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EXHIBIT 10.10
AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
dated as of
JULY 27, 1999
among
THOMASTON ▇▇▇▇▇, INC.,
as Borrower,
THOMASTON ▇▇▇▇▇ FSC, INC.,
as Subsidiary Guarantor
BANK OF AMERICA, N.A.
SUNTRUST BANK, ATLANTA
AND WACHOVIA BANK, N.A.
as Lenders
SUNTRUST BANK, ATLANTA,
as Administrative Agent
and Syndication Agent,
WACHOVIA BANK, N.A.,
as Documentation Agent
and Collateral Agent
and
SUNTRUST EQUITABLE SECURITIES CORPORATION,
as Arranger and Lead Manager
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TABLE OF CONTENTS
CREDIT AGREEMENT
ARTICLE 1 DEFINITIONS........................................................................................2
SECTION 1.01. DEFINITIONS...............................................................................2
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS......................................................18
SECTION 1.03. REFERENCES...............................................................................19
SECTION 1.04. USE OF DEFINED TERMS.....................................................................19
SECTION 1.05. TERMINOLOGY..............................................................................19
ARTICLE 2 THE LOAN..........................................................................................20
SECTION 2.01. THE LOAN.................................................................................20
SECTION 2.02. NOTES....................................................................................20
SECTION 2.03. MATURITY OF LOANS........................................................................21
SECTION 2.04. INTEREST RATES...........................................................................21
SECTION 2.05. FEES.....................................................................................22
SECTION 2.06. OPTIONAL PREPAYMENTS.....................................................................22
SECTION 2.07. MANDATORY PREPAYMENTS....................................................................22
SECTION 2.08. GENERAL PROVISIONS AS TO PAYMENTS........................................................23
SECTION 2.09. SPECIAL PROVISIONS REGARDING FULL PREPAYMENT BEFORE DECEMBER 31, 1999....................25
SECTION 2.10. COMPUTATION OF INTEREST AND FEES.........................................................25
SECTION 2.11. ALL LOANS TO CONSTITUTE ONE OBLIGATION...................................................25
SECTION 2.12. SUBSIDIARY GUARANTY......................................................................25
ARTICLE 3 COLLATERAL........................................................................................28
SECTION 3.01. GRANT OF SECURITY INTEREST...............................................................28
SECTION 3.02. FURTHER ASSURANCES.......................................................................28
ARTICLE 4 REPRESENTATIONS AND WARRANTIES....................................................................29
SECTION 4.01. CORPORATE EXISTENCE AND POWER............................................................29
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION...............................29
SECTION 4.03. BINDING EFFECT...........................................................................30
SECTION 4.04. FINANCIAL INFORMATION....................................................................30
SECTION 4.05. NO LITIGATION............................................................................30
SECTION 4.06. COMPLIANCE WITH ERISA....................................................................30
SECTION 4.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES...................................................31
SECTION 4.08. FORCE MAJEURE............................................................................31
SECTION 4.09. INVESTMENT COMPANY ACT...................................................................31
SECTION 4.10. PUBLIC UTILITY HOLDING COMPANY ACT.......................................................31
SECTION 4.11. OWNERSHIP OF PROPERTY; LIENS.............................................................31
SECTION 4.12. NO DEFAULT...............................................................................31
SECTION 4.13. FULL DISCLOSURE..........................................................................32
SECTION 4.14. ENVIRONMENTAL MATTERS....................................................................32
SECTION 4.15. CAPITAL STOCK............................................................................32
SECTION 4.16. MARGIN STOCK.............................................................................32
SECTION 4.17. INSOLVENCY...............................................................................33
SECTION 4.18. INSURANCE................................................................................33
SECTION 4.19. POSSESSION OF PERMITS....................................................................33
SECTION 4.20. LABOR DISPUTES...........................................................................33
SECTION 4.21. SURETY OBLIGATIONS.......................................................................34
SECTION 4.22. RESTRICTIONS.............................................................................34
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SECTION 4.23. LEASES...................................................................................34
SECTION 4.24. TRADE RELATIONS..........................................................................34
SECTION 4.25. CAPITAL STRUCTURE........................................................................34
SECTION 4.26. Y2K PLAN.................................................................................34
SECTION 4.27. FEDERAL TAXPAYER IDENTIFICATION NUMBER...................................................35
SECTION 4.28. BONA FIDE ACCOUNTS.......................................................................35
SECTION 4.29. GOOD TITLE TO COLLATERAL.................................................................35
SECTION 4.30. RIGHT TO ASSIGN AND GRANT SECURITY INTEREST..............................................35
SECTION 4.31. TRADE STYLES.............................................................................35
SECTION 4.32. ACCOUNT DEBTOR CAPACITY AND SOLVENCY.....................................................35
SECTION 4.33. PROCEEDINGS WITH RESPECT TO ACCOUNTS.....................................................36
SECTION 4.34. LOCATION OF COLLATERAL...................................................................36
SECTION 4.35. MATERIAL CONTRACTS.......................................................................36
SECTION 4.36. SURVIVAL OF REPRESENTATIONS AND WARRANTIES...............................................36
ARTICLE 5 COVENANTS.........................................................................................36
SECTION 5.01. INFORMATION..............................................................................36
SECTION 5.02. INSPECTION OF PROPERTY, BOOKS AND RECORDS................................................39
SECTION 5.03. MAINTENANCE OF EXISTENCE AND MANAGEMENT..................................................40
