of such
required purchase, each Lender shall promptly transfer, in immediately
available funds, the amount of its participating interest to the Administrative
Agent for the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall
automatically become a Base Rate Loan on the effective date of any such
participation and interest shall become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.5(b) or to purchase the participating interests pursuant to Section
2.5(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may
have or claim against the Swingline Lender, the Borrower or any other Person
for any reason whatsoever, (ii) the existence of a Default or an Event of
Default or the termination of any Lender's Revolving Commitment, (iii) the
existence (or alleged existence) of any event or condition which has had or
could reasonably be expected to have a Material Adverse Effect, (iv) any breach
of this Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. If such
amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the date of
demand thereof at the Federal Funds Rate. Until such time as such Lender makes
its required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to
have assigned any and all payments made of principal and interest on its Loans
and any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender's participation interest in such Swingline Loans that
such Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
SECTION 2.6. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately
available funds by 3:30 p.m. (Atlanta, Georgia time) to the Administrative
Agent at the Payment Office; provided, that the Swingline Loans will be made as
set forth in Section 2.5. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts that it receives,
in like funds by the close of business on such proposed date, to an account
maintained by the Borrower with the
19
Administrative Agent or at the Borrower's option, by effecting a wire transfer
of such amounts to an account designated by the Borrower to the Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing
in which such Lender is participating that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall immediately
pay such corresponding amount to the Administrative Agent together with
interest at the rate specified for such Borrowing. Nothing in this subsection
shall be deemed to relieve any Lender from its obligation to fund its Pro Rata
Share of any Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis
of their respective Pro Rata Shares. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender shall
be obligated to make its Loans provided to be made by it hereunder, regardless
of the failure of any other Lender to make its Loans hereunder.
SECTION 2.7. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing (a "NOTICE OF
CONVERSION/CONTINUATION") that is to be converted or continued, as the case may
be, (x) prior to 1:00 p.m.(Atlanta, Georgia time) on the requested date of a
conversion into a Base Rate Borrowing and (y) prior to 1:00 p.m. (Atlanta,
Georgia time) three (3) Business Days prior to a continuation of or conversion
into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall
be irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being elected with
respect to different portions thereof, the portions thereof that are to be
20
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to
such Notice of Continuation/Conversion, which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing,
the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of "Interest Period". If
any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings
and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as,
a Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS.
(a) Unless previously terminated, all Revolving Commitments shall
terminate on the Revolving Commitment Termination Date, except that the
Swingline Commitment shall terminate on the Swingline Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.8 shall be in an amount of at
least $2,500,000 and any larger multiple of $500,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures
of all Lenders. Any such reduction in the Aggregate Revolving Commitments shall
result in a proportionate reduction (rounded to the next lowest integral
multiple of $100,000) in the Swingline Commitment.
SECTION 2.9. REPAYMENT OF LOANS.
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(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued interest thereon) on the earlier of (i) the last
day of the Interest Period applicable to such Borrowing and (ii) the Swingline
Termination Date.
SECTION 2.10. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made
by such Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate RECORDS in which
shall be recorded (i) the Revolving Commitment of each Lender, (ii) the amount
of each Loan made hereunder by each Lender, the Class and Type thereof and the
Interest Period applicable thereto, (iii) the date of each continuation thereof
pursuant to Section 2.7, (iv) the date of each conversion of all or a portion
thereof to another Type pursuant to Section 2.7, (v) the date and amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of such Loans and (vi) both the
date and amount of any sum received by the Administrative Agent hereunder from
the Borrower in respect of the Loans and each Lender's Pro Rata Share thereof.
The entries made in such records shall be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided, that
the failure or delay of any Lender or the Administrative Agent in maintaining
or making entries into any such record or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Loans (both principal
and unpaid accrued interest) of such Lender in accordance with the terms of
this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note and, in the case of the Swingline Lender only, a
Swingline Note, payable to the order of such Lender.
SECTION 2.11. OPTIONAL PREPAYMENTS.
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, without premium or penalty,
by giving irrevocable written notice (or telephonic notice promptly confirmed
in writing) to the Administrative Agent no later than (i) in the case of
prepayment of any Eurodollar Borrowing, 1:00 p.m. not less than three (3)
Business Days prior to any such prepayment, (ii) in the case of any prepayment
of any Base Rate Borrowing, 1:00 p.m. on the date of such prepayment, and (iii)
in the case of Swingline Borrowings, prior to 11:00 a. m. on the date of such
prepayment. Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each Borrowing or
portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender's Pro Rata Share of any such prepayment. If such
notice is given, the aggregate amount specified in such notice shall be due and
payable on the date designated in such notice, together with accrued interest
to such date on the amount so prepaid in accordance with Section 2.13(e);
provided, that if a Eurodollar Borrowing is prepaid on a date other than the
last day of an
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Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.19. Each partial prepayment of any Loan (other
than a Swingline Loan) shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type pursuant to
Section 2.3 or in the case of a Swingline Loan pursuant to Section 2.5. Each
prepayment of a Borrowing shall be applied ratably to the Loans comprising such
Borrowing.
SECTION 2.12. MANDATORY PREPAYMENTS. If at any time the Revolving
Credit Exposure of all Lenders exceeds the aggregate principal amount of the
Revolving Credit Commitments at such time, the Borrower shall immediately repay
Swingline Loans and Revolving Loans in an amount equal to such excess, together
with all accrued and unpaid interest on such excess amount and any amounts due
under Section 2.19. Each prepayment of a Borrowing shall be applied ratably
first to the Swingline Loans to the full extent thereof, then to the Revolving
Base Rate Loans to the full extent thereof, and finally to Revolving Eurodollar
Loans to the full extent thereof.
SECTION 2.13. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base
Rate in effect from time to time and on each Eurodollar Loan at the Adjusted
LIBO Rate for the applicable Interest Period in effect for such Loan, plus, in
each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at the
Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrower shall pay interest ("DEFAULT
INTEREST") with respect to all Eurodollar Loans at the rate otherwise
applicable for the then-current Interest Period plus an additional 2% per annum
until the last day of such Interest Period, and thereafter, and with respect to
all Base Rate Loans (including all Swingline Loans) and all other Obligations
hereunder (other than Loans and Hedging Obligations), at the Base Rate plus the
Applicable Margin plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and
December and on the Revolving Commitment Termination Date. Interest on all
outstanding Eurodollar Loans shall be payable on the last day of each Interest
Period applicable thereto, and, in the case of any Eurodollar Loans having an
Interest Period in excess of three months, on each day which occurs every three
months, after the initial date of such Interest Period, and on the Revolving
Commitment Termination Date. Interest on each Swingline Loan shall be payable
on the maturity date of such Loan, which shall be the last day of the Interest
Period applicable thereto, and on the Swingline Termination Date. Interest on
any Loan which is converted into a Loan of another Type or which is repaid or
prepaid shall be payable on the date of such conversion or on the date of any
such repayment or prepayment (on the amount repaid or prepaid) thereof. All
Default Interest shall be payable on demand.
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(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and
the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.14. FEES.
(a) The Borrower shall pay to the Administrative Agent for its own
account fees in the amounts and at the times previously agreed upon by the
Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee, which shall accrue at
the Applicable Percentage (determined daily in accordance with Schedule I) on
the daily amount of the unused Revolving Commitment of such Lender during the
Availability Period. For purposes of computing commitment fees with respect to
the Revolving Commitments, the Revolving Commitment of each Lender shall be
deemed used to the extent of the outstanding Revolving Loans, but not Swingline
Exposure, of such Lender.
(c) Reserved.
(d) Payments. Accrued fees shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on June
30, 2002 and on the Revolving Commitment Termination Date (and if later, the
date the Loans shall be repaid in their entirety).
SECTION 2.15. COMPUTATION OF INTEREST AND FEES. All computations of
interest and fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable (to
the extent computed on the basis of days elapsed). Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
SECTION 2.16. INABILITY TO DETERMINE INTEREST RATES. If prior to
the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans
for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of
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Eurodollar Loans, until the Administrative Agent shall notify the Borrower and
the Lenders that the circumstances giving rise to such notice no longer exist,
(i) the obligations of the Lenders to make Eurodollar Revolving Loans or to
continue or convert outstanding Loans as or into Eurodollar Loans shall be
suspended and (ii) all such affected Loans shall be converted into Base Rate
Loans on the last day of the then current Interest Period applicable thereto
unless the Borrower prepays such Loans in accordance with this Agreement.
Unless the Borrower notifies the Administrative Agent at least one Business Day
before the date of any Eurodollar Revolving Borrowing for which a Notice of
Revolving Borrowing has previously been given that it elects not to borrow on
such date, then such Revolving Borrowing shall be made as a Base Rate
Borrowing.
SECTION 2.17. ILLEGALITY. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Eurodollar Revolving Loans,
or to continue or convert outstanding Loans as or into Eurodollar Loans, shall
be suspended. In the case of the making of a Eurodollar Revolving Borrowing,
such Lender's Revolving Loan shall be made as a Base Rate Loan as part of the
same Revolving Borrowing for the same Interest Period and if the affected
Eurodollar Loan is then outstanding, such Loan shall be converted to a Base
Rate Loan either (i) on the last day of the then current Interest Period
applicable to such Eurodollar Loan if such Lender may lawfully continue to
maintain such Loan to such date or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain such Eurodollar Loan to
such date. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, designate a different
Applicable Lending Office if such designation would avoid the need for giving
such notice and if such designation would not otherwise be disadvantageous to
such Lender in the good faith exercise of its discretion.
SECTION 2.18. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO Rate);
or
(ii) impose on any Lender or the eurodollar interbank market any
other condition affecting this Agreement or any Eurodollar Loans made by
such Lender;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
reduce the amount received or receivable by such Lender hereunder (whether of
principal, interest or any other amount), then the Borrower shall promptly pay,
upon written notice from and demand by such Lender on the Borrower (with a copy
of such notice and demand to the Administrative Agent), to the Administrative
Agent for
25
the account of such Lender, within five Business Days after the date of such
notice and demand, additional amount or amounts sufficient to compensate such
Lender for such additional costs incurred or reduction suffered.
(b) If any Lender shall have determined that on or after the date of
this Agreement any Change in Law regarding capital requirements has or would
have the effect of reducing the rate of return on such Lender's capital (or on
the capital of such Lender's parent corporation) as a consequence of its
obligations hereunder to a level below that which such Lender or such Lender's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's policies or the policies of such Lender's parent
corporation with respect to capital adequacy) then, from time to time, within
five (5) Business Days after receipt by the Borrower of written demand by such
Lender (with a copy thereof to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such Lender or
such Lender's parent corporation for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or such Lender's parent corporation, as the
case may be, specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower (with a copy to the Administrative Agent) and shall
be conclusive, absent manifest error. The Borrower shall pay any such Lender
such amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right
to demand such compensation.
SECTION 2.19. FUNDING INDEMNITY. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrower
to borrow, prepay, convert or continue any Eurodollar Loan on the date
specified in any applicable notice (regardless of whether such notice is
withdrawn or revoked) then, in any such event, the Borrower shall compensate
each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case
of a Eurodollar Loan, such loss, cost or expense shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (A) the amount of
interest that would have accrued on the principal amount of such Eurodollar
Loan if such event had not occurred at the Adjusted LIBO Rate applicable to
such Eurodollar Loan for the period from the date of such event to the last day
of the then current Interest Period therefor (or in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest that would
accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount
payable under this Section 2.19 submitted to the Borrower by any Lender (with a
copy to the Administrative Agent) shall be conclusive, absent manifest error.
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SECTION 2.20. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent or any Lender (as the case
may be) shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within five (5) Business Days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent or such Lender, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate. Without limiting the generality of the foregoing, each Foreign
Lender agrees that it will deliver to the Administrative Agent and the Borrower
(or in the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2) duly
completed copies of (i) Internal Revenue Service Form W-8 ECI, or any successor
form thereto, certifying that the payments received from the Borrower hereunder
are effectively connected with such Foreign Lender's conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN,
or any successor form thereto, certifying that such Foreign Lender is entitled
to benefits under an income tax treaty to which the United States is a party
27
which reduces the rate of withholding tax on payments of interest; or (iii)
Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the
payment to the Foreign Lender qualifies as "portfolio interest" exempt from
U.S. withholding tax under Code section 871(h) or 881(c), and (B) stating that
(1) the Foreign Lender is not a bank for purposes of Code section 881(c)(3)(A),
or the obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary course of its
trade or business, within the meaning of that section; (2) the Foreign Lender
is not a 10% shareholder of the Borrower within the meaning of Code section
871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a controlled
foreign corporation that is related to the Borrower within the meaning of Code
section 881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may
be applicable to the Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each
such Foreign Lender shall deliver to the Borrower and the Administrative Agent
such forms on or before the date that it becomes a party to this Agreement (or
in the case of a Participant, on or before the date such Participant purchases
the related participation). In addition, each such Foreign Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Foreign Lender. Each such Foreign Lender shall promptly
notify the Borrower and the Administrative Agent at any time that it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the
Internal Revenue Service for such purpose).
SECTION 2.21. PAYMENTS GENERALLY; PRO RATA TREATMENT.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement, or of amounts
payable under Section 2.18, 2.19 or 2.20, or otherwise) prior to 1:00 p.m.
(Atlanta, Georgia time), on the date when due, in immediately available funds,
free and clear of any defenses, rights of set-off, counterclaim, or withholding
or deduction of taxes. Any amounts received after such time on any date may, in
the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at the Payment
Office, except payments to be made directly to the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.18,
2.19 and 2.20 and 10.3 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
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(c) If any Lender shall obtain payment in respect of any principal of
or interest on any of its Revolving Loans or participations in Swingline Loans
that would result in such Lender receiving payment of a greater proportion of
the aggregate amount of its Revolving Loans and participations in Swingline
Loans and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Revolving Loans and participations in
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations Swingline Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply).
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount or amounts
due. In such event, if the Borrower has not in fact made such payment, then
each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.5(b) or (e), 2.6(b), 2.21(d) or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.22. MITIGATION OF OBLIGATIONS. If any Lender requests
compensation under Section 2.18, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.20, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the sole judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable
under Section 2.18 or Section 2.20, as the case may be, in the future and (ii)
would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
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SECTION 2.23. RESERVED.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders (including the Swingline Lender) to make Loans hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent)
required to be reimbursed or paid by the Borrower hereunder, under any other
Loan Document and under any agreement with the Administrative Agent or SunTrust
Capital Markets, Inc., as Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of
each party hereto or written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page
of this Agreement) that such party has signed a counterpart of this
Agreement;
(ii) duly executed Notes payable to such Lender;
(iii) the duly executed Guaranty Agreements and Indemnity and
Contribution Agreement;
(iv) evidence that the Existing Credit Agreements have been
terminated, all interest, fees and principal accrued thereunder through the
Closing Date will be paid in full from the initial Revolving Loan under
this Agreement and the initial revolving loan under the 364-Day Credit
Agreement and all Liens granted pursuant thereto shall have been released;
(v) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of its bylaws and of the
resolutions of its boards of directors, authorizing the execution, delivery
and performance of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such Loan Party
executing the Loan Documents to which it is a party;
(vi) certified copies of the articles of incorporation or other
charter documents of each Loan Party, together with certificates of good
standing or existence, as may be available from the Secretary of State of
the jurisdiction of incorporation or formation of such Loan Party and each
other jurisdiction where such Loan Party is required to be qualified to do
business as a foreign corporation;
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(vii) a favorable written opinion of Xxxxx, Xxxxxxxx & Xxxxxxx,
counsel to the Loan Parties, addressed to the Administrative Agent and each
of the Lenders, and covering such matters relating to the Loan Parties, the
Loan Documents and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and signed by a
Responsible Officer, confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of Section 3.2;
(ix) a duly executed Notice of Borrowing;
(x) a duly executed funds disbursement agreement for the initial
Borrowing;
(xi) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired; and
(xii) copies of the consolidated financial statements of Guarantor
and its Subsidiaries for the Fiscal Years ended 1999, 2000, and 2001,
including balance sheets, income and cash flow statements audited by
independent public accountants of recognized national standing and prepared
in conformity with GAAP and such other financial information as the
Administrative Agent may reasonably request; and
(xiii) certificates of insurance issued on behalf of insurers of the
Borrower and all guarantors, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the Borrower
and all guarantors, naming the Administrative Agent as additional insured.
(c) The Parent and all other parties thereto shall have executed and
delivered the Parent Credit Agreements, which shall be in form and substance
satisfactory to the Administrative Agent and the Required Lenders, and the
Administrative Agent and the Required Lenders shall have received certified
copies thereof, together with evidence that all conditions precedent to the
effectiveness thereof have been satisfied and all transactions contemplated by
the Parent Credit Agreements have been consummated.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing is subject to the
satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct in all material respects on and as
of the date of such
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Borrowing before and after giving effect thereto, except for those
representations and warranties made as of a specific date;
(c) since the date of the audited financial statements of the Borrower
described in Section 4.4, there shall have been no change which has had or
could reasonably be expected to have a Material Adverse Effect; and
(d) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall
be in form and substance satisfactory in all respects to the Administrative
Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has
all requisite power and authority to carry on its business as now conducted,
and (iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it
is a party are within such Loan Party's organizational powers and have been
duly authorized by all necessary organizational, and if required, stockholder,
action. This Agreement has been duly executed and delivered by the Borrower,
and constitutes, and each other Loan Document to which any Loan Party is a
party, when executed and delivered by such Loan Party, will constitute, valid
and binding obligations of the Borrower or such Loan Party (as the case may
be), enforceable against it in accordance with their respective terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
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SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect (b) will not violate any applicable law, rule or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any judgment, order or ruling of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a
right thereunder to require any payment to be made by the Borrower or any of
its Subsidiaries including, without limitation, the Prudential Agreement and
any Receivables Financing and (d) will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.4. RESERVED.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) that in any manner draws
into question the validity or enforceability of this Agreement or any other
Loan Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability, (iii) has received notice of
any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and
each Subsidiary is in compliance with (a) all applicable laws, rules,
regulations, judgments and orders of any Governmental Authority, and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and each
other Person for whose taxes the Borrower or any Subsidiary could become liable
have timely filed or caused to be filed all Federal income tax returns and all
other material tax returns that are required to be filed by them, and have paid
all taxes shown to be due and payable on such returns or on any
33
assessments made against it or its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority,
except (i) to the extent the failure to do so would not have a Material Adverse
Effect or (ii) where the same are currently being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as the
case may be, has set aside on its books adequate reserves in accordance with
GAAP. As of the Closing Date, the charges, accruals and reserves on the books
of the Borrower and its Subsidiaries in respect of such taxes are adequate, and
no tax liabilities that could be materially in excess of the amount so provided
are anticipated.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the
Loans will be used for "purchasing" or "carrying" any "margin stock" with the
respective meanings of each of such terms under Regulation U as now and from
time to time hereafter in effect or for any purpose that violates the
provisions of the applicable Margin Regulations.
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No. 87) did not, as of the
date of the most recent financial statements reflecting such amounts, exceed by
more than $7,500,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $7,500,000 the fair market value
of the assets of all such underfunded Plans.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good title to, or
valid leasehold interests in, all of its real and personal property material to
the operation of its business, free and clear of any Liens except Permitted
Encumbrances.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks,
tradenames, copyrights, franchises, licenses, and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person, except for
any such infringements that, individually or in the aggregate, would not have a
Material Adverse Effect.
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports
that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any
34
other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, taken as a whole, in light of the circumstances under which
they were made, not misleading;
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of organization of,
and the type of, each Subsidiary, as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee
remains unpaid:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will deliver to the Administrative Agent and each Lender:
(a) promptly upon request therefor, a copy of each other report
(including without limitation management letters) submitted to any Loan Party
or its Subsidiaries by independent accountants in connection with any annual,
interim or special audit made by them of the books of any Loan Party or its
Subsidiaries;
(b) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
(c) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition
of the Parent, the Borrower or any of their Subsidiaries as the Administrative
Agent or any Lender may reasonably request.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
35
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any event or any other development by which the
Borrower or any of its Subsidiaries (i) fails to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability
and in each of the preceding clauses, which individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any
other ERISA Events that have occurred, could reasonably be expected to result
in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $7,500,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective material rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.2.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its business and
properties, including without limitation, all Environmental Laws, ERISA and
OSHA, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge at or before maturity, all
of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
36
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions
in relation to its business and activities to the extent necessary to prepare
the consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will, and
will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, at the Administrative
Agent's or Lenders' expense if no Event of Default has occurred and is
continuing and otherwise at the expense of the Borrower, all at such reasonable
times and as often as the Administrative Agent or any Lender may reasonably
request after reasonable prior notice to the Borrower; provided, however, if an
Event of Default has occurred and is continuing, no prior notice shall be
required.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except where the failure to do so,
either individually or it the aggregate, could not reasonably be expected to
result in a Material Adverse Effect and (b) maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or
similar businesses operating in the same or similar locations.
SECTION 5.9. USE OF PROCEEDS. The Borrower will use the proceeds of
all Loans to refinance Indebtedness under the Existing Credit Agreements on the
Closing Date and thereafter to finance working capital needs, capital
expenditures and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System, including
Regulations T, U or X.
SECTION 5.10. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary
is acquired or formed after the Closing Date, the Borrower will, within ten
(10) business days after such Subsidiary is acquired or formed, notify the
Administrative Agent and the Lenders thereof and will cause such Subsidiary to
become a Guarantor by executing a guaranty agreement in form and substance
satisfactory to the Administrative Agent and the Required Lenders and will
cause such Subsidiary to deliver simultaneously therewith similar documents
applicable to such Subsidiary required under Section 3.1 as reasonably
requested by the Administrative Agent.
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ARTICLE VI
RESERVED
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee remains unpaid:
SECTION 7.1. COVENANTS OF GUARANTY AGREEMENT. The Borrower will
not, and will not permit any Subsidiary to, breach any of the covenants
incorporated by reference from the Parent 3.5-Year Credit Agreement into the
Parent Guaranty Agreement.
SECTION 7.2. MERGER OR CONSOLIDATION. The Borrower will not, and
will not permit any Subsidiary to, merge, consolidate or exchange shares with
any other Person, except that:
(a) any Subsidiary may merge or consolidate with the Borrower or
another Subsidiary;
(b) the Borrower may merge or consolidate with any other
corporation (including a Subsidiary) if the continuing or surviving corporation
is organized under the laws of, and with a majority of its assets located in,
the United States or a state thereof or the District of Columbia and the
continuing or surviving corporation (if not the Borrower) assumes the
obligations of the Borrower hereunder under an agreement reasonably acceptable
to the Required Lenders, and immediately after such merger or consolidation, no
Default or Event of Default shall have occurred or exist; and
(c) any Subsidiary may merge with another Person in connection
with an acquisition of such Person permitted under the terms of the Loan
Documents; provided that, following such merger, the Borrower owns the same
percentage of outstanding voting stock of the surviving entity as Borrower
owned of such Subsidiary prior to such merger and further provided that no
Default or Event of Default exists hereunder or would result therefrom.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events
(each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment or otherwise; or
38
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount payable under clause (a) of this
Section 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or
any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, 5.3, 5.7, 5.9 or 5.10 (with respect
to any Loan Party's existence) or Article VII (subject in the case of covenants
incorporated by reference into Article VII, to any grace period provided in the
3.5-Year Parent Credit Agreement with respect thereto); or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any other Loan Document, and such failure shall
remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of or premium or
interest on any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a voluntary case
or other proceeding or file any petition seeking liquidation, reorganization or
other relief under any federal, state or foreign bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or petition
described in clause (i) of this Section, (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any such Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such
39
proceeding, (v) make a general assignment for the benefit of creditors, or (vi)
take any action for the purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or any substantial
part of its assets, under any federal, state or foreign bankruptcy, insolvency
or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay, shall
admit in writing its inability to pay, or shall fail to pay, its debts as they
become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding $7,500,000; or
(k) any judgment or order for the payment of money in excess of
$7,500,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that could reasonably be expected to have a Material
Adverse Effect, and there shall be a period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist;
(n) any provision of any Guaranty Agreement shall for any reason cease
to be valid and binding on, or enforceable against, any Guarantor, or any
Guarantor shall so state in writing, or any Guarantor shall seek to terminate
its Guaranty Agreement;
(o) an Event of Default shall occur under any other Loan Document; or
(p) an "Event of Default" shall occur under any of the Parent Credit
Agreements or the Prudential Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon
the written request of the Required Lenders shall, by notice to the Borrower,
take any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest
on the Loans, and all other
40
Obligations owing hereunder other than Hedging Obligations, to be, whereupon
the same shall become due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) exercise all remedies contained in any other Loan Document; and
(iv) exercise any other remedies available at law or in equity; and that, if an
Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all
other Obligations other than Hedging Obligations shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes
it to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent under this Agreement and the other Loan
Documents, together with all such actions and powers that are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent or attorney-in-fact may perform any
and all of its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions set forth in this
Article shall apply to any such sub-agent or attorney-in-fact and the Related
Parties of the Administrative Agent, any such sub-agent and any such
attorney-in-fact and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
(b) Reserved.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except those discretionary rights and
powers expressly contemplated by the Loan Documents that the Administrative
Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2), and (c) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it, its sub-agents or attorneys-in-fact with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct.
41
The Administrative Agent shall not be responsible for the negligence or
misconduct of any sub-agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall not be deemed to have knowledge
of any Default or Event of Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or any Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered hereunder or thereunder or in connection herewith
or therewith, (iii) the performance or observance of any of the covenants,
agreements, or other terms and conditions set forth in any Loan Document, (iv)
the validity, enforceability, effectiveness or genuineness of any Loan Document
or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article III or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower) concerning all matters pertaining to such
duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of
the Lenders and the Swingline Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each of the
Lenders and the Swingline Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, continue
to make its own decisions in taking or not taking of any action under or based
on this Agreement, any related agreement or any document furnished hereunder or
thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made
by the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement
42
and any other Loan Document in its capacity as a Lender as any other Lender and
may exercise or refrain from exercising the same as though it were not the
Administrative Agent; and the terms "Lenders", "Required Lenders", "holders of
Notes", or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity. The
bank acting as the Administrative Agent and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with the
Borrower or any Subsidiary or Affiliate of the Borrower as if it were not the
Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or
Event of Default shall exist at such time. If no successor Administrative Agent
shall have been so appointed, and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or any state thereof or a bank
which maintains an office in the United States, having a combined capital and
surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and
the other Loan Documents. If within 45 days after written notice is given of
the retiring Administrative Agent's resignation under this Section 9.7 no
successor Administrative Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article IX shall continue
in effect for the benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not taken by any
of them while it was serving as the Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
SECTION 9.9. DOCUMENTATION AGENT AND SYNDICATION AGENT. Each Lender
hereby designates Wachovia Securities, Inc. as Syndication Agent and Bank of
America, N.A., as Documentation Agent and agrees that the Documentation Agent
and the Syndication Agent shall have no duties or obligations under any Loan
Documents to any Lender or any Loan Party.
43
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Xxxxxxx Furniture Companies, Inc
000 Xxxxxxx Xxxxx Xx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopy Number: 000-000-0000
To the Administrative Agent
or Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Telecopy Number: 000-000-0000
With a copy to: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X./0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
To any other Lender: the address set forth in the Administrative
Questionnaire
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All such
notices and other communications shall, when transmitted by overnight delivery,
or faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the
Administrative Agent or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the
44
Borrower. The Administrative Agent and the Lenders shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Administrative Agent and Lenders shall not
have any liability to the Borrower or other Person on account of any action
taken or not taken by the Administrative Agent or the Lenders in reliance upon
such telephonic or facsimile notice. The obligation of the Borrower to repay
the Loans and all other Obligations hereunder shall not be affected in any way
or to any extent by any failure of the Administrative Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in any such telephonic or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder or any other Loan Document, and no
course of dealing between the Borrower and the Administrative Agent or any
Lender, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder.
The rights and remedies of the Administrative Agent and the Lenders hereunder
and under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
shall not be construed as a waiver of any Default or Event of Default,
regardless of whether the Administrative Agent or any Lender may have had
notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrower and the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date for the termination or reduction of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.21 (b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders which are required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the consent of
each Lender; (vi) release any guarantor or limit the liability of
45
any such guarantor under any guaranty agreement, without the written consent of
each Lender; (vii) release all or substantially all collateral (if any)
securing any of the Obligations, without the written consent of each Lender;
provided further, that no such agreement shall amend, modify or otherwise
affect the rights, duties or obligations of the Administrative Agent or the
Swingline Bank without the prior written consent of such Person. Any consent of
the Borrower otherwise required hereunder shall not be required if an Event of
Default has occurred and is continuing.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and
expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and its Affiliates, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan Document
shall be consummated) and (ii) all out-of-pocket costs and expenses (including,
without limitation, the reasonable fees, charges and disbursements of outside
counsel and the allocated cost of inside counsel) incurred by the
Administrative Agent or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement, including its
rights under this Section, or in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing (each, an "INDEMNITEE")
against, and hold each of them harmless from, any and all costs, losses,
liabilities, claims, damages and related expenses, including the fees, charges
and disbursements of any counsel for any Indemnitee, which may be incurred by
or asserted against any Indemnitee arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement or any other
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of any of
the transactions contemplated hereby, (ii) any Loan or any actual or proposed
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned by the Borrower or any
Subsidiary or any Environmental Liability related in any way to the Borrower or
any Subsidiary or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto; provided, that the 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 as determined by a court of
competent jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and each
of the Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
46
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent or the Swingline Lender under clauses
(a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent or the Swingline Lender, as the case may be, such Lender's
Pro Rata Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the Swingline Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000, in the case of any assignment of a
Revolving Loan, unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consent
(each such consent not to be unreasonably withheld or delayed), (ii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement with
respect to the Loan or the Commitment assigned, except that this clause (ii)
shall not prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Commitments on a non-pro rata basis, and (iii) the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a
47
processing and recordation fee of $1,000, and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire. Subject to acceptance and recording thereof by
the Administrative Agent pursuant to paragraph (c) of this Section, from and
after the effective date specified in each Assignment and Acceptance, the
Eligible 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, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.18, 2.19, 2.20 and 10.3. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (d)
of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Bank sell participations to
one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and/or obligations under this Agreement (including all or
a portion of its Commitment and/or the Loans owing to it); provided that (i)
such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Swingline Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver with
respect to the following to the extent affecting such Participant: (i) increase
the Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or reduce the rate of interest thereon,
or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby, (iii) postpone the date fixed for any payment of any
principal of, or interest on, any Loan or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date for the termination or reduction of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.21(b) or (c) in a manner that would alter the pro rata
48
sharing of payments required thereby , without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
consent of each Lender; (vi) release any guarantor or limit the liability of
any such guarantor under any guaranty agreement without the written consent of
each Lender except to the extent such release is expressly provided under the
terms of the Guaranty Agreement; or (vii) release all or substantially all
collateral (if any) securing any of the Obligations. Subject to paragraph (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.18, 2.19, and 2.20 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section.