SECTION 5.04. DISSOLUTION..............................................................................40
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS..............................................40
SECTION 5.06. USE OF PROCEEDS..........................................................................40
SECTION 5.07. COMPLIANCE WITH LAWS; PAYMENT OF TAXES...................................................40
SECTION 5.08. INSURANCE; NET CASUALTY/INSURANCE PROCEEDS...............................................41
SECTION 5.09. CHANGE IN FISCAL YEAR....................................................................41
SECTION 5.10. MAINTENANCE OF PROPERTY..................................................................41
SECTION 5.11. MATERIAL CONTRACTS.......................................................................42
SECTION 5.12. ENVIRONMENTAL MATTERS....................................................................42
SECTION 5.13. ENVIRONMENTAL RELEASE....................................................................42
SECTION 5.14. TRANSACTIONS WITH AFFILIATES.............................................................42
SECTION 5.15. NO OTHER SUBSIDIARIES....................................................................42
SECTION 5.16. RESTRICTED PAYMENTS......................................................................42
SECTION 5.17. INVESTMENTS..............................................................................43
SECTION 5.18. PERMITTED LIENS..........................................................................44
SECTION 5.19. RESTRICTIONS ON ABILITY OF BORROWER AND SUBSIDIARIES TO PAY DIVIDENDS....................44
SECTION 5.20. FINANCIAL COVENANTS......................................................................46
SECTION 5.21. CAPITAL EXPENDITURES.....................................................................47
SECTION 5.22. PERMITTED DEBT...........................................................................47
SECTION 5.23. LIMITATION ON ISSUANCE AND SALE OF CAPITAL STOCK OF SUBSIDIARIES.........................47
SECTION 5.24. CHANGE OF PRINCIPAL PLACE OF BUSINESS OR LOCATION OF COLLATERAL..........................47
SECTION 5.25. PHYSICAL INVENTORIES.....................................................................47
SECTION 5.26. INVENTORY RETURNS........................................................................47
SECTION 5.27. PRESERVATION OF INTANGIBLES COLLATERAL...................................................48
SECTION 5.28. RECORDS RESPECTING COLLATERAL............................................................48
SECTION 5.29. REPORTS RESPECTING COLLATERAL............................................................48
SECTION 5.30. COLLATERAL LOCATION WAIVERS..............................................................48
SECTION 5.31. APPRAISALS...............................................................................48
SECTION 5.32. PAYMENT OF TAXES ON AND USE OF COLLATERAL................................................48
SECTION 5.33. DISPOSITIONS OF CERTAIN COLLATERAL.......................................................48
SECTION 5.34. CHANGES TO TAXPAYER IDENTIFICATION NUMBER................................................48
SECTION 5.35. TAXES OWING WITH RESPECT TO ACCOUNTS.....................................................49
ARTICLE 6 DEFAULTS..........................................................................................49
SECTION 6.01. EVENTS OF DEFAULT........................................................................49
SECTION 6.02. NOTICE OF DEFAULT........................................................................52
SECTION 6.03. REMEDIES WITH RESPECT TO COLLATERAL......................................................52
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SECTION 6.04. POWER OF ATTORNEY........................................................................53
ARTICLE 7 THE AGENTS AND THE LENDERS........................................................................53
SECTION 7.01. APPOINTMENT; POWERS AND IMMUNITIES.......................................................55
SECTION 7.02. RELIANCE BY AGENTS.......................................................................55
SECTION 7.03. DEFAULTS.................................................................................55
SECTION 7.04. RIGHTS OF EACH AGENT AND ITS AFFILIATES AS A LENDER......................................55
SECTION 7.05. INDEMNIFICATION..........................................................................55
SECTION 7.06. PAYEE OF NOTE TREATED AS OWNER...........................................................56
SECTION 7.07. NONRELIANCE ON AGENTS OR OTHER LENDERS...................................................56
SECTION 7.08. FAILURE TO ACT...........................................................................56
SECTION 7.09. RESIGNATION OF AGENT.....................................................................57
SECTION 7.10. JOINDER OF LENDERS.......................................................................57
SECTION 7.11. AGREEMENTS REGARDING COLLATERAL..........................................................57
SECTION 7.12. AGENT FIELD AUDITS.......................................................................57
SECTION 7.13. DESIGNATION OF CO-COLLATERAL AGENT.......................................................58
SECTION 7.14. REPLACEMENT OF CERTAIN LENDERS...........................................................58
ARTICLE 8 CHANGE IN CIRCUMSTANCES; COMPENSATION.............................................................59
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR.................................59
SECTION 8.02. ILLEGALITY...............................................................................59
SECTION 8.03. INCREASED COST AND REDUCED RETURN........................................................60
ARTICLE 9 CONDITIONS TO MAKING OF THE LOAN..................................................................61
SECTION 9.01. CONDITIONS TO MAKING THE LOAN............................................................61
ARTICLE 10 MISCELLANEOUS..................................................................................62
SECTION 10.01. NOTICES..................................................................................62
SECTION 10.02. NO WAIVERS...............................................................................63
SECTION 10.03. EXPENSES; DOCUMENTARY TAXES..............................................................63
SECTION 10.04. INDEMNIFICATION..........................................................................63
SECTION 10.05. SETOFF; SHARING OF SETOFFS...............................................................64
SECTION 10.06. AMENDMENTS AND WAIVERS...................................................................65
SECTION 10.07. NO MARGIN STOCK COLLATERAL...............................................................66
SECTION 10.08. SUCCESSORS AND ASSIGNS...................................................................66
SECTION 10.09. CONFIDENTIALITY..........................................................................67
SECTION 10.10. REPRESENTATION BY LENDERS................................................................68
SECTION 10.11. OBLIGATIONS SEVERAL......................................................................68
SECTION 10.12. GEORGIA LAW..............................................................................68
SECTION 10.13. SEVERABILITY.............................................................................68
SECTION 10.14. INTEREST.................................................................................68
SECTION 10.15. INTERPRETATION...........................................................................69
SECTION 10.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION............................................69
SECTION 10.17. COUNTERPARTS.............................................................................70
SECTION 10.18. SOURCE OF FUNDS -- ERISA.................................................................70
SECTION 10.19. CREDIT INQUIRIES.........................................................................70
SECTION 10.20. CONSEQUENTIAL DAMAGES....................................................................70
SECTION 10.21. ENTIRE AGREEMENT.........................................................................70
SECTION 10.22. CONTINUING EFFECT........................................................................71
SECTION 10.23. INTERCREDITOR AGREEMENT..................................................................71
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EXHIBITS:
EXHIBIT A - Form of Note
EXHIBIT B - Form of Borrower's Counsel Opinion
EXHIBIT C - Form of Agents' Counsel Opinion
EXHIBIT D - Form of Assignment and Acceptance
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Closing Certificate
EXHIBIT G - Form of Officer's Certificate
EXHIBIT H - Form of Waiver and Agreement
EXHIBIT I - Form of Telephone Instruction Letter
EXHIBIT J - Form of Collateral Disclosure Certificate
EXHIBIT K - Form of Pledge Agreement
EXHIBIT L - Form of Warrantholders Rights Agreement
EXHIBIT M - Form of Warrant
SCHEDULES:
SCHEDULE 3.03 - Real Property Mortgages
SCHEDULE 4.01 - Corporate Authority
SCHEDULE 4.05 - Litigation
SCHEDULE 4.14 - Environmental Matters
SCHEDULE 4.20 - Labor Disputes
SCHEDULE 4.21 - Surety Obligations
SCHEDULE 4.22 - Restrictions
SCHEDULE 4.23 - Leases
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SCHEDULE 4.25 - Capital Structure
SCHEDULE 4.35 - Material Contracts
SCHEDULE 5.14 - Transactions With Affiliates
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AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
Preamble. THIS AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (hereinafter,
together with all schedules and exhibits hereto, and any supplements, additions,
modifications or amendments thereto made from time to time called this
"Agreement"), dated as of July 27, 1999 (the "Closing Date"), is made by and
among THOMASTON ▇▇▇▇▇, INC., a Georgia corporation (hereinafter, together with
its successors and permitted assigns called the "Borrower"); THOMASTON ▇▇▇▇▇
FSC, INC., a U.S. Virgin islands corporation (hereafter, together with its
successors and permitted assigns, called "FSC"); BANK OF AMERICA, N.A., F/K/A
NATIONSBANK, N.A., a national banking association (hereinafter, together with
its successors and permitted assigns, called "BOFA"; BOFA, together with
SunTrust and Wachovia, each as hereinafter defined, called collectively, the
"Lenders" and, individually, a "Lender"); SUNTRUST BANK, ATLANTA, a Georgia
banking corporation (hereinafter, together with its successors and permitted
assigns, called "SunTrust"), individually and as "Administrative Agent" and
"Syndication Agent" (as those terms are hereinafter defined), on behalf of the
Lenders; WACHOVIA BANK, N.A., a national banking association (hereinafter,
together with its successors and permitted assigns, called "Wachovia"), as
"Documentation Agent" and "Collateral Agent" (as those terms are hereinafter
defined), on behalf of the Lenders; and SUNTRUST EQUITABLE SECURITIES
CORPORATION, a Tennessee corporation (hereinafter, together with its successors
and permitted assigns called "SunTrust Equitable Securities"), as "Arranger" and
"Lead Manager" (as those terms are hereinafter defined), on behalf of the
Lenders (all of the foregoing Persons herein sometimes collectively called the
"Parties" or, individually, a "Party").
The Parties are parties to a certain Credit and Security
Agreement, dated as of August 19, 1998 (which, as amended or modified to the
Closing Date is called herein the "Prior Loan Agreement"), pursuant to which the
Lenders agreed to extend loans and other financial accommodations to the
Borrower. In conjunction with a substantial and permanent repayment and/or
termination of such loans and other financial accommodations made this date, the
Parties have agreed to amend and restate the Prior Loan Agreement with this
Agreement pursuant to which the remainder of the loans and other financial
accommodations made pursuant to the Prior Loan Agreement will be refinanced,
continued and extended.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the parties hereto, each intending to be legally bound, hereby
agree as follows:
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this
SECTION 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided), have the meanings set forth
herein:
"Accounts Receivable Collateral" means and includes all
accounts, instruments, and chattel paper, including, without limitation, all
rights of an Obligor to payment for goods sold or leased, or to be sold or to be
leased, or for services rendered or to be rendered, howsoever evidenced or
incurred, and together with all returned or repossessed goods and all books,
records, computer tapes, programs and ledger books arising therefrom or relating
thereto, all whether now owned or hereafter acquired or arising.
"Account Debtor" means the Person who is obligated on any of
the Accounts Receivable Collateral or otherwise is obligated as a purchaser or
lessee of any of the Inventory Collateral.
"Additional Real Property" means any real property acquired by
any Obligor subsequent to the Closing Date either in fee simple or pursuant to a
Long-Term Lease.
"Adjusted London Interbank Offered Rate," applicable to any
Interest Period, means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00,
minus the Euro-Dollar Reserve Percentage.
"Administrative Agent" means SunTrust, acting in such capacity
hereunder.
"Affected Lender" has the meaning set forth in SECTION 7.14.
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary of the relevant Person) of which the relevant Person owns,
directly or indirectly, five percent (5%) or more of the common stock or
equivalent equity interests. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Collateral Agent, the Lead
Manager and the Arranger. "Agent" shall refer, individually, thereto.
"Agents' Letter Agreements" means, individually and
collectively, that certain letter agreement (or each such letter agreement, if
there is more than one), dated as of the Closing Date, between the Borrower and
the Agents (or an Agent) relating to the structure of the
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credit facilities provided for under this Agreement, and certain fees from time
to time payable by the Borrower to the Agents (or such Agent), together with all
amendments and supplements thereto.