(e) A Participant shall not be entitled to receive any greater payment
under Section 2.18 and Section 2.20 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.20
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.20(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
District Court of the Northern District of Georgia, and of any state court of
the State of Georgia located in Xxxxxx County and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Georgia state court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right
that the Administrative Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
49
(c) The Borrower irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section and brought in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
SECTION 10.8. SURVIVAL. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.19, 2.20, 2.21, and 10.3 and Article IX shall survive
and remain in full
50
force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans and the Commitments or the
termination of this Agreement or any provision hereof. All representations and
warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the other Loan Documents, and the making of the
Loans.
SECTION 10.9. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.10. CONFIDENTIALITY. Each of the Administrative Agent
and each Lender agrees to take normal and reasonable precautions to maintain
the confidentiality of any information designated in writing as confidential
and provided to it by the Borrower or any Subsidiary, except that such
information may be disclosed (i) to any Related Party of the Administrative
Agent or any such Lender, including without limitation accountants, legal
counsel and other advisors, (ii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iii) to the extent
requested by any regulatory agency or authority, (iv) to the extent that such
information becomes publicly available other than as a result of a breach of
this Section, or which becomes available to the Administrative Agent, any
Lender or any Related Party of any of the foregoing on a nonconfidential basis
from a source other than the Borrower, (v) in connection with the exercise of
any remedy hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, and (ix) subject to
provisions substantially similar to this Section 10.10, to any actual or
prospective assignee or Participant, or (vi) with the consent of the Borrower.
Any Person required to maintain the confidentiality of any information as
provided for in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such information as such Person would accord
its own confidential information.
SECTION 10.11. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan, together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
51
SECTION 10.12. WAIVER OF EFFECT OF CORPORATE SEAL. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this Agreement or any other Loan Document pursuant
to any requirement of law or regulation, and waives any shortening of the
statute of limitations that may result from not affixing the corporate seal to
this Agreement or such other Loan Documents.
SECTION 10.13. WAIVER RIGHT OF SETOFF. The Administrative Agent,
the Swingline Lender and each Lender hereby waives with respect to the
Obligations, any contractual or common law right of setoff against any deposits
of any Loan Party now or hereafter held by and other indebtedness or property
then or thereafter owing by such Lender or other holder to any Loan Party.
(remainder of page left intentionally blank)
52
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under seal by their respective authorized officers as of the
day and year first above written.
HAVERTYS CREDIT SERVICES, INC.
By
--------------------------------------------
Name:
Title:
[SEAL]
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT, AS SWINGLINE LENDER
AND AS A LENDER
By
--------------------------------------------
Name:
Title:
Revolving Commitment: $9,600,00
[SIGNATURE PAGE TO CREDIT SERVICES REVOLVING CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK,
By
--------------------------------------------
Name:
Title:
Revolving Commitment: $8,000,000
WACHOVIA SECURITIES, INC.,
AS SYNDICATION AGENT
By
--------------------------------------------
Name:
Title:
[SIGNATURE PAGE TO CREDIT SERVICES REVOLVING CREDIT AGREEMENT]
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENT AND AS A LENDER
By
--------------------------------------------
Name:
Title:
Revolving Commitment: $8,000,000
[SIGNATURE PAGE TO CREDIT SERVICES REVOLVING CREDIT AGREEMENT]
BRANCH BANKING & TRUST COMPANY
By
--------------------------------------------
Name:
Title:
Revolving Commitment: $6,400,000
[SIGNATURE PAGE TO CREDIT SERVICES REVOLVING CREDIT AGREEMENT]
REGIONS BANK
By
--------------------------------------------
Name:
Title:
Revolving Commitment: $4,800,000
[SIGNATURE PAGE TO CREDIT SERVICES REVOLVING CREDIT AGREEMENT]
US BANK NATIONAL ASSOCIATION
By
--------------------------------------------
Name:
Title:
Revolving Commitment: $3,200,000
[SIGNATURE PAGE TO CREDIT SERVICES REVOLVING CREDIT AGREEMENT]
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
------------------------------------------------------------------------------------------------
Pricing Fixed Charge Applicable Applicable Applicable
Level Coverage Margin for Margin for Percentage for
Ratio Eurodollar Base Rate Commitment
Loans Loans Fee
------------------------------------------------------------------------------------------------
I Less than 1.75% per 0.75% per 0.35% per
1.75:1.00 annum annum annum
------------------------------------------------------------------------------------------------
II Less than 1.50% per 0.50% per 0.30% per
2.00:1.00 but annum annum annum
greater or
equal to
1.75:1.00
------------------------------------------------------------------------------------------------
III Less than 1.375% per 0.375% per 0.25% per
2.25:1.00 but annum annum annum
greater than or
equal to
2.00:1.00
------------------------------------------------------------------------------------------------
IV Greater than 1.25% per 0.25% per 0.20% per
or equal to annum annum annum
2.25:1.00
------------------------------------------------------------------------------------------------
Schedule 7.4
EXECUTION COUNTERPART
REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 27, 2002
AMONG
XXXXXXX FURNITURE COMPANIES, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
SUNTRUST BANK
as Administrative Agent
===============================================================================
SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS; CONSTRUCTION........................................................................1
SECTION 1.1. DEFINITIONS.....................................................................................1
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS........................................................19
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION.............................................................19
SECTION 1.4. TERMS GENERALLY................................................................................20
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS..........................................................20
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES..............................................................20
SECTION 2.2. REVOLVING LOANS................................................................................20
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.............................................................21
SECTION 2.4. SWINGLINE COMMITMENT...........................................................................21
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC.........................................................21
SECTION 2.6. FUNDING OF BORROWINGS..........................................................................23
SECTION 2.7. INTEREST ELECTIONS.............................................................................23
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS..............................................24
SECTION 2.9. REPAYMENT OF LOANS.............................................................................25
SECTION 2.10. EVIDENCE OF INDEBTEDNESS.....................................................................25
SECTION 2.11. OPTIONAL PREPAYMENTS.......................................................................25
SECTION 2.12. MANDATORY PREPAYMENTS......................................................................26
SECTION 2.13. INTEREST ON LOANS..........................................................................26
SECTION 2.14. FEES.......................................................................................27
SECTION 2.15. COMPUTATION OF INTEREST AND FEES...........................................................28
SECTION 2.16. INABILITY TO DETERMINE INTEREST RATES......................................................28
SECTION 2.17. ILLEGALITY.................................................................................28
SECTION 2.18. INCREASED COSTS............................................................................29
SECTION 2.19. FUNDING INDEMNITY..........................................................................30
SECTION 2.20. TAXES......................................................................................30
SECTION 2.21. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS................................32
SECTION 2.22. MITIGATION OF OBLIGATIONS...................................................................33
SECTION 2.23. LETTERS OF CREDIT...........................................................................33
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT..........................................38
SECTION 3.1. CONDITIONS TO EFFECTIVENESS....................................................................38
SECTION 3.2. EACH CREDIT EVENT..............................................................................40
SECTION 3.3. DELIVERY OF DOCUMENTS..........................................................................40
ARTICLE IV REPRESENTATIONS AND WARRANTIES...............................................................40
SECTION 4.1. EXISTENCE; POWER...............................................................................40
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION............................................................41
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS...........................................................41
SECTION 4.4. FINANCIAL STATEMENTS...........................................................................41
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS...........................................................41
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS............................................................42
SECTION 4.7. INVESTMENT COMPANY ACT, ETC....................................................................42
SECTION 4.8. TAXES..........................................................................................42
SECTION 4.9. MARGIN REGULATIONS.............................................................................42
SECTION 4.10. ERISA........................................................................................42
SECTION 4.11. OWNERSHIP OF PROPERTY........................................................................43
SECTION 4.12. DISCLOSURE...................................................................................43
SECTION 4.13. LABOR RELATIONS..............................................................................43
SECTION 4.14. SUBSIDIARIES.................................................................................43
ARTICLE V AFFIRMATIVE COVENANTS........................................................................43
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION.....................................................44
SECTION 5.2. NOTICES OF MATERIAL EVENTS.....................................................................45
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS.................................................................45
SECTION 5.4. COMPLIANCE WITH LAWS, ETC......................................................................46
SECTION 5.5. PAYMENT OF OBLIGATIONS.........................................................................46
SECTION 5.6. BOOKS AND RECORDS..............................................................................46
SECTION 5.7. VISITATION, INSPECTION, ETC....................................................................46
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE...........................................................46
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT..........................................................46
SECTION 5.10. ADDITIONAL SUBSIDIARIES......................................................................47
ARTICLE VI FINANCIAL COVENANTS..........................................................................47
SECTION 6.1. FIXED CHARGE COVERAGE RATIO....................................................................47
ARTICLE VII NEGATIVE COVENANTS...........................................................................47
SECTION 7.1. INDEBTEDNESS...................................................................................47
SECTION 7.2. NEGATIVE PLEDGE................................................................................49
SECTION 7.3. FUNDAMENTAL CHANGES............................................................................50
SECTION 7.4. INVESTMENTS, LOANS, ETC........................................................................50
SECTION 7.5. RESTRICTED PAYMENTS............................................................................51
SECTION 7.6. SALE OF ASSETS.................................................................................52
SECTION 7.7. TRANSACTIONS WITH AFFILIATES...................................................................52
SECTION 7.8. RESTRICTIVE AGREEMENTS.........................................................................52
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS................................................................53
SECTION 7.10. HEDGING TRANSACTIONS.........................................................................53
SECTION 7.11. AMENDMENT TO CHARTER DOCUMENTS...............................................................53
SECTION 7.12. ACCOUNTING CHANGES...........................................................................53
ARTICLE VIII EVENTS OF DEFAULT..........................................................................54
SECTION 8.1. EVENTS OF DEFAULT..............................................................................54
ARTICLE IX THE ADMINISTRATIVE AGENT.....................................................................56
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT............................................................56
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT.......................................................57
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT...................................................57
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT.....................................................58
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT...............................................................58
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY............................................58
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.................................................................58
ARTICLE X MISCELLANEOUS................................................................................59
SECTION 10.1. NOTICES......................................................................................59
SECTION 10.2. WAIVER; AMENDMENTS...........................................................................60
SECTION 10.3. EXPENSES; INDEMNIFICATION....................................................................61
SECTION 10.4. SUCCESSORS AND ASSIGNS.......................................................................63
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS...................................65
SECTION 10.6. WAIVER OF JURY TRIAL.........................................................................66
SECTION 10.7. COUNTERPARTS; INTEGRATION....................................................................66
SECTION 10.8. SURVIVAL.....................................................................................66
SECTION 10.9. SEVERABILITY.................................................................................67
SECTION 10.10. CONFIDENTIALITY..............................................................................67
SECTION 10.11. INTEREST RATE LIMITATION.....................................................................67
SECTION 10.13. WAIVER OF EFFECT OF CORPORATE SEAL...........................................................67
ii
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Existing Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.6 - Permitted Asset Sales
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Guaranty Agreement
Exhibit E - Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.5 - Form of Notice of Swingline Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
iii
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is made
and entered into as of March 27, 2002, by and among XXXXXXX FURNITURE
COMPANIES, INC., a Maryland corporation (the "BORROWER"), the several banks and
other financial institutions from time to time party hereto (the "LENDERS"),
SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"ADMINISTRATIVE AGENT"), WACHOVIA SECURITIES, INC., as Syndication Agent and
BANK OF AMERICA, N.A., as Documentation Agent.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders
establish a $40,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this
Agreement, the Lenders severally, to the extent of their respective Commitments
as defined herein, are willing to establish the requested revolving credit
facility in favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms
defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):
"ADJUSTED LIBO RATE" shall mean, with respect to each
Interest Period for a Eurodollar Borrowing, the rate per annum obtained by
dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00
minus the Eurodollar Reserve Percentage.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to
such term in the opening paragraph hereof.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to
each Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed
by such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person
that directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For purposes of
this definition, "CONTROL" shall mean the power, directly or indirectly, either
to (i) vote 5% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to
exercise voting power, by contract or otherwise. The terms "CONTROLLING",
"CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have meanings correlative
thereto.
"AGGREGATE REVOLVING COMMITMENT AMOUNT" shall mean the
aggregate principal amount of the Aggregate Revolving Commitments from time to
time. On the Closing Date, the Aggregate Revolving Commitment Amount equals
$40,000,000.
"AGGREGATE REVOLVING COMMITMENTS" shall mean, collectively,
all Revolving Commitments of all Lenders at any time outstanding.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of
such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or
an Affiliate of such Lender) as such Lender may from time to time specify to
the Administrative Agent and the Borrower as the office by which its Loans of
such Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean, with respect to all Revolving
Loans outstanding on any date, a percentage per annum determined by reference
to the applicable Fixed Charge Coverage Ratio in effect on such date as set
forth on Schedule I attached hereto; provided, that a change in the Applicable
Margin resulting from a change in the Fixed Charge Coverage Ratio shall be
effective on the second day after which the Borrower delivers the financial
statements required by Section 5.1(a) or (b) and the compliance certificate
required by Section 5.1(c); provided further, that if at any time the Borrower
shall have failed to deliver such financial statements and such certificate,
the Applicable Margin shall be at Level I until such time as such financial
statements and certificate are delivered, at which time the Applicable Margin
shall be determined as provided above. Notwithstanding the foregoing, the
Applicable Margin from the Closing Date until the financial statements and
compliance certificate for the Borrower's Fiscal Quarter ending March 31, 2002
shall be at Level II.
"APPLICABLE PERCENTAGE" shall mean, with respect to the
commitment fee as of any date, the percentage per annum determined by reference
to the applicable Fixed Charge Coverage Ratio in effect on such date as set
forth on Schedule I attached hereto; provided, that a change in the Applicable
Percentage resulting from a change in the Fixed Charge Coverage Ratio shall be
effective on the second Business Day after which the Borrower delivers the
financial statements required by Section 5.1(a) or (b) and the compliance
certificate required by Section 5.1(c); provided, further, that if at any time
the Borrower shall have failed to deliver such financial statements and such
certificate, the Applicable Percentage shall be at Level I until such time as
such financial statements and certificate are delivered, at which time the
Applicable Percentage shall be determined as provided above. Notwithstanding
the foregoing, the Applicable Percentage for the commitment fee from the
Closing Date until the financial statements and compliance certificate for the
Borrower's Fiscal Quarter ending March 31, 2002 shall be at Level II.
"APPROVED FUND" means any Person (other than a natural
Person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business and that is administered or
2
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"ASSET COVERAGE RATIO" shall mean, as of any date, the ratio
of (a) the sum of (i) Consolidated Accounts Receivable as of such date plus
(ii) Consolidated Inventory as of such date to (b) Consolidated Total Debt as
of such date.
"ASSET LIKE KIND EXCHANGE" shall mean a like-kind exchange of
real estate assets of the Borrower or any of its Subsidiaries made in
accordance with Section 1031 and Section 1033 of the Code.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4(b)) and accepted by the
Administrative Agent, in the form of Exhibit C attached hereto or any other
form approved by the Administrative Agent.
"AVAILABILITY PERIOD" shall mean the period from the Closing
Date to the Revolving Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate
which the Administrative Agent publicly announces from time to time to be its
prime lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"BORROWER" shall have the meaning assigned to such term in
the introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of
the same Class and Type, made, converted or continued on the same date and in
case of Eurodollar Loans, as to which a single Interest Period is in effect, or
(ii) a Swingline Loan.
"BUSINESS DAY" shall mean (i) any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta, Georgia are
authorized or required by law to close and (ii) if such day relates to a
Borrowing of, a payment or prepayment of principal or interest on, a conversion
of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which dealings in Dollars are
carried on in the London interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and
3
the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean the occurrence of one or more
of the following events: (a) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of all or substantially
all of the assets of the Borrower to any Person or "group" (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or "group" (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof) acting in concert (other than by Class A
Shareholders) acquiring beneficial ownership, of 30% or more of the outstanding
shares of the Class A Common Stock of the Borrower; or (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
the Borrower by Persons who were neither (i) nominated by the current board of
directors or (ii) appointed by directors so nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable
law, rule or regulation after the date of this Agreement, (ii) any change in
any applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.18(b), by such Lender's or
the Issuing Bank's holding company, if applicable) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
"CLASS" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Swingline Loans and when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment or a
Swingline Commitment.