"Aggregate Real Properties" has the meaning given to such term
in SECTION 4.14.
"Agreement" has the meaning given to such term in the Preamble
to this Agreement.
"Applicable Margin" means: (i) three and one-half of one
percent (3.50%) per annum, to the extent that the Loan is at the relevant time a
Euro-Dollar Loan; and (ii) one and one-half of one percent (1.50%) per annum, to
the extent that the Loan is at the relevant time a Base Rate Loan.
"Arranger" means SunTrust Equitable Securities, acting in such
capacity hereunder.
"Assignee" has the meaning set forth in SECTION 10.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with SECTION 10.08(c) in the form attached hereto as
EXHIBIT D.
"Assumed Rate" means the lesser of: (i) the Fixed Rate or (ii)
the Variable Rate.
"Authority" has the meaning set forth in SECTION 8.02.
"Balance Due" means the principal balance of the "Obligations"
(as that term is defined in the Prior Loan Agreement) owing to the Parties
(other than Borrower and FSC) after application thereto of the proceeds of the
initial advance made to Borrower by the Replacement Lenders under the
Replacement Loan Contract.
"Balances Collateral" means all property of each Obligor left
with any Agent or any Lender or in the possession, custody or control now or
hereafter of any Agent or any Lender, all deposit accounts of each Obligor now
or hereafter opened with any Agent or any Lender, all certificates of deposit
issued by any Agent or any Lender to an Obligor, and all drafts, checks and
other items deposited in or with any Agent or any Lender by any Obligor for
collection now or hereafter, including, without limitation, all such items
described in SECTION 10.05.
"Bankruptcy Code" means Title 11 of the United States Code, as
it may be amended from time to time.
"Bankruptcy Default" has the meaning set forth in SECTION
6.01.
"Base Rate" means for any day, the rate per annum equal to the
higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent
(1/2%) above the Federal Funds Rate. For purposes of determining the Base Rate
for any day, changes in the Prime Rate or the Federal Funds Rate shall be
effective on the date of each such change.
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"Base Rate Loan" means the Loan, to the extent that, pursuant
to Article 8, the interest rate payable thereon is determined by reference to
the Base Rate plus the Applicable Margin.
"BOFA" shall have the meaning given to such term in the
Preamble to this Agreement.
"Borrower" has the meaning given to such term in the Preamble
to this Agreement.
"Business Plan" has the meaning given to such term in Section
5.01(o).
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"Capitalized Interest Component" has the meaning given to such
term in SECTION 2.04.
"Casualty" means any act or occurrence of any kind or nature
that results in damage, loss or destruction to any Collateral.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Certified Public Accountants" means the Borrower's certified
public accountants as of the Closing Date or such other firm of nationally
recognized independent certified public accountants which may be retained by the
Borrower hereafter for the purpose of auditing its financial statements.
"Change of Control" shall be deemed to have occurred at such
time as (a) a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) (other than the ▇▇▇▇▇▇▇▇▇
Family, Mt. ▇▇▇▇▇▇ ▇▇▇▇▇ or any Person acquiring ownership of Borrower under the
Warrants) becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934), directly or indirectly, of more than thirty
percent (30%) of the total voting power of all classes of stock then outstanding
of Borrower entitled to vote in the election of directors, or (b) the ▇▇▇▇▇▇▇▇▇
Family ceases to own or control at least twenty-five percent (25%) of the total
voting power of all classes of stock then outstanding of Borrower entitled to
vote in the election of directors, or (c) without double counting, the officers
and directors of Borrower as of the Closing Date, together with the ▇▇▇▇▇▇▇▇▇
Family, cease to own or control at least a majority of the total voting power of
all classes of stock then outstanding of Borrower entitled to vote in the
election of directors.
"Change of Law" has the meaning set forth in SECTION 8.02.
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"Closing Certificate" has the meaning set forth in SECTION
9.01(e).
"Closing Date" has the meaning given to such term in the
Preamble to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor federal tax code.
"Collateral" means, collectively, (i) the assets and
properties of the Obligors in which the existing security interest granted to
the Collateral Agent, for the benefit of the Lenders, in the Collateral pursuant
to SECTION 3.01 of the Prior Loan Agreement is restated and continued in favor
of the Collateral Agent, for the benefit of the Lenders, pursuant to SECTION
3.01, (ii) the Pledged Stock continued to be pledged to the Collateral Agent
pursuant to the Pledge Agreement, and (iii) all Real Property Collateral
continued to be pledged to the Collateral Agent pursuant to the Mortgages.
"Collateral Agent" means Wachovia, acting in such capacity
hereunder.
"Collateral Disclosure Certificate" means the Collateral
Disclosure Certificate, dated as of the Closing Date, substantially in the form
of EXHIBIT J, executed by the Borrower on behalf of each Obligor and containing
disclosure of information pertaining to the Collateral.
"Collateral Locations" means the respective chief executive
office of the Borrower and each other Obligor and those additional locations, if
any, of the Borrower and each other Obligor set forth and described in the
Collateral Disclosure Certificate.
"Compliance Certificate" has the meaning set forth in SECTION
5.01(c).
"Condemnation" means any taking of title, of use, or of any
other property interest under the exercise of the power of eminent domain,
whether temporarily or permanently, by any governmental authority or by any
Person acting under governmental authority.
"Condemnation Awards" means any and all judgments, awards of
damages (including, but not limited to, severance and consequential damages),
payments, proceeds, settlements, amounts paid for a taking in lieu of
Condemnation, or other compensation heretofore or hereafter made, including
interest thereon, and the right to receive the same, as a result of, or in
connection with, any Condemnation or threatened Condemnation.
"Consolidated Subsidiary" means, at any date, any Subsidiary
or other entity the accounts of which, in accordance with GAAP, should be
consolidated with those of the Borrower in its consolidated financial statements
as of such date.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under section 414 of the Code.