"CLASS A COMMON STOCK" shall mean all issued and outstanding
Class A common stock of the Borrower.
"CLASS A SHAREHOLDERS" shall mean the Persons that own the
Class A Common Stock on the Closing Date, together with their spouses and
direct descendants who acquire shares of Class A Common Stock by sale, transfer
or gift.
"CLOSING DATE" shall mean the date on which the conditions
precedent set forth in Section 3.1 and Section 3.2 have been satisfied or
waived in accordance with Section 10.2.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
4
"CONSOLIDATED ACCOUNTS RECEIVABLE" shall mean, as of any
date, all accounts receivable of the Borrower and its Subsidiaries as of such
date determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense,
(ii) income tax expense, (iii) depreciation and amortization, and (iv) all
other non-cash charges, less (c) any cash payments made during such period that
relate to non-cash charges included in determining Consolidated EBITDA for such
period or any prior period, in each case determined on a consolidated basis in
accordance with GAAP for such period.
"CONSOLIDATED EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA for such period and (b) Consolidated Lease Expense for such period.
"CONSOLIDATED FIXED CHARGES" shall mean, for the Borrower and
its Subsidiaries for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period, (b) scheduled principal payments
made on Consolidated Total Debt during such period, and (c) Consolidated Lease
Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Borrower
and its Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total interest expense, including without
limitation the interest component of any payments in respect of Capital Leases
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Transactions during such period (whether or
not actually paid or received during such period).
"CONSOLIDATED INVENTORY" shall mean all inventory of the
Borrower and its Subsidiaries as of such date determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED LEASE EXPENSE" shall mean, for the Borrower and
its Subsidiaries for any period, (i) the aggregate amount of fixed and
contingent rentals payable by the Borrower and its Subsidiaries with respect to
leases of real and personal property, less (ii) the aggregate amount of all
rental income payable to the Borrower and its Subsidiaries with respect to
leases or subleases of real and personal property, excluding in each case
Capital Lease Obligations, determined on a consolidated basis in accordance
with GAAP for such period.
"CONSOLIDATED NET INCOME" shall mean, for the Borrower and
its Subsidiaries for any period, the net income (or loss) of the Borrower and
its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, but excluding therefrom (to the extent otherwise included
therein) (i) any extraordinary gains or losses and the cumulative effect of
changes in accounting principles, (ii) any gains attributable to write-ups of
assets, (iii) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary and
(iv) any income (or loss) of any Person accrued prior to
5
the date it becomes a Subsidiary or is merged into or consolidated with the
Borrower or any Subsidiary on the date that such Person's assets are acquired
by the Borrower or any Subsidiary.
"CONSOLIDATED NET WORTH" shall mean, as of any date, (i) the
total assets of the Borrower and its Subsidiaries that would be reflected on
the Borrower's consolidated balance sheet as of such date prepared in
accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries, minus
(ii) the total liabilities of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP.
"CONSOLIDATED TOTAL ADJUSTED DEBT" shall mean, as of any
date, (i) Consolidated Total Debt (other than all Synthetic Lease Obligations
to the extent such Synthetic Lease Obligations are included in clause (ii)
below as Operating Lease Obligations), plus (ii) to the extent not included in
clause (i), all Operating Lease Obligations of Borrower and its Subsidiaries
measured at the present value of such obligations (using a 10% discount rate).
"CONSOLIDATED TOTAL CAPITAL" shall mean, as of any date, the
sum of (i) Consolidated Total Adjusted Debt as of such date and (ii)
Consolidated Net Worth as of such date.
"CONSOLIDATED TOTAL DEBT" shall mean, as of any date, all
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated
basis (excluding Indebtedness of the type described in subsection (xi) of the
definition of Indebtedness), including, but not limited to, all Obligations.
For purposes of determining Consolidated Total Debt, the principal amount of
any Synthetic Lease Obligation shall be deemed to be the amount that would be
reflected on the balance sheet of the Borrower and its Subsidiaries if such
Synthetic Lease Obligation were characterized as a capital lease rather than an
operating lease.
"CONTRACTUAL OBLIGATION" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of
the property in which it has an interest is bound.
"CREDIT SERVICES" shall mean Haverty Credit Services, Inc., a
Tennessee corporation.
"CREDIT SERVICES CREDIT AGREEMENT" shall mean that certain
Revolving Credit Agreement, dated as of the date hereof, by and among Credit
Services, the lenders from time to time party thereto and SunTrust Bank, as
administrative agent, as amended, restated, supplemented or otherwise modified
from time to time.
"DEFAULT" shall mean any condition or event that, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default.
"DEFAULT INTEREST" shall have the meaning set forth in
Section 2.13(c).
"DEFERRED COMPENSATION PLAN" shall mean the Top Hat Mutual
Fund Option Plan approved by the Board of Directors of the Borrower on January
15, 1999.
6
"DOLLAR(S)" and the sign "$" shall mean lawful money of the
United States of America.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
Person) approved by the Administrative Agent, the Issuing Bank, and unless (x)
such Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed). If the consent of the Borrower to an
assignment or to an Eligible Assignment is required hereunder (including a
consent to an assignment which does not meet the minimum assignment thresholds
specified in paragraph (b)(i) of Section 10.4), the Borrower shall be deemed to
have given its consent five (5) Business Days after the date notice thereof has
actually been delivered by the assigning Lender (through the Administrative
Agent) to the Borrower, unless such consent is expressly refused by the
Borrower prior to such fifth Business Day.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability,
contingent or otherwise (including any liability for damages, costs of
environmental investigation and remediation, costs of administrative oversight,
fines, natural resource damages, penalties or indemnities), of the Borrower or
any Subsidiary directly or indirectly resulting from or based upon (a) any
actual or alleged violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) any actual or alleged exposure to any Hazardous Materials, (d)
the Release or threatened Release of any Hazardous Materials or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether
or not incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability under
7
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt
by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator
appointed by the PBGC of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice,
or the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR" when used in reference to any Loan or Borrowing
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted LIBO Rate.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the aggregate of
the maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D. The Eurodollar
Reserve Percentage shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"EVENT OF DEFAULT" shall have the meaning provided in Article
VIII.
"EXCLUDED TAXES" shall mean with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other recipient of
any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, and by the jurisdiction under the laws
of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which any
Lender is located and (c) in the case of a Foreign Lender, any withholding tax
that (i) is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Agreement, (ii) is imposed on amounts
payable to such Foreign Lender at any time that such Foreign Lender designates
a new lending office, other than taxes that have accrued prior to the
designation of such lending office that are otherwise not Excluded Taxes, and
(iii) is attributable to such Foreign Lender's failure to comply with Section
2.20(e).
"EXISTING CREDIT AGREEMENT" shall mean that certain Credit
Agreement, dated as of March 31, 1998, by and among the Borrower, the lenders
from time to time party thereto, SunTrust Bank, formerly known as SunTrust
Bank, Atlanta, as Administrative Agent, and First
8
Union National Bank and Bank of America, N.A., formerly known as Nationsbank,
N.A, as Co-Agents.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"FEE LETTER" shall mean that certain fee letter, dated as of
February 5, 2002, executed by SunTrust Capital Markets, Inc. and SunTrust Bank
and accepted by Borrower.
"FISCAL QUARTER" shall mean a fiscal quarter of the Borrower.
"FISCAL YEAR" shall mean a fiscal year of the Borrower.
"FIXED CHARGE COVERAGE RATIO" shall mean, as of any date, the
ratio of (a) Consolidated EBITDAR to (b) Consolidated Fixed Charges, in each
case for the four fiscal quarter period of Borrower ending on or immediately
prior to such date.
"FOREIGN LENDER" shall mean any Lender that is not a United
States person under Section 7701(a)(3) of the Code.
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent basis and subject to the terms of
Section 1.3.
"GOVERNMENTAL AUTHORITY" shall mean the government of the
United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean
any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
9
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"GUARANTY AGREEMENT" shall mean that certain Guaranty
Agreement dated as of the date hereof executed by the Guarantors in favor of
the Administrative Agent for the benefit of the Lenders, substantially in the
form of Exhibit D, as amended, restated, supplemented or otherwise modified
from time to time.
"GUARANTORS" shall mean Credit Services and each other
Subsidiary of the Borrower now existing or hereafter acquired.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING OBLIGATIONS" of any Person shall mean any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired under (i) any and all
Hedging Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all
renewals, extensions and modifications of any Hedging Transactions and any and
all substitutions for any Hedging Transactions.
"HEDGING TRANSACTION" of any Person shall mean any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into between such Person and any Lender or Affiliate of any
Lender that is a rate swap, basis swap, forward rate transaction, commodity
swap, interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collateral transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"INDEBTEDNESS" of any Person shall mean, without duplication
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business on terms customary in the trade; provided, that for purposes
of Section 8.1(f), trade payables overdue by more than 120 days shall be
included in this definition except to the extent that any of such trade
payables are being disputed in good faith and by appropriate measures), (iv)
all obligations of such Person under any conditional sale or other title
retention agreement(s) relating to property acquired by such Person, (v) all
Capital Lease Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person in respect of letters of credit, acceptances or
similar extensions of credit, (vii) all Guarantees of
10
such Person of the type of Indebtedness described in clauses (i) through (v)
above, (viii) all Indebtedness of a third party secured by any Lien on property
owned by such Person, whether or not such Indebtedness has been assumed by such
Person, (ix) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any common stock of
such Person, (x) Off-Balance Sheet Liabilities and (xi) all Hedging
Obligations. The Indebtedness of any Person shall include the Indebtedness of
any partnership or joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded
Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Guarantors and the Administrative Agent as
amended, restated, supplemented or otherwise amended from time to time.
"INFORMATION MEMORANDUM" shall mean the Confidential
Information Memorandum dated February, 2002 relating to the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"INTEREST PERIOD" shall mean with respect to any Eurodollar
Borrowing, a period of one, two, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type), and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day
other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless such Business Day falls in
another calendar month, in which case such Interest Period would end
on the next preceding Business Day;
(iii) any Interest Period which begins on the last
Business Day of a calendar month or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period shall end on the last Business Day of such calendar
month; and
(iv) no Interest Period may extend beyond the Revolving
Commitment Termination Date.
"ISSUING BANK" shall mean SunTrust Bank or any other Lender,
each in its capacity as an issuer of Letters of Credit pursuant to Section
2.23.
"LC COMMITMENT" shall mean that portion of the Aggregate
Revolving Commitment Amount that may be used by the Borrower for the issuance
of Letters of Credit in an aggregate face amount not to exceed $5,000,000.
11
"LC DISBURSEMENT" shall mean a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit at such time,
plus (ii) the aggregate amount of all LC Disbursements that have not been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Lender shall be its Pro Rata Share of the total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender.
"LETTER OF CREDIT" shall mean any stand-by letter of credit
issued pursuant to Section 2.23 by the Issuing Bank for the account of the
Borrower pursuant to the LC Commitment.
"LIBOR" shall mean, for any applicable Interest Period with
respect to any Eurodollar Loan, the British Bankers' Association Interest
Settlement Rate per annum for deposits in Dollars for a period equal to such
Interest Period appearing on the display designated as Page 3750 on the
Telerate Screen (or such other page on that service or such other service
designated by the British Banker's Association for the display of such
Association's Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.
(London, England time) on the day that is two Business Days prior to the first
day of the Interest Period or if such Page 3750 is unavailable for any reason
at such time, the rate which appears on the Reuters Screen ISDA Page as of such
date and such time; provided, that if the Administrative Agent determines that
the relevant foregoing sources are unavailable for the relevant Interest
Period, LIBOR shall mean the rate of interest determined by the Administrative
Agent to be the average (rounded upward, if necessary, to the nearest 1/100th
of 1%) of the rates per annum at which deposits in Dollars are offered to the
Administrative Agent two (2) Business Days preceding the first day of such
Interest Period by leading banks in the London interbank market as of 10:00
a.m. for delivery on the first day of such Interest Period, for the number of
days comprised therein and in an amount comparable to the amount of the
Eurodollar Loan of the Administrative Agent.
"LIEN" shall mean any mortgage, pledge, security interest,
lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease
having the same economic effect as any of the foregoing).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement,
the Notes (if any), the LC Documents, the Guaranty Agreement, the Indemnity and
Contribution Agreement, all Notices of Borrowing, all Notices of
Conversion/Continuation and any and all other instruments, agreements,
documents and writings executed in connection with any of the foregoing.
"LOAN PARTIES" shall mean the Borrower and the Guarantors.
12
"LOANS" shall mean all Revolving Loans and Swingline Loans in
the aggregate or any of them, as the context shall require.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any
event, act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singularly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences whether
or not related, a material adverse change in, or a material adverse effect on,
(i) the business, results of operations, financial condition, assets,
liabilities or prospects of the Borrower or of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Loan Parties to perform
any of their respective obligations under the Loan Documents, (iii) the rights
and remedies of the Administrative Agent, the Issuing Bank, Swingline Lender,
and the Lenders under any of the Loan Documents or (iv) the legality, validity
or enforceability of any of the Loan Documents.
"MATERIAL INDEBTEDNESS" shall mean Indebtedness (other than
the Loans and Letters of Credit) or Hedging Obligations, of any one or more of
the Borrower and the Subsidiaries in an aggregate principal amount exceeding
$7,500,000. For purposes of determining Material Indebtedness, the "principal
amount" of any Hedging Obligations at any time shall be the Net Xxxx-to-Market
Exposure of such Hedging Obligations at such time.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NET XXXX-TO-MARKET EXPOSURE" of any Person shall mean, as of
any date, with respect to any Hedging Obligation, the excess (if any) of all
unrealized losses over all unrealized profits of such Person arising from such
Hedging Obligation. "Unrealized losses" shall mean the fair market value of the
cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of such date (assuming the Hedging Transaction was to be
terminated as of that date), and "unrealized profits" means the fair market
value of the gain to such Person of replacing such Hedging Transaction as of
such date (assuming such Hedging Transaction were to be terminated as of that
date).
"NOTES" shall mean, collectively, the Revolving Credit Notes
and the Swingline Note.
"NOTICES OF BORROWING" shall mean, collectively, the Notices
of Revolving Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice
given by the Borrower to the Administrative Agent in respect of the conversion
or continuation of an outstanding Borrowing as provided in Section 2.7(b)
hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set
forth in Section 2.3.
13
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set
forth in Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrower to
the Administrative Agent, the Issuing Bank or any Lender (including the
Swingline Lender) pursuant to or in connection with this Agreement or any other
Loan Document, including without limitation, all principal, interest (including
any interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent and any Lender
(including the Swingline Lender) incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, and all Hedging Obligations owing to the Administrative Agent, any
Lender or any of their Affiliates incurred in order to limit interest rate or
fee fluctuation with respect to the Loans and Letters of Credit, and all
obligations and liabilities incurred in connection with collecting and
enforcing the foregoing, together with all renewals, extensions, modifications
or refinancings thereof.
"OFF-BALANCE SHEET LIABILITIES" of any Person shall mean (i)
any repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, including, without limitation, any
Receivables Financings, (ii) any liability of such Person under any sale and
leaseback transactions which do not create a liability on the balance sheet of
such Person, (iii) any Synthetic Lease Obligation or (iv) any obligation
arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
"OPERATING LEASE OBLIGATIONS" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as operating leases on a balance sheet of such Person under GAAP.
"OSHA" shall mean the Occupational Safety and Health Act of
1970, as amended from time to time, and any successor statute.
"OTHER TAXES" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document other than Excluded Taxes.
"PARTICIPANT" shall have the meaning set forth in Section
10.4(d).
"PAYMENT OFFICE" shall mean the office of the Administrative
Agent located at 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, or such
other location as to which the Administrative Agent shall have given written
notice to the Borrower and the other Lenders.
14
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity performing similar
functions.
"PERMITTED ENCUMBRANCES" shall mean
(i) Liens imposed by law for taxes or special
assessments not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves
are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an
Event of Default or Liens created by or existing from any litigation
or legal proceeding that are currently being contested in good faith
by appropriate proceedings and with respect to which adequate reserves
are being maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary conduct of
business of the Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the United
States (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States), in each
case maturing within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the
time of acquisition thereof, of S&P or Xxxxx'x and in either case
maturing within six months from the date of acquisition thereof;
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(iii) certificates of deposit, bankers' acceptances and
time deposits maturing within 180 days of the date of acquisition
thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States or any
state thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (i)
above and entered into with a financial institution satisfying the
criteria described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of
the Permitted Investments described in clauses (i) through (iv) above.
"PERMITTED RECEIVABLES SALE" shall mean a sale of accounts
receivables with recourse, or discount or otherwise for less then the face
value thereof pursuant to a Receivables Financing.
"PERSON" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"PLAN" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PRO RATA SHARE" shall mean, with respect to any Commitment
of any Lender at any time, a percentage, the numerator of which shall be such
Lender's Commitment (or if such Commitments have been terminated or expired or
the Loans have been declared to be due and payable, such Lender's Revolving
Credit Exposure), and the denominator of which shall be the sum of such
Commitments of all Lenders (or if such Commitments have been terminated or
expired or the Loans have been declared to be due and payable, all Revolving
Credit Exposure of all Lenders under such Commitments).
"PRUDENTIAL AGREEMENT" shall mean that certain Note Agreement
dated December 29, 1993 by and between the Borrower and The Prudential
Insurance Company of America relating to the Borrower's $92,500,000 in
aggregate principal amount 10.10% notes due April 15, 2000, 7.16% notes due
April 15, 2007, 7.44% notes due October 13, 2008 and 7.95% notes due August 15,
2008, either as originally executed or as thereafter amended, modified or
supplemented.
"RECEIVABLES FINANCING" shall mean a transaction pursuant to
which funds are advanced to the Borrower or any of its Subsidiaries in exchange
for which the Borrower or such Subsidiaries shall sell, pledge, contribute or
place a Lien on any or all of its accounts or notes receivables to repay, in
whole or in part, such funds. However, this definition shall not include any
debit card, credit card or revolving charge sales where the obligor is a
financial institution.
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"REGULATION D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time, and any successor regulations.
"RELATED PARTIES" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Lenders holding
51% or more of the aggregate outstanding Revolving Commitments at such time or
if the Lenders have no Commitments outstanding, then Lenders holding 51% or
more of the Revolving Credit Exposure.
"REQUIREMENT OF LAW" for any Person shall mean the articles
or certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulations, or
determination of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"RESPONSIBLE OFFICER" shall mean any of the chairman,
president, the chief executive officer, the chief operating officer, the chief
financial officer, the treasurer or a vice president of the Borrower or such
other representative of the Borrower as may be designated in writing by any one
of the foregoing with the consent of the Administrative Agent; and, with
respect to the financial covenants only, the chief financial officer or the
treasurer of the Borrower.
"RESTRICTED PAYMENT" shall have the meaning set forth in
Section 7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the Borrower
and to participate in Letters of Credit and Swingline Loans in an aggregate
principal amount not exceeding the amount set forth with respect to such Lender
on the signature pages to this Agreement, or in the case of a Person becoming a
Lender after the Closing Date, the amount of the assigned "Revolving
Commitment" as provided in the Assignment and Acceptance executed by such
Person as an assignee, as the same may be increased or deceased pursuant to
terms hereof.
"REVOLVING COMMITMENT TERMINATION DATE" shall mean the
earliest of (i) September 30, 2005, (ii) the date on which the Revolving
Commitments are terminated pursuant to Section 2.8 and (iii) the date on which
all amounts outstanding under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise).
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"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any
Lender at any time, the sum of the outstanding principal amount of such
Lender's Revolving Loans, such Lender's LC Exposure and such Lender's Swingline
Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the
Borrower payable to the order of a requesting Lender in the principal amount of
such Lender's Revolving Commitment, in substantially the form of Exhibit A.
"REVOLVING LOAN" shall mean a loan made by a Lender (other
than the Swingline Lender) to the Borrower under its Revolving Commitment,
which may either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SALE/LEASEBACK TRANSACTION" shall have the meaning assigned
to such term in Section 7.9.
"SUBSIDIARY" shall mean, with respect to any Person (the
"PARENT"), any corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP
as of such date, as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity (i) of which securities
or other ownership interests representing more than 50% of the equity or more
than 50% of the ordinary voting power, or in the case of a partnership, more
than 50% of the general partnership interests are, as of such date, owned,
controlled or held, or (ii) that is, as of such date, otherwise controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one
or more subsidiaries of the parent. Unless otherwise indicated, all references
to "Subsidiary" hereunder shall mean a Subsidiary of the Borrower.
"SWINGLINE COMMITMENT" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal amount at
any time outstanding not to exceed $7,500,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender,
the principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank, or any other
Lender that may agree to make Swingline Loans hereunder.
"SWINGLINE LOAN" shall mean a loan made to the Borrower by
the Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the
Borrower payable to the order of the Swingline Lender in the principal amount
of the Swingline Commitment, substantially the form of Exhibit B.
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"SWINGLINE TERMINATION DATE" shall mean the date that is two
(2) Business Days prior to the Revolving Commitment Termination Date.
"SWINGLINE RATE" shall mean, for any Interest Period, the
rate as offered by the Swingline Lender and accepted by the Borrower. Borrower
shall have no obligation to accept this rate and Swingline Lender shall have no
obligation to provide it.
"SYNTHETIC LEASE" means a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by
the lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"SYNTHETIC LEASE OBLIGATIONS" shall mean, with respect to any
Person, the sum of (i) all remaining rental obligations of such Person as
lessee under Synthetic Leases that are attributable to principal and, without
duplication, (ii) all rental and purchase price payment obligations of such
Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.
"TAXES" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"364-DAY CREDIT AGREEMENT" shall mean that certain Revolving
Credit Facility dated as of the date hereof, by and among the Borrower, the
lenders from time to time party thereto and SunTrust Bank, as administrative
agent.
"TYPE", when used in reference to a Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"WITHDRAWAL LIABILITY" shall mean liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title
IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g. a "Revolving Loan") or by Type (e.g. a "Eurodollar Loan" or "Base Rate
Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan"). Borrowings also
may be classified and referred to by Class (e.g. "Revolving Borrowing") or by
Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g. " Revolving
Eurodollar Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any
covenant in Article VI to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies
19
the Borrower that the Required Lenders wish to amend Article VI for such
purpose), then the Borrower's compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". In the computation of periods of time
from a specified date to a later specified date, the word "from" means "from
and including" and the word "to" means "to but excluding". Unless the context
requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, supplemented or otherwise modified (subject
to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include
such Person's successors and permitted assigns, (iii) the words "hereof",
"herein" and "hereunder" and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular provision hereof,
(iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this
Agreement and (v) all references to a specific time shall be construed to refer
to the time in the city and state of the Administrative Agent's principal
office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject
to and upon the terms and conditions herein set forth, (i) the Lenders hereby
establish in favor of the Borrower a revolving credit facility pursuant to
which the Lenders severally agree (to the extent of such Lender's Revolving
Commitment) to make Revolving Loans to the Borrower in accordance with Section
2.2, (ii) the Issuing Bank agrees to issue Letters of Credit in accordance with
Section 2.23, (iii) the Swingline Lender agrees to make Swingline Loans in
accordance with Section 2.4, and (iv) each Lender agrees to purchase a
participation interest in the Letters of Credit and the Swingline Loans
pursuant to the terms and conditions hereof; provided, that in no event shall
the aggregate principal amount of all outstanding Revolving Loans, Swingline
Loans and outstanding LC Exposure exceed at any time the Aggregate Revolving
Commitments from time to time in effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make Revolving
Loans to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time that will not result in (a)
such Lender's Revolving Credit Exposure exceeding such Lender's
20
Revolving Commitment or (b) the sum of the aggregate Revolving Credit Exposures
of all Lenders exceeding the Aggregate Revolving Commitment Amount. During the
Availability Period, the Borrower shall be entitled to borrow, prepay and
reborrow Revolving Loans in accordance with the terms and conditions of this
Agreement; provided, that the Borrower may not borrow or reborrow should there
exist a Default or Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Revolving
Borrowing substantially in the form of Exhibit 2.3 attached hereto (a "NOTICE
OF REVOLVING BORROWING") (x) prior to 1:00 p.m. (Atlanta, Georgia time) on the
requested date of each Base Rate Borrowing and (y) prior to 1:00 p.m. (Atlanta,
Georgia time) at least three (3) Business Days prior to the requested date of
each Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be
irrevocable and shall specify: (i) the aggregate principal amount of such
Borrowing, (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the
case of a Eurodollar Borrowing, the duration of the initial Interest Period
applicable thereto (subject to the provisions of the definition of Interest
Period). Each Revolving Borrowing shall consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may request. The aggregate principal amount
of each Eurodollar Borrowing shall be not less than $2,500,000 or a larger
multiple of $500,000, and the aggregate principal amount of each Base Rate
Borrowing shall not be less than $1,000,000 or a larger multiple of $100,000;
provided, that Base Rate Loans made pursuant to Section 2.5 or Section 2.23(d)
may be made in lesser amounts as provided therein. At no time shall the total
number of Eurodollar Borrowings outstanding at any time exceed six. Promptly
following the receipt of a Notice of Revolving Borrowing in accordance
herewith, the Administrative Agent shall advise each Lender of the details
thereof and the amount of such Lender's Revolving Loan to be made as part of
the requested Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT. Subject to the terms
and conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans to the Borrower, from time to time from the Closing Date to the Swingline
Termination Date, in an aggregate principal amount outstanding at any time not
to exceed the lesser of (i) the Swingline Commitment then in effect and (ii)
the difference between the Aggregate Revolving Commitment Amount and the
aggregate Revolving Credit Exposures of all Lenders. The Borrower shall be
entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC. (a)
The Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing ("NOTICE OF
SWINGLINE BORROWING") prior to 2:00 p.m. (Atlanta, Georgia time) on the
requested date of each Swingline Borrowing. Each Notice of Swingline Borrowing
shall be irrevocable and shall specify: (i) the principal amount of such
Swingline Loan, (ii) the date of such Swingline Loan (which shall be a Business
Day) and (iii) the account of the Borrower to which the proceeds of such
Swingline Loan should be credited. The Administrative Agent will promptly
advise the Swingline Lender of each Notice of Swingline Borrowing. Each
Swingline Loan shall accrue interest at the Swingline Rate and shall
21
have an Interest Period (subject to the definition thereof) as agreed between
the Borrower and the Swingline Lender. The aggregate principal amount of each
Swingline Loan shall be not less than $250,000 or a larger multiple of $1,000,
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. The Swingline Lender will make the proceeds of each Swingline Loan
available to the Borrower in Dollars in immediately available funds at the
account specified by the Borrower in the applicable Notice of Swingline
Borrowing not later than 4:00 p.m. on the requested date of such Swingline
Loan.
(b) The Swingline Lender, at any time and from time to time
in its sole discretion, may, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on its behalf),
give a Notice of Revolving Borrowing to the Administrative Agent requesting the
Lenders (including the Swingline Lender) to make Base Rate Loans in an amount
equal to the unpaid principal amount of any Swingline Loan. Each Lender will
make the proceeds of its Base Rate Loan included in such Borrowing available to
the Administrative Agent for the account of the Swingline Lender in accordance
with Section 2.6, which will be used solely for the repayment of such Swingline
Loan.
(c) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date
that such Base Rate Borrowing should have occurred. On the date of such
required purchase, each Lender shall promptly transfer, in immediately
available funds, the amount of its participating interest to the Administrative
Agent for the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall
automatically become a Base Rate Loan on the effective date of any such
participation and interest shall become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan
pursuant to Section 2.5(b) or to purchase the participating interests pursuant
to Section 2.5(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may
have or claim against the Swingline Lender, the Borrower or any other Person
for any reason whatsoever, (ii) the existence of a Default or an Event of
Default or the termination of any Lender's Revolving Commitment, (iii) the
existence (or alleged existence) of any event or condition which has had or
could reasonably be expected to have a Material Adverse Effect, (iv) any breach
of this Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. If such
amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the date of
demand thereof at the Federal Funds Rate. Until such time as such Lender makes
its required payment, the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be deemed to
have assigned any and all payments made of principal and interest on its Loans
and any other amounts due to it hereunder, to the Swingline Lender to fund the
amount
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of such Lender's participation interest in such Swingline Loans that such
Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.
SECTION 2.6. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by
it hereunder on the proposed date thereof by wire transfer in immediately
available funds by 3:30 p.m. (Atlanta, Georgia time) to the Administrative
Agent at the Payment Office; provided, that the Swingline Loans will be made as
set forth in Section 2.5. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts that it receives,
in like funds by the close of business on such proposed date, to an account
maintained by the Borrower with the Administrative Agent or at the Borrower's
option, by effecting a wire transfer of such amounts to an account designated
by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified
by any Lender prior to 5:00 p.m. one (1) Business Day prior to the date of a
Borrowing in which such Lender is participating that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing,
the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date, and the Administrative
Agent, in reliance on such assumption, may make available to the Borrower on
such date a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall immediately
pay such corresponding amount to the Administrative Agent together with
interest at the rate specified for such Borrowing. Nothing in this subsection
shall be deemed to relieve any Lender from its obligation to fund its Pro Rata
Share of any Borrowing hereunder or to prejudice any rights which the Borrower
may have against any Lender as a result of any default by such Lender
hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
SECTION 2.7. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified
in the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a
different Type or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders
23
holding Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the
Borrower shall give the Administrative Agent prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing (a "NOTICE
OF CONVERSION/CONTINUATION") that is to be converted or continued, as the case
may be, (x) prior to 1:00 p.m.(Atlanta, Georgia time) on the requested date of
a conversion into a Base Rate Borrowing and (y) prior to 1:00 p.m. (Atlanta,
Georgia time) three (3) Business Days prior to a continuation of or conversion
into a Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall
be irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being elected with
respect to different portions thereof, the portions thereof that are to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to
such Notice of Continuation/Conversion, which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing,
the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of "Interest Period". If
any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings
and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect
of any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice
of Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as,
a Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation,
the Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
SECTION 2.8. OPTIONAL REDUCTION AND TERMINATION OF
COMMITMENTS.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Revolving Commitment Termination Date, except that the
Swingline Commitment shall terminate on the Swingline Termination Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower may
reduce the Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, that (i) any partial
24
reduction shall apply to reduce proportionately and permanently the Revolving
Commitment of each Lender, (ii) any partial reduction pursuant to this Section
2.8 shall be in an amount of at least $2,500,000 and any larger multiple of
$500,000, and (iii) no such reduction shall be permitted which would reduce the
Aggregate Revolving Commitments to an amount less than the outstanding
Revolving Credit Exposures of all Lenders. Any such reduction in the Aggregate
Revolving Commitments shall result in a proportionate reduction (rounded to the
next lowest integral multiple of $100,000) in the Swingline Commitment and the
LC Commitment; provided, however, no such reduction shall reduce the LC
Commitment to an amount less than the LC Exposure of all Lenders.
SECTION 2.9. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest thereon) on
the Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued interest thereon) on the earlier of (i)
the last day of the Interest Period applicable to such Borrowing and (ii) the
Swingline Termination Date.