"Credit Documents" means this Agreement, the Notes, the
Security Documents, the Collateral Disclosure Certificate, the Warrants, the
Warrantholders Rights Agreement, any
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other certificate agreement, document or instrument evidencing, relating to or
securing the Obligations, and any other agreement, document or instrument
delivered from time to time in connection with this Agreement, the Notes, the
Security Documents or the Obligations, as such agreements, documents and
instruments may be amended or supplemented from time to time.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all payment
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable and
accrued expenses arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases or leases for which
such Person retains tax ownership of the property subject to a lease, (v) all
obligations of such Person to reimburse any bank or other Person in respect of
amounts payable under a banker's acceptance, (vi) all Redeemable Preferred Stock
of such Person (in the event such Person is a corporation), (vii) all
obligations of such Person to reimburse any bank or other Person in respect of
amounts paid or undrawn amounts available to be paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (ix) all
obligations of such Person with respect to interest rate protection agreements,
foreign currency exchange agreements or other hedging arrangements, other than
commodity hedging agreements entered into by such Person as risk protection
rather than as an investment (each valued as the termination value thereof
computed in accordance with a method approved by the International Swap Dealers
Association and agreed to by such Person in the applicable agreement, if any),
and (x) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan or other
Obligation, on any day, the highest among the following: (i) the Fixed Rate plus
three percent (3%) per annum; or (ii) the Variable Rate plus the Applicable
Margin plus three percent (3%) per annum; and (iii) the Base Rate plus the
Applicable Margin plus three percent (3%) per annum.
"Documentation Agent" means Wachovia, acting in such capacity
hereunder.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in the State of Georgia are
authorized by law to close.
"Early Payment Alternatives" means such alternatives effecting
payment and discharge of all Obligations as soon as practicable after the
Closing Date as shall be offered to Borrower, or which Borrower shall pursue (or
continue pursuing), as of and subsequent to the Closing Date, including, without
limitation, by way of the investment of additional equity in Borrower, the sale
of assets, any merger, consolidation or acquisition, the refinancing of the
Obligations, or any combination of the foregoing.
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"EBITDA" means, for any period, the net income (or net loss)
of Borrower, for such period as determined in accordance with GAAP, (a) plus, to
the extent reflected in the changes in the statement of net income for such
period, the sum of, without duplication, the following for Borrower (i) interest
expense, (ii) taxes actually paid, (iii) depreciation and amortization expense,
(iv) extraordinary losses, (v) non-cash adjustments for original issue discount,
and (vi) the non-cash adjustments approved by the Lender from time to time, and
(b) minus, to the extent reflected in the changes in the statement of net income
for such period, extraordinary gains of Borrower.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged noncompliance
with or liability under any Environmental Requirement, including without
limitation any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation of
any Environmental Requirement or any investigations concerning any violation of
any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower or
any Subsidiary or the Aggregate Real Properties, including but not limited to
any such requirement under CERCLA or similar state legislation and all federal,
state and local laws, ordinances, regulations, orders, writs, decrees and common
law.
"Equipment Collateral" means all equipment and fixtures of
each Obligor, whether now owned or hereafter acquired, wherever located,
including, without limitation, all machinery, furniture, furnishings, leasehold
improvements, computer equipment, books and
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records, motor vehicles, forklifts, rolling stock, dies and tools used or useful
in each Obligor's business operations, excluding, however, any Excluded
Equipment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means the Loan, to the extent that the
interest rate payable thereon is determined by reference to the London Interbank
Offered Rate pursuant to Article 2.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on the Euro-Dollar Loan is determined or
any category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
"Event of Default" has the meaning set forth in SECTION 6.01.
"Excluded Equipment" means (i) any equipment subject to a
Purchase Money Lien as to which the purchase money creditor holding such Lien
prohibits other Liens thereon without its prior consent, unless and until either
(A) such creditor grants such consent or (B) the Debt secured by such Lien has
been fully paid and satisfied; and (ii) any equipment with respect to which the
rights of possession and use of an Obligor are created pursuant to a lease which
does not create a security interest, unless and until such time (if any) as such
Obligor acquires title to such equipment from the lessor or the lessor abandons
its rights and claims thereto.
"Existing Mortgages" means those Mortgages in existence on the
Closing Date made pursuant to the Prior Loan Agreement, as more particularly
described on SCHEDULE 3.03, being amended and restated pursuant hereto to
reflect the terms hereof pursuant to one or more Mortgages, each to be in
substantially the form of EXHIBIT N.
"Existing Real Property" means all real property owned by an
Obligor in fee simple or leased by an Obligor pursuant to a Long-Term Lease on
the Closing Date, as more particularly described on SCHEDULE 3.03.
"Executive Office" means the chief executive office address of
the Borrower and each other Obligor designated as such in the Collateral
Disclosure Certificate.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by
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federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Domestic Business Day next succeeding such day, provided,
however, that (i) if the day for which such rate is to be determined is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Domestic Business Day as so published on
the next succeeding Domestic Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to the Administrative Agent on such day on such transactions, as
determined in good faith by the Administrative Agent.
"Fees" means, collectively, all fees and charges (excluding
interest) payable to the Agents and the Lenders pursuant hereto, including,
particularly, those set forth and described in SECTION 2.05.
"Fiscal Month" means any fiscal month of the Borrower and its
Consolidated Subsidiaries.
"Fiscal Quarter" means any fiscal quarter of the Borrower and
its Consolidated Subsidiaries.
"Fiscal Year" means any fiscal year of the Borrower and its
Consolidated Subsidiaries.
"Fixed Rate" means a fixed simple interest rate per annum
equal to fifteen percent (15%) on the Closing Date, but increasing thereafter,
in monthly increments of one percent (1%) per annum, on the first calendar day
of each calendar month, beginning on September 1, 1999, up to a maximum fixed
simple interest rate per annum equal to twenty percent (20%), which shall become
effective on January 1, 2000, and remain effective as the "Fixed Rate" at all
times thereafter.
"FSC" has the meaning given to such term in the Preamble to
this Agreement.
"GAAP" means generally accepted accounting principles in the
United States of America applied on a basis consistent with those which, in
accordance with SECTION 1.02, are to be used in making the calculations for
purposes of determining compliance with the terms of this Agreement.
"Guarantee" or "Guaranty," by any Person, means any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to secure, purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the terms "Guarantee" and "Guaranty" shall not include
endorsements for collection or deposit in the ordinary course of
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business. The terms "Guarantee" or "Guaranty", used as a verb, shall have
corresponding meanings.
"Guaranteed Obligations" has the meaning given to such term in
SECTION 2.12(a).
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"▇▇▇▇▇▇▇▇▇ Family" means, collectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, any
family member of any of the foregoing, their heirs and estates, and any trust in
which any of the foregoing are the beneficiaries.
"Intangibles Collateral" shall mean all general intangibles of
each Obligor, whether now existing or hereafter acquired or arising, including,
without limitation, all copyrights, royalties, tax refunds, rights to tax
refunds, trademarks, trade names, service marks, patent and proprietary rights,
blueprints, drawings, designs, trade secrets, plans, diagrams, schematics and
assembly and display materials relating thereto, all customer lists, all books
and records and all computer software and programs, and all goodwill of each
Obligor associated therewith.
"Intangible Assets" means, with respect to any Person, that
portion of the book value of all of such Person's assets that would be treated
as intangibles under GAAP.
"Intercreditor Agreement" means the Intercreditor Agreement,
dated as of the Closing Date, among the Administrative Agent, the Collateral
Agent and the Replacement Lender Co-Agents; as it may be amended or modified
from time to time.
"Interest Period" means each monthly period, beginning on the
first calendar day of a calendar month and ending on the last calendar day of
such calendar month, except that (i) the initial Interest Period shall begin on
the Closing Date and end on July 31, 1999; and (ii) the Interest Period
containing the Termination Date shall end on the Termination Date.
"Inventory Collateral" means all inventory of each Obligor,
whether now owned or hereafter acquired, wherever located, including, without
limitation, all goods of each Obligor held for sale or lease or furnished or to
be furnished under contracts of service, all goods held for display or
demonstration, goods on lease or consignment, spare parts, repair parts,
returned and repossessed goods, all raw materials, work-in-process, finished
goods and supplies used or consumed in such Obligor's business, together with
all documents, documents of title, dock
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warrants, dock receipts, warehouse receipts, bills of lading or orders for the
delivery of all, or any portion, of the foregoing; provided, however, that
"Inventory Collateral" shall not include goods which are placed by the owner
thereof (other than another Obligor) on consignment with an Obligor in
compliance with Section 2-326 of the Uniform Commercial Code of the applicable
jurisdiction.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person
(including, without limitation, interest rate protection, foreign currency or
other hedging arrangements to be held by such Person as an investment), capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Joint Venture" means any Person which is primarily engaged in
some aspect of the business of the Borrower or any Consolidated Subsidiary, or
in which any Borrower has made an equity Investment: (i) which is not a
Subsidiary, and (ii) in which such Borrower owns twenty percent (20%) or more of
the beneficial interests therein.
"Lead Manager" means SunTrust Equitable Securities, acting in
such capacity hereunder.
"Lender" or "Lenders" has the meaning given to such term in
the Preamble to this Agreement.
"Lending Office" means, as to each Lender, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such
Lender may hereafter designate as its Lending Office by notice to the Borrower
and the Administrative Agent.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest, encumbrance, or servitude of any kind in respect of such
asset to secure or assure payment of a Debt or a Guarantee, whether by
consensual agreement or by operation of statute or other law, or by any
agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means the Loan, in the principal amount of Fifteen
Million Dollars ($15,000,000) made by the Lenders to the Borrower pursuant to
Section 2.01, representing the Balance Due being refinanced pursuant hereto.
"London Interbank Offered Rate," applicable to the Euro-Dollar
Loan means for the Interest Period of the Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of the Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rate appears on the Dow ▇▇▇▇▇
Telerate Service Page 3750 effective as of 11:00 A.M., London time, two (2)
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Euro-Dollar Business Days prior to the first day of such Interest Period,
provided that if no such offered rates appear on such page, the "London
Interbank Offered Rate" for such Interest Period will be the arithmetic average
(rounded upward, if necessary, to the next higher 1/100th of 1%) of rates quoted
by not less than two (2) major banks in New York City, selected by the
Administrative Agent, at approximately 10:00 A.M., New York City time, two (2)
Euro-Dollar Business Days prior to the first day of such Interest Period, for
deposits in Dollars offered by leading European banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of the
Euro-Dollar Loan.
"Long-Term Lease" means any lease of real property in which an
Obligor is tenant (or lessee) having a term (including extensions or renewal
terms exercisable at an Obligor's option) of five (5) years or more.
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination, or claim or contest by the Borrower demanding the same, in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly 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 upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower or any
Subsidiary, (b) the rights and remedies of the Agents or the Lenders under the
Credit Documents, the Collateral Agent's security interest and Lien against the
Collateral, or the ability of the Borrower, any Obligor or any other Person
obligated under a Guarantee of the Obligations to perform its obligations with
respect to the Obligations or under the Credit Documents to which it is a party
(including, without limitation, the repudiation, revocation or any attempt to do
the same by the Borrower or Person obligated under a Guarantee of the
Obligations), as applicable, or (c) the legality, validity or enforceability of
any Credit Document.