SECTION 2.10. EVIDENCE OF INDEBTEDNESS. (a) Each Lender
shall maintain in accordance with its usual practice appropriate records
evidencing the indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Lender from time to time under
this Agreement. The Administrative Agent shall maintain appropriate records in
which shall be recorded (i) the Revolving Commitment of each Lender, (ii) the
amount of each Loan made hereunder by each Lender, the Class and Type thereof
and the Interest Period applicable thereto, (iii) the date of each continuation
thereof pursuant to Section 2.7, (iv) the date of each conversion of all or a
portion thereof to another Type pursuant to Section 2.7, (v) the date and
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder in respect of such Loans and
(vi) both the date and amount of any sum received by the Administrative Agent
hereunder from the Borrower in respect of the Loans and each Lender's Pro Rata
Share thereof. The entries made in such records shall be prima facie evidence
of the existence and amounts of the obligations of the Borrower therein
recorded; provided, that the failure or delay of any Lender or the
Administrative Agent in maintaining or making entries into any such record or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans (both principal and unpaid accrued interest) of such Lender
in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline
Lender) at any time, the Borrower agrees that it will execute and deliver to
such Lender a Revolving Credit Note and, in the case of the Swingline Lender
only, a Swingline Note, payable to the order of such Lender.
SECTION 2.11. OPTIONAL PREPAYMENTS.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, without premium or
penalty, by giving irrevocable written
25
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 1:00 p.m. not less than three (3) Business Days prior to
any such prepayment, (ii) in the case of any prepayment of any Base Rate
Borrowing, 1:00 p.m. on the date of such prepayment, and (iii) in the case of
Swingline Borrowings, prior to 11:00 a. m. on the date of such prepayment. Each
such notice shall be irrevocable and shall specify the proposed date of such
prepayment and the principal amount of each Borrowing or portion thereof to be
prepaid. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each affected Lender of the contents thereof and of such
Lender's Pro Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the
amount so prepaid in accordance with Section 2.13(e); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day of an
Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.19. Each partial prepayment of any Loan (other
than a Swingline Loan) shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type pursuant to
Section 2.3 or in the case of a Swingline Loan pursuant to Section 2.5. Each
prepayment of a Borrowing shall be applied ratably to the Loans comprising such
Borrowing.
SECTION 2.12. MANDATORY PREPAYMENTS. If at any time the
Revolving Credit Exposure of all Lenders exceeds the aggregate principal amount
of the Revolving Credit Commitments at such time, the Borrower shall
immediately repay Swingline Loans and Revolving Loans in an amount equal to
such excess, together with all accrued and unpaid interest on such excess
amount and any amounts due under Section 2.19. Each prepayment of a Borrowing
shall be applied ratably first to the Swingline Loans to the full extent
thereof, then to the Revolving Base Rate Loans to the full extent thereof, and
finally to Revolving Eurodollar Loans to the full extent thereof.
SECTION 2.13. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus, in each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at
the Swingline Rate in effect from time to time.
(c) While an Event of Default exists or after acceleration,
at the option of the Required Lenders, the Borrower shall pay interest
("DEFAULT INTEREST") with respect to all Eurodollar Loans at the rate otherwise
applicable for the then-current Interest Period plus an additional 2% per annum
until the last day of such Interest Period, and thereafter, and with respect to
all Base Rate Loans (including all Swingline Loans) and all other Obligations
hereunder (other than Loans and Hedging Obligations), at the Base Rate plus the
Applicable Margin plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but excluding the
date of any repayment thereof. Interest on all
26
outstanding Base Rate Loans shall be payable quarterly in arrears on the last
day of each March, June, September and December and on the Revolving Commitment
Termination Date. Interest on all outstanding Eurodollar Loans shall be payable
on the last day of each Interest Period applicable thereto, and, in the case of
any Eurodollar Loans having an Interest Period in excess of three months, on
each day which occurs every three months, after the initial date of such
Interest Period, and on the Revolving Commitment Termination Date. Interest on
each Swingline Loan shall be payable on the maturity date of such Loan, which
shall be the last day of the Interest Period applicable thereto, and on the
Swingline Termination Date. Interest on any Loan which is converted into a Loan
of another Type or which is repaid or prepaid shall be payable on the date of
such conversion or on the date of any such repayment or prepayment (on the
amount repaid or prepaid) thereof. All Default Interest shall be payable on
demand.
(e) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder and shall promptly notify the Borrower
and the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.14. FEES.
(a) The Borrower shall pay to the Administrative Agent for
its own account fees in the amounts and at the times previously agreed upon by
the Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Percentage (determined daily in accordance with
Schedule I) on the daily amount of the unused Revolving Commitment of such
Lender during the Availability Period. For purposes of computing commitment
fees with respect to the Revolving Commitments, the Revolving Commitment of
each Lender shall be deemed used to the extent of the outstanding Revolving
Loans and LC Exposure, but not Swingline Exposure, of such Lender.
(c) Letter of Credit Fee. The Borrower agrees to pay (i) to
the Administrative Agent, for the account of each Lender, a letter of credit
fee with respect to its participation in each Letter of Credit, which shall
accrue at the Applicable Margin for Eurodollar Loans then in effect on the
average daily amount of such Lender's LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) attributable to such
Letter of Credit during the period from and including the date of issuance of
such Letter of Credit to but excluding the date on which such Letter of Credit
expires or is drawn in full (including without limitation any LC Exposure that
remains outstanding after the Revolving Commitment Termination Date) and (ii)
to the Issuing Bank for its own account a fronting fee, which shall accrue at
the rate of 0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the Availability Period (or until the date that such Letter of Credit is
irrevocably cancelled, whichever is later), as well as the Issuing Bank's
standard fees with respect to issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder.
27
(d) Payments. Accrued fees shall be payable quarterly in
arrears on the last day of each March, June, September and December, commencing
on June 30, 2002 and on the Revolving Commitment Termination Date (and if
later, the date the Loans and LC Exposure shall be repaid in their entirety).
SECTION 2.15. COMPUTATION OF INTEREST AND FEES. All
computations of interest and fees hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount or fee
hereunder shall be made in good faith and, except for manifest error, shall be
final, conclusive and binding for all purposes.
SECTION 2.16. INABILITY TO DETERMINE INTEREST RATES. If
prior to the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant
interbank market, adequate means do not exist for ascertaining LIBOR
for such Interest Period, or
(ii) the Administrative Agent shall have received notice
from the Required Lenders that the Adjusted LIBO Rate does not
adequately and fairly reflect the cost to such Lenders (or Lender, as
the case may be) of making, funding or maintaining their (or its, as
the case may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations
of the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any
Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing has
previously been given that it elects not to borrow on such date, then such
Revolving Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.17. ILLEGALITY. If any Change in Law shall make
it unlawful or impossible for any Lender to make, maintain or fund any
Eurodollar Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Eurodollar Revolving Loans,
or to continue or convert outstanding Loans as or into Eurodollar Loans, shall
be suspended. In the case of the making of a Eurodollar Revolving Borrowing,
such Lender's Revolving Loan shall be made as a Base Rate Loan as part of the
same Revolving Borrowing for the same Interest Period and if the affected
28
Eurodollar Loan is then outstanding, such Loan shall be converted to a Base
Rate Loan either (i) on the last day of the then current Interest Period
applicable to such Eurodollar Loan if such Lender may lawfully continue to
maintain such Loan to such date or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain such Eurodollar Loan to
such date. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, designate a different
Applicable Lending Office if such designation would avoid the need for giving
such notice and if such designation would not otherwise be disadvantageous to
such Lender in the good faith exercise of its discretion.
SECTION 2.18. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement that is not otherwise included
in the determination of the Adjusted LIBO Rate hereunder against
assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the
Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any Letter of
Credit or any participation therein;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or
any other amount), then the Borrower shall promptly pay, upon written notice
from and demand by such Lender on the Borrower (with a copy of such notice and
demand to the Administrative Agent), to the Administrative Agent for the
account of such Lender, within five Business Days after the date of such notice
and demand, additional amount or amounts sufficient to compensate such Lender
or the Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined
that on or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender's or the Issuing Bank's capital (or on the capital of such Lender's
or the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
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(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation, as the case may
be, specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such
compensation.
SECTION 2.19. FUNDING INDEMNITY. In the event of (a) the
payment of any principal of a Eurodollar Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, or (c) the failure by
the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the
date specified in any applicable notice (regardless of whether such notice is
withdrawn or revoked) then, in any such event, the Borrower shall compensate
each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case
of a Eurodollar Loan, such loss, cost or expense shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (A) the amount of
interest that would have accrued on the principal amount of such Eurodollar
Loan if such event had not occurred at the Adjusted LIBO Rate applicable to
such Eurodollar Loan for the period from the date of such event to the last day
of the then current Interest Period therefor (or in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest that would
accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount
payable under this Section 2.19 submitted to the Borrower by any Lender (with a
copy to the Administrative Agent) shall be conclusive, absent manifest error.
SECTION 2.20. TAXES.
(a) Any and all payments by or on account of any obligation
of the Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided, that if the Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, any Lender or the Issuing
Bank (as the case may be) shall receive an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
30
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within five (5) Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the Code or any treaty to which the
United States is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate. Without limiting the generality of the foregoing, each Foreign
Lender agrees that it will deliver to the Administrative Agent and the Borrower
(or in the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2) duly
completed copies of (i) Internal Revenue Service Form W-8 ECI, or any successor
form thereto, certifying that the payments received from the Borrower hereunder
are effectively connected with such Foreign Lender's conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN,
or any successor form thereto, certifying that such Foreign Lender is entitled
to benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest; or (iii)
Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the
payment to the Foreign Lender qualifies as "portfolio interest" exempt from
U.S. withholding tax under Code section 871(h) or 881(c), and (B) stating that
(1) the Foreign Lender is not a bank for purposes of Code section 881(c)(3)(A),
or the obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary course of its
trade or business, within the meaning of that section; (2) the Foreign Lender
is not a 10% shareholder of the Borrower within the meaning of Code section
871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a controlled
foreign corporation that is related to the Borrower within the meaning of Code
section 881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may
be applicable to the Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each
such Foreign Lender shall deliver to the Borrower and the Administrative Agent
such forms on or before the date that it becomes a party to this Agreement (or
in the case of a Participant, on or before the date such Participant purchases
the related participation). In addition, each such Foreign Lender shall deliver
such
31
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Foreign Lender. Each such Foreign Lender shall promptly
notify the Borrower and the Administrative Agent at any time that it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification adopted by the
Internal Revenue Service for such purpose).
SECTION 2.21. PAYMENTS GENERALLY; PRO RATA TREATMENT.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.18, 2.19 or 2.20, or
otherwise) prior to 1:00 p.m. (Atlanta, Georgia time), on the date when due, in
immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.18, 2.19 and 2.20 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be made payable for
the period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall obtain payment in respect of any
principal of or interest on any of its Revolving Loans or participations in LC
Disbursements or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements
and Swingline Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans and participations in LC Disbursements and
Swingline Loans; provided, that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed
32
to apply to any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements or Swingline Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply).
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount or amounts due.
In such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.5(b), 2.23(d) or (e), 2.6(b), 2.21(d) or
10.3(d), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are
fully paid.
SECTION 2.22. MITIGATION OF OBLIGATIONS. If any Lender
requests compensation under Section 2.18, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.20, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the sole judgment of
such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable under Section 2.18 or Section 2.20, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all costs and expenses incurred by any Lender in
connection with such designation or assignment.
SECTION 2.23. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section 2.23(d),
agrees to issue, at the request of the Borrower, Letters of Credit for the
account of the Borrower on the terms and conditions hereinafter set forth;
provided, that (i) each Letter of Credit shall expire on the earlier of (A) the
date one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to the
Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $250,000; and (iii) the Borrower may not request any
Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would
33
exceed the LC Commitment or (B) the aggregate Revolving Credit Exposure of all
Lenders would exceed the Aggregate Revolving Commitment Amount. Upon the
issuance of each Letter of Credit each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Bank
without recourse a participation in such Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn under
such Letter of Credit. Each issuance of a Letter of Credit shall be deemed to
utilize the Revolving Commitment of each Lender by an amount equal to the
amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter
of Credit is to be issued (or amended, extended or renewed, as the case may
be), the expiration date of such Letter of Credit, the amount of such Letter of
Credit , the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. In addition to the satisfaction of the conditions in Article
III, the issuance of such Letter of Credit (or any amendment which increases
the amount of such Letter of Credit) will be subject to the further conditions
that such Letter of Credit shall be in such form and contain such terms as the
Issuing Bank shall approve and that the Borrower shall have executed and
delivered any additional applications, agreements and instruments relating to
such Letter of Credit as the Issuing Bank shall reasonably require; provided,
that in the event of any conflict between such applications, agreements or
instruments and this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received such
notice and if not, the Issuing Bank will provide the Administrative Agent with
a copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the
date the Issuing Bank is to issue the requested Letter of Credit directing the
Issuing Bank not to issue the Letter of Credit because such issuance is not
then permitted hereunder because of the limitations set forth in Section
2.23(a) or that one or more conditions specified in Article III are not then
satisfied, then, subject to the terms and conditions hereof, the Issuing Bank
shall, on the requested date, issue such Letter of Credit in accordance with
the Issuing Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting
to represent a demand for payment under a Letter of Credit promptly following
its receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank
has made or will make a LC Disbursement thereunder; provided, that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such
LC Disbursement. The Borrower shall be irrevocably and unconditionally
obligated to reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing Bank in respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified the Issuing
Bank and the Administrative Agent prior to 11:00 a.m. on the Business Day
immediately prior to the date on which such drawing is honored that the
Borrower intends to
34
reimburse the Issuing Bank for the amount of such drawing in funds other than
from the proceeds of Revolving Loans, the Borrower shall be deemed to have
timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank; provided, that
for purposes solely of such Borrowing, the conditions precedents set forth in
Section 3.2 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with Section 2.3, and each
Lender shall make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.6. The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share
of such LC Disbursement on and as of the date which such Base Rate Borrowing
should have occurred. Each Lender's obligation to fund its participation shall
be absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the existence
of a Default or an Event of Default or the termination of the Aggregate
Revolving Commitments, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any of its Subsidiaries, (iv) any breach of this
Agreement by the Borrower or any other Lender, (v) any amendment, renewal or
extension of any Letter of Credit or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. On the date
that such participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its participation to
the Administrative Agent for the account of the Issuing Bank. Whenever, at any
time after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be, will distribute
to such Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to a
trustee, receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the Administrative Agent or the Issuing
Bank any portion thereof previously distributed by the Administrative Agent or
the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any
amount required to be paid pursuant to paragraph (d) of this Section 2.23 on
the due date therefor, such Lender shall pay interest to the Issuing Bank
(through the Administrative Agent) on such amount from such due date to the
date such payment is made at a rate per annum equal to the Federal Funds Rate;
provided, that if such Lender shall fail to make such payment to the Issuing
Bank within three (3) Business Days of such due date, then, retroactively to
the due date, such Lender shall be obligated to pay interest on such amount at
the Default Rate.