"Material Contract" means any contract, lease, instrument,
guaranty or license, or other arrangement (other than any of the Credit
Documents), whether written or oral, to which the Borrower or any of the
Subsidiaries is a party as to which the breach, nonperformance, cancellation or
failure to renew by any party thereto could have a Material Adverse Effect.
Without limitation, the Replacement Loan Contract shall constitute a Material
Contract.
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Mortgage" means each mortgage, deed of trust, deed to secure
debt or other instrument of similar effect pursuant to which, in accordance with
SECTION 3.03, an Obligor grants a Lien to Collateral Agent on the Closing Date
or subsequent thereto in any Real Property Collateral. The term "Mortgage"
includes, without limitation, all Existing Mortgages.
"Mortgage Documentation" means, collectively, the Mortgages
and all other documents, instruments and agreements executed and/or delivered in
connection therewith pursuant to SECTION 3.03.
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"Mt. ▇▇▇▇▇▇ ▇▇▇▇▇" means, collectively, Mount ▇▇▇▇▇▇ ▇▇▇▇▇,
Inc.; ▇.▇. ▇▇▇▇▇▇▇ Corporation; together with each "person" or "group" (within
the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934) that is the "beneficial owner" (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934), directly or indirectly, of more than ten
percent (10%) of the total voting power of all classes of stock then outstanding
thereof entitled to vote in the election of directors thereof.
"Multiemployer Plan" shall have the meaning set forth in
SECTION 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, in each case as set forth in a
statement in reasonable detail delivered by the Borrower to the Administrative
Agent:
(i) with respect to the disposition of assets by
the Borrower or any Subsidiary, the excess, if any, of (1) the
cash proceeds received in connection with such disposition
over (2) the sum of (A) the principal amount of any Debt
(other than the Obligations) which is secured by such asset
and which is required to be repaid in connection with the
disposition thereof, plus (B) the reasonable out-of-pocket
expenses incurred by the Borrower or such Subsidiary, as the
case may be, in connection with such disposition;
(ii) with respect to any cash proceeds received
by the Borrower or a Subsidiary in respect of the issuance of
any Capital Stock, all such cash proceeds, after deducting
therefrom all reasonable and customary costs and expenses
incurred by the Borrower or Subsidiary directly in connection
with the issuance of such Capital Stock or the incurrence of
such Debt for money borrowed.
"Net Casualty/Insurance Proceeds", when used with respect to
any Condemnation Awards or insurance proceeds allocable to the Collateral, means
the gross proceeds from any Casualty or Condemnation remaining after payment of
all expenses (including attorneys' fees) incurred in the collection of such
gross proceeds.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such period,
as determined in accordance with GAAP.
"Non-Conflicted Person" means, (i) so long as the Borrower is
a going concern, any Person other than a Person whose business interests are
primarily in the textile industry; and (ii) otherwise, any Person.
"Notes" means the promissory notes of the Borrower
substantially in the form of EXHIBIT A, evidencing the obligation of the
Borrower to repay to each Lender its Pro Rata Share of the Loan and accrued
interest thereon; together with all amendments, consolidations, modifications,
renewals and supplements thereto.
"Obligations" means all Debts, liabilities and obligations of
the Borrower and each Subsidiary Guarantor: (i) to the Agents or the Lenders,
incurred or arising from time to time under or pursuant to this Agreement and
each of the Credit Documents in respect of the Loan
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(including principal, interest, fees, costs and indemnification amounts) and any
and all extensions or renewals thereof in whole or in part; and (ii) to any
Lender or Affiliate thereof, incurred or arising under or in connection with any
banking or related transactions, services or functions performed for any Obligor
in connection with the conduct of such Obligor's business (including extensions
of credit giving rise to any Debt not related to this Agreement or any of the
Credit Documents, the incurrence of which is permitted hereunder or otherwise
consented to in writing by the Required Lenders).
"Obligors" means, collectively, the Borrower and each
Subsidiary Guarantor.
"Officer's Certificate" has the meaning set forth in SECTION
9.01(f).
"Participant" has the meaning set forth in SECTION 10.08(b).
"Pay Rate" means the lesser of: (i) the Variable Rate or (ii)
the Fixed Rate; provided, however, that from and after the occurrence of, and
during the continuation of, any Event of Default, the Pay Rate shall be the
Fixed Rate or, as applicable, pursuant to Section 2.04(c), the Default Rate.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means the Liens and encumbrances set
forth and described in SECTION 5.18.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an unincorporated association, a trust or any
other entity or organization, including, but not limited to, a government or
political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under SECTION 412 of the Code and is either (i) maintained by a member
of the Controlled Group for employees of any member of the Controlled Group or
(ii) maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five (5) plan years made
contributions.
"Pledge Agreement" means the Pledge Agreement, dated as of the
Closing Date, substantially in the form of EXHIBIT K, executed by the Borrower
in favor of the Collateral Agent.
"Pledged Stock" means the capital stock of each Subsidiary of
the Borrower described in and continued to be pledged pursuant to the Pledge
Agreement.
"Prior Loan Agreement" has the meaning given to such term in
the Preamble to this Agreement.
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"Prime Rate" refers to that interest rate so denominated and
set by the Administrative Agent from time to time as an interest rate basis for
borrowings. The Prime Rate is but one of several interest rate bases used by the
Administrative Agent. The Administrative Agent lends at interest rates above and
below the Prime Rate.
"Pro Rata Shares" means, (i) on the Closing Date, as to each
Lender, the percentage amount specified opposite such Lender's name on its
signature page to this Agreement; representing each Lender's pro rata share of
the Loan then outstanding; and (ii) subsequent to the Closing Date, such
percentage as shall represent each Lender's (including each Assignee's) pro rata
share of the Loan then outstanding, after giving effect to any assignments
thereof made in accordance with SECTION 10.08(c).
"Purchase Money Lien" means any Lien (including a negative
pledge arrangement) granted by the Borrower or any Subsidiary from time to time
to vendors or financiers of equipment to secure the payment of the purchase
price thereof so long as (i) such Liens extend only to the specific equipment so
purchased, (ii) secure only such deferred payment obligation and related
interest, fees and charges and no other Debt, and (iii) are promptly released
upon the payment in full of such purchase price and related interest, fees and
charges.
"Real Property Collateral" means all land, buildings,
structures, improvements, fixtures, timber, other natural resources and other
property, or interests in property of an Obligor in which a Lien is granted to
Collateral Agent at any time or from time to time as security for payment of the
Obligations pursuant to the Mortgages.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Termination Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Replacement Lender Co-Agents" means, collectively, Foothill
Capital Corporation and General Electric Capital Corporation.
"Replacement Lenders" means, collectively, Foothill Capital
Corporation, General Electric Capital Corporation and such other financial
institutions as, now or hereafter, are parties as lenders to the Replacement
Loan Contract.
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"Replacement Loan" means, collectively, all loans, advances
and other financial accommodations made (and to be made) to the Borrower by the
Replacement Lenders pursuant to the Replacement Loan Contract.
"Replacement Loan Contract" means the Loan and Security
Agreement, dated as of the Closing Date, by and among Borrower, FSC, the
Replacement Lenders and the Replacement Lender Co-Agents; as it may be amended
or modified from time to time; and together with any renewals, extensions or
refinancings thereof.
"Replacement Loan Documents" means the "Loan Documents," as
that term is defined in the Replacement Loan Contract.
"Replacement Loan Lien" means, collectively, all Liens granted
to the Replacement Lenders (or any agent(s) or a designee(s) on their behalf),
under or pursuant to any Replacement Loan Documents in any property of any
Obligor as security for the repayment of the Replacement Loan.
"Reported Net Income" means, for any period, the Net Income of
the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
"Required Lenders" means at any time Lenders having Pro Rata
Shares equaling at least fifty-one percent (51%) of the then outstanding
principal amount of the Loan; provided, however, that such calculation shall be
made without including the principal amount of any Note held by any Lender which
is in default with respect to any of its obligations to the Agents or any other
Lender.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except dividends
payable solely in shares of its Capital Stock), or (ii) any payment on account
of the purchase, redemption, retirement, defeasance, or other acquisition of or
sinking fund for (a) any shares of the Borrower's Capital Stock (except shares
acquired upon the conversion thereof into other shares of its Capital Stock), or
(b) any option, capital appreciation rights, stock appreciation rights, warrant
or other right to acquire shares of the Borrower's Capital Stock, or (iii) any
payment prior to the scheduled maturity of any Subordinated Debt or other Debt
(other than the Obligations) of any Obligor.
"Security Documents" means the Mortgages, Pledge Agreement and
the Waiver Agreements.
"Senior Officer" of the Borrower shall mean any of the
following, regardless of title, the chief executive officer, the chief operating
officer or the chief financial officer of the Borrower.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc.
"Subordinated Debt" means any Debt, which is unsecured, of the
Borrower or any Subsidiary to any Person which, by written agreement, has been
subordinated in right of payment and claim, to the rights and claims of the
Agents the Lenders in respect of the Obligations, on terms and conditions
reasonably satisfactory to the Required Lenders.
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"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Borrower.
"Subsidiary Guarantor" means FSC.
"SunTrust" has the meaning given to such term in the Preamble
to this Agreement.
"Syndication Agent" means SunTrust, acting in such capacity
hereunder.
"Tangible Net Worth" means, as of any date of determination,
the difference of (a) Borrower's total stockholder's equity, minus (b) the sum
of: (i) all Intangible Assets of Borrower, including net deferred taxes (ii) all
of Borrower's prepaid expenses, and (iii) all amounts due to Borrower from
Affiliates.
"Taxes" has the meaning set forth in SECTION 2.08(c).
"Termination Date" means, whichever is applicable, of (i) that
date which constitutes the fifth (5th) anniversary of the Closing Date; namely,
July 23, 2004; (ii) the date that full payment of the Obligations is accelerated
pursuant to SECTION 6.01 following the occurrence of an Event of Default.
"Third Party Claims" means claims of Third Parties against any
Obligor for rent, storage, maintenance, repair, processing, servicing or
bailment in respect of any Collateral or any property on which any Collateral is
or may be located.
"Third Parties" means landlords, warehousemen, servicers,
processors, bailees and other third parties which may, from time to time, be in
the possession or control of, any Collateral or any property on which any
Collateral is or may be located.
"Trade Styles" has the meaning set forth in SECTION 4.31.
"Transferee" has the meaning set forth in SECTION 10.08(d).
"UCC" shall mean the Uniform Commercial Code Secured
Transactions of Georgia (O.C.G.A. Art. 11-9), as in effect on the Closing Date.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Up-Front Fee" shall have the meaning given to such term in
SECTION 2.05(a).
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"Variable Rate" means the Adjusted London Interbank Offered
Rate plus the Applicable Margin; provided, however, that if, pursuant to Article
8, the Adjusted London Interbank Offered Rate is no longer an available interest
rate, then, the "Variable Rate" shall mean the Base Rate plus the Applicable
Margin.
"Wachovia" has the meaning given to such term in the Preamble
to this Agreement.
"Waiver Agreement" means a Waiver and Agreement substantially
in the form of EXHIBIT H, with any changes as may be acceptable to the
Collateral Agent, in its discretion, executed and delivered by a Third Party
waiving or subordinating all Third Party Claims, and making certain other
agreements in regard to the Collateral, all on terms satisfactory to the
Collateral Agent.
"Warrantholders