(g) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders
35
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Issuing Bank and the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid fees thereon; provided, that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described
in clause (g) or (h) of Section 8.1. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Borrower agrees to execute any documents and/or
certificates to effectuate the intent of this paragraph. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest
and profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall applied by the Administrative Agent to reimburse
the Issuing Bank for LC Disbursements for which it had not been reimbursed and
to the extent so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not so applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(h) Promptly following the end of each Fiscal Quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to each Lender
and the Borrower a report describing the aggregate Letters of Credit
outstanding at the end of such Fiscal Quarter. Upon the request of any Lender
from time to time, the Issuing Bank shall deliver to such Lender any other
information reasonably requested by such Lender with respect to each Letter of
Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of any Letter
of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or
other right which the Borrower or any Subsidiary or Affiliate of the
Borrower may have at any time against a beneficiary or any transferee
of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or transferee may be acting), any Lender (including the
Issuing Bank) or any other Person, whether in connection with this
Agreement or the Letter of Credit or any document related hereto or
thereto or any unrelated transaction;
36
(iii) Any draft or other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document to the Issuing Bank
that does not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether
or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge
of, or provide a right of setoff against, the Borrower's obligations
hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
the Issuing Bank; provided, that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts or other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree, that in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
that appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be amended from time
to time, and, to the extent not inconsistent therewith, the governing law of
this Agreement set forth in Section 10.5.
37
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the
xxxxxx (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent) required
to be reimbursed or paid by the Borrower hereunder, under any other Loan
Document and under any agreement with the Administrative Agent or SunTrust
Capital Markets, Inc., as Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have received
the following:
(i) a counterpart of this Agreement signed by or on behalf of each
party hereto or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement;
(ii) duly executed Notes payable to such Lender;
(iii) the duly executed Guaranty Agreement and Indemnity and
Contribution Agreement;
(iv) evidence that the Existing Credit Agreement has been
terminated, and all interest, fees and principal accrued thereunder through
the Closing Date will be paid in full from the initial Revolving Loan under
this Agreement and the initial revolving loan under the 364-Day Credit
Agreement;
(v) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of its bylaws and of the
resolutions of its boards of directors, authorizing the execution, delivery
and performance of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such Loan Party
executing the Loan Documents to which it is a party;
(vi) certified copies of the articles of incorporation or other
charter documents of each Loan Party, together with certificates of good
standing or existence, as may be available from the Secretary of State of
the jurisdiction of incorporation or formation of such Loan Party and each
other jurisdiction where such Loan Party is required to be qualified to do
business as a foreign corporation;
(vii) a favorable written opinion of Xxxxx, Xxxxxxxx & Xxxxxxx,
counsel to the Loan Parties, addressed to the Administrative Agent and each
of the Lenders, and covering such matters relating to the Loan Parties, the
Loan Documents and the
38
transactions contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request;
(viii) a certificate, dated the Closing Date and signed by a
Responsible Officer, confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of Section 3.2;
(ix) a duly executed Notice of Borrowing;
(x) a duly executed funds disbursement agreement for the initial
Borrowing;
(xi) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired; and
(xii) copies of the consolidated financial statements of Borrower
and its Subsidiaries for the Fiscal Years ended 1999, 2000, and 2001,
including balance sheets, income and cash flow statements audited by
independent public accountants of recognized national standing and prepared
in conformity with GAAP and such other financial information as the
Administrative Agent may reasonably request;
(xiii) certificates of insurance issued on behalf of insurers of the
Borrower and all guarantors, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the Borrower
and all guarantors, naming the Administrative Agent as additional insured;
and
(xiv) a certified copy of the Prudential Agreement as in effect on
the date hereof.
(c) The Borrower and all other parties thereto shall have executed
and delivered the 364-Day Credit Agreement, which shall be in form and substance
satisfactory to the Administrative Agent and the Required Lenders, and the
Administrative Agent and the Required Lenders shall have received certified
copies thereof, together with evidence that all conditions precedent to the
effectiveness thereof have been satisfied and all transactions contemplated by
the 364-Day Credit Agreement have been consummated.
(d) Credit Services and all other parties thereto shall have
executed and delivered the Credit Services Credit Agreement, which shall be in
form and substance satisfactory to the Administrative Agent and the Required
Lenders, and the Administrative Agent and the Required Lenders shall have
received certified copies thereof, together with evidence that all conditions
precedent to the effectiveness thereof have been satisfied and all transactions
contemplated by the Credit Services Credit Agreement have been consummated.
39
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit is subject to the satisfaction of
the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance, amendment,
extension or renewal of such Letter of Credit, in each case before and after
giving effect thereto, except for those representations and warranties made as
of a specific date;
(c) since the date of the audited financial statements of the
Borrower described in Section 4.4, there shall have been no change which has had
or could reasonably be expected to have a Material Adverse Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the Administrative
Agent or the Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
40
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, stockholder,
action. This Agreement has been duly executed and delivered by the Borrower, and
constitutes, and each other Loan Document to which any Loan Party is a party,
when executed and delivered by such Loan Party, will constitute, valid and
binding obligations of the Borrower or such Loan Party (as the case may be),
enforceable against it in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect (b) will not violate any applicable law, rule or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any judgment, order or ruling of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries including, without limitation, the Prudential Agreement and any
Receivables Financing and (d) will not result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished to
each Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 2001 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended
audited by Ernst & Young LLP. Such financial statements fairly present the
consolidated financial condition of the Borrower and its Subsidiaries as of such
dates and the consolidated results of operations for such periods in conformity
with GAAP consistently applied, subject to year end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii).
Since December 31, 2001 there have been no changes with respect to the Borrower
and its Subsidiaries which have had or could reasonably be expected to have,
singly or in the aggregate, a Material Adverse Effect.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) that in any manner draws
into question the validity or enforceability of this Agreement or any other Loan
Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental
41
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and
each Subsidiary is in compliance with (a) all applicable laws, rules,
regulations, judgments and orders of any Governmental Authority, and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor
any of its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other regulatory
scheme limiting its ability to incur debt.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and each
other Person for whose taxes the Borrower or any Subsidiary could become liable
have timely filed or caused to be filed all Federal income tax returns and all
other material tax returns that are required to be filed by them, and have paid
all taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii)
where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves in accordance with GAAP. As of the
Closing Date, the charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of such taxes are adequate, and no tax
liabilities that could be materially in excess of the amount so provided are
anticipated.
SECTION 4.9. ARGIN REGULATIONS. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$7,500,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $7,500,000 the fair market value of the assets of
all such underfunded Plans.
42
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good title to,
or valid leasehold interests in, all of its real and personal property material
to the operation of its business, free and clear of any Liens except Permitted
Encumbrances.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks, service
marks, tradenames, copyrights, franchises, licenses, and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person, except for any
such infringements that, individually or in the aggregate, would not have a
Material Adverse Effect.
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, taken as a
whole, in light of the circumstances under which they were made, not misleading;
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or
other material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of organization of,
and the type of, each Subsidiary, as of the Closing Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of and interest on any Loan or any fee or
any LC Disbursement remains unpaid or any Letter of Credit remains outstanding:
43
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a copy of the annual audited report for such Fiscal
Year for the Borrower and its Subsidiaries, containing a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and the related consolidated and consolidating statements of
income, stockholders' equity and cash flows (together with all footnotes
thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting
forth in the case of the consolidated statements in comparative form the figures
for the previous Fiscal Year, all in reasonable detail and reported on by Ernst
& Young LLP or other independent public accountants of nationally recognized
standing (without a "going concern" or like qualification, exception or
explanation and without any qualification or exception as to scope of such
audit) to the effect that such financial statements present fairly in all
material respects the financial condition and the results of operations of the
Borrower and its Subsidiaries for such Fiscal Year on a consolidated and
consolidating basis in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters, an unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal
Quarter and the related unaudited consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then
elapsed portion of such Fiscal Year, setting forth in each case in comparative
form the figures for the corresponding quarter and the corresponding portion of
Borrower's previous Fiscal Year, all certified by the chief financial officer or
treasurer of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of the chief financial
officer or treasurer of the Borrower, (i) certifying as to whether there exists
a Default or Event of Default on the date of such certificate, and if a Default
or an Event of Default then exists, specifying the details thereof and the
action which the Borrower has taken or proposes to take with respect thereto,
(ii) setting forth in reasonable detail calculations demonstrating compliance
with Article VI and (iii) stating whether any change in GAAP or the application
thereof has occurred since the date of the Borrower's audited financial
statements referred to in Section 4.4 and, if any change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines); provided that such accounting firm
shall not
44
be liable to any Person if it did not obtain such knowledge which would not be
disclosed in the course of an audit conducted under GAAP;
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed with
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or, to the
knowledge of the Borrower, affecting the Borrower or any Subsidiary which, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development by which
the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to any
Environmental Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for any
Environmental Liability and in each of the preceding clauses, which individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $7,500,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective material rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business and will continue to engage in the same business as
presently conducted
45
or such other businesses that are reasonably related thereto; provided, that
nothing in this Section shall prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and requirements of any Governmental Authority applicable to its business and
properties, including without limitation, all Environmental Laws, ERISA and
OSHA, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge at or before maturity, all
of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will, and
will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, at the Administrative Agent's
or Lenders' expense if no Event of Default has occurred and is continuing and
otherwise at the expense of the Borrower, all at such reasonable times and as
often as the Administrative Agent or any Lender may reasonably request after
reasonable prior notice to the Borrower; provided, however, if an Event of
Default has occurred and is continuing, no prior notice shall be required.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, except where the failure to do so,
either individually or it the aggregate, could not reasonably be expected to
result in a Material Adverse Effect and (b) maintain with financially sound and
reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or
similar businesses operating in the same or similar locations.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrower
will use the proceeds of all Loans to refinance Indebtedness under the Existing
Credit Agreement on the
46
Closing Date and thereafter to finance working capital needs, capital
expenditures and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that would violate any rule or regulation of the
Board of Governors of the Federal Reserve System, including Regulations T, U or
X. All Letters of Credit will be used for general corporate purposes.
SECTION 5.10. ADDITIONAL SUBSIDIARIES. If any additional Subsidiary
is acquired or formed after the Closing Date, the Borrower will, within ten (10)
business days after such Subsidiary is acquired or formed, notify the
Administrative Agent and the Lenders thereof and will cause such Subsidiary to
become a Guarantor by joining the Guaranty Agreement and the Indemnity and
Contribution Agreement pursuant to joinder agreements in form and substance
satisfactory to the Administrative Agent and the Required Lenders and will cause
such Subsidiary to deliver simultaneously therewith similar documents applicable
to such Subsidiary required under Section 3.1 as reasonably requested by the
Administrative Agent.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
SECTION 6.1. FIXED CHARGE COVERAGE RATIO. The Borrower and its
Subsidiaries shall maintain on a consolidated basis, as of the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2002, a
Fixed Charge Coverage Ratio of not less than 1.50:1.00.
SECTION 6.2. TOTAL ADJUSTED DEBT TO TOTAL CAPITAL. The Borrower
and its Subsidiaries shall maintain on a consolidated basis, as of the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2002, a
ratio of Consolidated Total Adjusted Debt to Consolidated Total Capital of not
more than 0.65:1.0.
SECTION 6.3. ASSET COVERAGE RATIO The Borrower and its
Subsidiaries shall maintain on a consolidated basis, as of the end of each
Fiscal Quarter, commencing with the Fiscal Quarter ending March 31, 2002, an
Asset Coverage Ratio of not less than 1.2:1.0.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or the principal of or interest on any Loan remains unpaid
or any fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
SECTION 7.1. INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
47
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior
to giving effect to such extension, renewal or replacement) or shorten the
maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof; provided, that such Indebtedness
is incurred prior to or within 90 days after such acquisition or the completion
of such construction or improvements or extensions, renewals, and replacements
of any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;
provided further, that the aggregate principal amount of such Indebtedness does
not exceed $25,000,000 at any time outstanding;
(d) Indebtedness of the Borrower owing to any Subsidiary and of
any Subsidiary owing to the Borrower or any other Subsidiary;
(e) Guarantees by the Borrower of Indebtedness of any Subsidiary
permitted hereunder and by any Subsidiary of Indebtedness of the Borrower or any
other Subsidiary permitted hereunder;
(f) Indebtedness of the Borrower arising under the 364-Day Credit
Agreement and Guarantees by Subsidiaries of Borrower of such Indebtedness;
(g) Indebtedness of Credit Services arising under the Credit
Services Credit Agreement and Guarantees by Borrower and its other Subsidiaries
of such Indebtedness;
(h) Hedging Obligations permitted by Section 7.10;
(i) Indebtedness of the Borrower and its Subsidiaries arising
under Receivables Financings, provided, that at the time any such Receivables
Financing is entered into, (x) no Default or Event of Default has occurred and
is continuing, (y) after giving pro forma effect to such Receivables Financing,
the Borrower is in compliance with the financial covenants set forth in Article
VI and (z) the Borrower has delivered a certificate to the Lenders certifying
the conditions set forth in clauses (x) and (y) and setting forth in reasonable
detail calculations demonstrating pro forma compliance with the financial
covenants set forth in Article VI;
(j) Synthetic Lease Obligations incurred after the Closing Date;
provided that (i) at the time any such Synthetic Lease Obligation is incurred,
(x) no Default or Event of Default has occurred and is continuing, (y) after
giving pro forma effect to such Synthetic Lease Obligation, the Borrower is in
compliance with the financial covenants set forth in Article VI and (z) the
Borrower has delivered a certificate to the Lenders certifying the conditions
set forth in clauses (x) and (y) and setting forth in reasonable detail
calculations demonstrating pro forma
48
compliance with the financial covenants set forth in Article VI and (ii) the
aggregate amount of Synthetic Lease Obligations does not exceed $40,000,000 at
any one time;
(k) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof; provided, that any extensions,
renewals, and replacements of any such Indebtedness do not increase the
outstanding principal amount thereof (immediately prior to giving effect to such
extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof; provided further, that the aggregate principal amount of
such Indebtedness does not exceed $25,000,000 at any time outstanding; and
(l) other unsecured Indebtedness of the Borrower in an aggregate
principal amount not to exceed at any time 25% of Consolidated Net Worth as of
the last day of the immediately preceding Fiscal Year for which audited
financial statements have been delivered to the Lenders.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Liens created in favor of the Administrative Agent for the
benefit of the Lenders pursuant to the Loan Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
(d) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by Section 7.1(c),
(ii) such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of
any Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
that any such Lien was not created in the contemplation of any of the foregoing
and any such Lien secures only those obligations which it secures on the date
that such Person becomes a Subsidiary or the date of such merger or the date of
such acquisition;
49
(f) Liens incurred in connection with a Receivables Financing and
Synthetic Lease Obligations permitted under Section 7.1;
(g) Liens upon or in any fixed or capital assets to secure the
purchase price or the cost of construction or improvement of such fixed or
capital assets or to secure Indebtedness incurred solely for the purpose of
financing the acquisition, construction or improvement of such fixed or capital
assets (including Liens securing any Capital Lease Obligations); provided, that
(i) such Lien secures Indebtedness permitted by Section 7.1(k), (ii) such Lien
does not extend to any other asset, and (iii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such fixed or
capital assets; and
(h) extensions, renewals, or replacements of any Lien referred to
in paragraphs (a) through (f) of this Section; provided, that the principal
amount of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby.
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise dispose
of (in a single transaction or a series of transactions) all or substantially
all of its assets (in each case, whether now owned or hereafter acquired) or all
or substantially all of the stock of any of its Subsidiaries (in each case,
whether now owned or hereafter acquired) or liquidate or dissolve; provided,
that if at the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing (i) the
Borrower or any Subsidiary may merge with a Person if the Borrower (or such
Subsidiary if the Borrower is not a party to such merger) is the surviving
Person, (ii) any Subsidiary may merge into another Subsidiary so long as the
surviving Subsidiary is a Guarantor and (iii) any Subsidiary may sell, transfer,
lease or otherwise dispose of all or substantially all of its assets to the
Borrower or to a Guarantor; provided, that any such merger involving a Person
that is not a wholly-owned Subsidiary immediately prior to such merger shall not
be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
SECTION 7.4. INVESTMENTS, LOANS, ETC. The Borrower will not, and
will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any capital stock, evidence of Indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"INVESTMENTS"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
or create or form any Subsidiary, except:
50
(a) Investments existing on the date hereof and set forth on
Schedule 7.4 (excluding Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) Investments made by the Borrower in or to any Subsidiary and
by any Subsidiary to the Borrower or in or to another Subsidiary;
(e) loans or advances, or Guaranties of loans or advances, to
employees, officers or directors of the Borrower or any Subsidiary in the
ordinary course of business, including, without limitation, those for travel,
relocation and related expenses; provided, however, that the aggregate amount of
all such loans, advances and Guaranties does not exceed $1,000,000 at any time;
(f) Asset Like Kind Exchanges permitted by Section 7.6;
(g) Hedging Obligations permitted by Section 7.10;
(h) creation of Subsidiaries to the extent that the Borrower is in
compliance with Section 5.10;
(i) Investments made pursuant to the Deferred Compensation Plan;
and
(j) other Investments that in the aggregate do not exceed
$10,000,000 in any Fiscal Year.
SECTION 7.5. RESTRICTED PAYMENTS. The Borrower will not, and will
not permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend or distribution on any class of its stock,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of capital stock or Indebtedness subordinated to the
Obligations of the Borrower or any options, warrants, or other rights to
purchase such capital stock or such Indebtedness, whether now or hereafter
outstanding (each, a "RESTRICTED PAYMENT"), except for (i) dividends and
distributions payable by the Borrower solely in shares of any class of its
common stock, (ii) Restricted Payments made by any Subsidiary to the Borrower or
to another Subsidiary and (iii) cash dividends paid on, and cash redemptions of,
the common stock of the Borrower so long as (x) no Default or Event of Default
has occurred and is continuing at the time such dividend is paid or redemption
is made, and (y) the aggregate amount of all such Restricted Payments made by
the Borrower in any Fiscal Year does not exceed 50% of Consolidated Net Income
(if greater than $0) earned during the immediately preceding fiscal year;
provided, further, that in the event that such Restricted Payments actually paid
in any Fiscal Year are less than the maximum amount permitted in such year, the
unused permitted amount for such Fiscal Year may be carried forward one (but
only one) Fiscal Year to the immediately following Fiscal Year.
51
SECTION 7.6. SALE OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's common stock to any Person other than the Borrower
or any wholly-owned Subsidiary of the Borrower (or to qualify directors if
required by applicable law), except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for operations
disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business;
(c) Permitted Receivables Sales under Receivables Financings
permitted under Section 7.1;
(d) the sale or other disposition for fair market value of the
distribution centers and other land held for development listed on Schedule 7.6;
(e) the sale of real estate in connection with any Asset
Like Kind Exchange; provided, that at the time any such Asset Like Kind Exchange
is entered into, (a) no Default or Event of Default has occurred and is
continuing, (b) after giving pro forma effect to such Asset Like Kind Exchange,
the Borrower is in compliance with the financial covenants set forth in Article
VI and (c) the Borrower has delivered a certificate to the Lenders certifying
the conditions set forth in clauses (a) and (b) and setting forth in reasonable
detail calculations demonstrating pro forma compliance with the financial
covenants set forth in Article VI;
(f) the sale of assets in Sale/Leaseback Transactions
permitted under Section 7.9; and
(g) the sale or other disposition of other assets in an
aggregate amount not to exceed 5% of the consolidated total assets of the
Borrower as of the last day of the immediately prior Fiscal Year;
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its wholly-owned Subsidiaries
not involving any other Affiliates and (c) any Restricted Payment permitted by
Section 7.5.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now
52
owned or hereafter acquired, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to its common stock, to make or
repay loans or advances to the Borrower or any other Subsidiary, to Guarantee
Indebtedness of the Borrower or any other Subsidiary or to transfer any of its
property or assets to the Borrower or any Subsidiary of the Borrower; provided,
that (i) the foregoing shall not apply to restrictions or conditions imposed by
law or by this Agreement, the 364-Day Credit Agreement, the Credit Services
Credit Agreement, the Prudential Agreement or Synthetic Leases existing on the
Closing Date or Synthetic Leases entered into thereafter with substantially
similar terms and, (ii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness and (iii) clause (a) shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof.
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrower will
not, and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred (each, a "Sale/Leaseback Transaction"), unless at the time
such Sale/Leaseback Transaction is entered into (a) no Default or Event of
Default has occurred and is continuing, (b) after giving pro forma effect to
such Sale/ Leaseback Transaction, the Borrower is in compliance with the
financial covenants set forth in Article VI and (c) the Borrower has delivered a
certificate to the Lenders certifying the conditions set forth in clauses (a)
and (b) and setting forth in reasonable detail calculations demonstrating pro
forma compliance with the financial covenants set forth in Article VI.
SECTION 7.10. HEDGING TRANSACTIONS. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiaries is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which the Borrower or any of its
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any capital stock or any Indebtedness or (ii)
as a result of changes in the market value of any capital stock or any
Indebtedness) is not a Hedging Obligations entered into in the ordinary course
of business to hedge or mitigate risks.
SECTION 7.11. AMENDMENT TO CHARTER DOCUMENTS. The Borrower will
not, and will not permit any Subsidiary to, amend, modify or waive any of its
rights in a manner materially adverse to the Lenders under its certificate of
incorporation, bylaws or other organizational documents.
SECTION 7.12. ACCOUNTING CHANGES. The Borrower will not, and will
not permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required or permitted by GAAP, or
change the Fiscal Year of the Borrower or of any Subsidiary, except to change
the fiscal year of a Subsidiary to conform its Fiscal Year to that of
53
the Borrower without the prior written consent of the Required Lenders, which
consent shall not be unreasonably withheld.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events
(each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any
Loan or of any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date thereof or
at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount payable under clause
(a) of this Section 8.1) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by
or on behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Schedules attached thereto)
and any amendments or modifications hereof or waivers hereunder, or in any
certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any representative of
any Loan Party pursuant to or in connection with this Agreement or any other
Loan Document shall prove to be incorrect in any material respect when made or
deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 5.1, 5.2, 5.3, 5.7, 5.9 or 5.10
(with respect to any Loan Party's existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those referred to
in clauses (a), (b) and (d) above) or any other Loan Document, and such failure
shall remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary
obligor or as guarantor or other surety) shall fail to pay any principal of or
premium or interest on any Material Indebtedness that is outstanding, when and
as the same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
54
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or any
substantial part of its assets, under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Subsidiary or for a substantial part of its
assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to
pay, shall admit in writing its inability to pay, or shall fail to pay, its
debts as they become due; or
(j) an ERISA Event shall have occurred that, in the
opinion of the Required Lenders, when taken together with other ERISA Events
that have occurred, could reasonably be expected to result in liability to the
Borrower and the Subsidiaries in an aggregate amount exceeding $7,500,000; or
(k) any judgment or order for the payment of money in
excess of $7,500,000 in the aggregate shall be rendered against the Borrower or
any Subsidiary, and either (i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order or (ii) there shall be a period of
30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could reasonably be expected to have
a Material Adverse Effect, and there shall be a period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist;
55
(n) any provision of any Guaranty Agreement shall for any
reason cease to be valid and binding on, or enforceable against, any Guarantor,
or any Guarantor shall so state in writing, or any Guarantor shall seek to
terminate its Guaranty Agreement;
(o) an Event of Default shall occur under any other Loan
Document; or
(p) an "Event of Default" shall occur under the Credit
Services Credit Agreement, the 364-Day Credit Agreement or the Prudential
Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder other than Hedging
Obligations, to be, whereupon the same shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (iii) demand that cash collateral be
deposited with the Administrative Agent pursuant to Section 2.23(g), without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iv) exercise all remedies contained in any other
Loan Document; and (v) exercise any other remedies available at law or in
equity; and that, if an Event of Default specified in either clause (g) or (h)
shall occur, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon, and all
fees, and all other Obligations other than Hedging Obligations shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder or
under the other Loan Documents by or through any one or more sub-agents or
attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent or attorney-in-fact and the Related Parties of the Administrative
Agent, any such sub-agent and any such attorney-in-fact and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
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(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Bank with
respect thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or any Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements, or other
terms and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article III or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent may consult with legal counsel (including counsel for
the Borrower) concerning all matters pertaining to such duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of
the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and
57
decision to enter into this Agreement. Each of the Lenders, the Swingline Lender
and the Issuing Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, continue to make its own
decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or Event
of Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of
58
the United States of America or any state thereof or a bank which maintains an
office in the United States, having a combined capital and surplus of at least
$500,000,000.
(b) Upon the acceptance of its appointment as the Administrative
Agent hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. If within 45 days after written notice is given of
the retiring Administrative Agent's resignation under this Section 9.7 no
successor Administrative Agent shall have been appointed and shall have accepted
such appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
SECTION 9.9. DOCUMENTATION AGENT AND SYNDICATION AGENT. Each
Lender hereby designates Wachovia Securities, Inc. as Syndication Agent and Bank
of America, N.A., as Documentation Agent and agrees that the Documentation Agent
and the Syndication Agent shall have no duties or obligations under any Loan
Documents to any Lender or any Loan Party.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
To the Borrower: Xxxxxxx Furniture Companies, Inc
000 Xxxxxxx Xxxxx Xx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopy Number: 000-000-0000
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To the Administrative Agent
or Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X.
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Telecopy Number: 000-000-0000
With a copy to: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. E./ 2nd
Floor
Atlanta, Georgia 30308
Attention: Xxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxxxxx
Telecopy Number: (000) 000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
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(a) No failure or delay by the Administrative Agent, the Issuing
Bank or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or
the other Loan Documents, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment or waiver shall:
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.21 (b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement, without the
written consent of each Lender; (vii) release all or substantially all
collateral (if any) securing any of the Obligations, without the written consent
of each Lender; provided further, that no such agreement shall amend, modify or
otherwise affect the rights, duties or obligations of the Administrative Agent,
the Swingline Bank or the Issuing Bank without the prior written consent of such
Person. Any consent of the Borrower otherwise required hereunder shall not be
required if an Event of Default has occurred and is continuing.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs
and expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and
61
disbursements of counsel for the Administrative Agent and its Affiliates, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and disbursements
of outside counsel and the allocated cost of inside counsel) incurred by the
Administrative Agent, the Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or
any Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
(each, an "INDEMNITEE") against, and hold each of them harmless from, any and
all costs, losses, liabilities, claims, damages and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, which may
be incurred by or asserted against any Indemnitee arising out of, in connection
with or as a result of (i) the execution or delivery of this Agreement or any
other agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of
any of the transactions contemplated hereby, (ii) any Loan or Letter of Credit
or any actual or proposed use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned by the Borrower
or any Subsidiary or any Environmental Liability related in any way to the
Borrower or any Subsidiary or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided, that the 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 as determined by a court of competent
jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative Agent and
each of the Lenders harmless from and against, any and all present and future
stamp, documentary, and other similar taxes with respect to this Agreement and
any other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay or
omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Issuing Bank or the
Swingline Lender under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be, such Lender's Pro Rata Share (determined as of the
time that the unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, that the unreimbursed expense or indemnified payment,
claim, damage, liability or
62
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity
as such.
(e) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to actual or direct damages) arising out of, in connection with or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the transactions contemplated therein, any Loan or any Letter of Credit or the
use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000, in the case of any assignment of a Revolving Loan,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consent (each such consent
not to be unreasonably withheld or delayed), (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among separate
Commitments on a non-pro rata basis, and (iii) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $1,000, and the
Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by
63
such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Bank or the Issuing Bank sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Swingline Bank, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent affecting
such Participant: (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for
the termination or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.21(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby , without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent
64
hereunder, without the consent of each Lender; (vi) release any guarantor or
limit the liability of any such guarantor under any guaranty agreement without
the written consent of each Lender except to the extent such release is
expressly provided under the terms of the Guaranty Agreement; or (vii) release
all or substantially all collateral (if any) securing any of the Obligations.
Subject to paragraph (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.18, 2.19, and 2.20
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.18 and Section 2.20 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.20
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.20(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be construed
in accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the non-exclusive jurisdiction of the United
States District Court of the Northern District of Georgia, and of any state
court of the State of Georgia located in Xxxxxx County and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Georgia state court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of
65
this Section and brought in any court referred to in paragraph (b) of this
Section. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1. Nothing
in this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
SECTION 10.8. SURVIVAL. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.19, 2.20, 2.21, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the
66
termination of this Agreement or any provision hereof. All representations and
warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the other Loan Documents, and the making of the
Loans and the issuance of the Letters of Credit.
SECTION 10.9. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.10. CONFIDENTIALITY. Each of the Administrative Agent,
the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in
writing as confidential and provided to it by the Borrower or any Subsidiary,
except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iii) to the extent requested by any regulatory agency or authority,
(iv) to the extent that such information becomes publicly available other than
as a result of a breach of this Section, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any
of the foregoing on a nonconfidential basis from a source other than the
Borrower, (v) in connection with the exercise of any remedy hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, and (ix) subject to provisions substantially similar to this
Section 10.10, to any actual or prospective assignee or Participant, or (vi)
with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
SECTION 10.11. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.12. WAIVER OF EFFECT OF CORPORATE SEAL. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix its corporate seal to this
67
Agreement or any other Loan Document pursuant to any requirement of law or
regulation, and waives any shortening of the statute of limitations that may
result from not affixing the corporate seal to this Agreement or such other Loan
Documents.
SECTION 10.13. WAIVER RIGHT OF SETOFF. The Administrative Agent, the
Swingline Lender, the Issuing Bank and each Lender hereby waives with respect to
the Obligations, any contractual or common law right of setoff against any
deposits of any Loan Party now or hereafter held by and other indebtedness or
property then or thereafter owing by such Lender or other holder to any Loan
Party.
(remainder of page left intentionally blank)
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their respective authorized officers as of the day
and year first above written.
XXXXXXX FURNITURE COMPANIES, INC.
By
----------------------------------
Name:
Title:
[SEAL]
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT, AS SWINGLINE LENDER, AS
ISSUING BANK, AND AS A LENDER
By
----------------------------------
Name:
Title:
Revolving Commitment: $9,600,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (3.5-YEAR)]
FIRST UNION NATIONAL BANK
By
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
Revolving Commitment: $8,000,000
WACHOVIA SECURITIES, INC.,
AS SYNDICATION AGENT
By
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (3.5-YEAR)]
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENT AND AS A LENDER
By
----------------------------------
Name:
Title:
Revolving Commitment: $8,000,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (3.5-YEAR)]
BRANCH BANKING & TRUST COMPANY
By
----------------------------------
Name:
Title:
Revolving Commitment: $6,400,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (3.5-YEAR)]
REGIONS BANK
By
----------------------------------
Name:
Title:
Revolving Commitment: $4,800,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (3.5-YEAR)]
US BANK NATIONAL ASSOCIATION
By
----------------------------------
Name:
Title:
Revolving Commitment: $3,200,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT (3.5-YEAR)]
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
------------------------------------------------------------------------------------------------
Pricing Fixed Charge Applicable Applicable Applicable
Level Coverage Margin for Margin for Percentage for
Ratio Eurodollar Base Rate Commitment Fee
Loans Loans
------------------------------------------------------------------------------------------------
I Less than 1.75% per 0.75% per 0.35% per
1.75:1.00 annum annum annum
------------------------------------------------------------------------------------------------
II Less than 1.50% per 0.50% per 0.30% per
2.00:1.00 but annum annum annum
greater or
equal to
1.75:1.00
------------------------------------------------------------------------------------------------
III Less than 1.375% per 0.375% per 0.25% per
2.25:1.00 but annum annum annum
greater than or
equal to
2.00:1.00
------------------------------------------------------------------------------------------------
IV Greater than 1.25% per 0.25% per 0.20% per
or equal to annum annum annum
2.25:1.00
------------------------------------------------------------------------------------------------
Schedule 7.4
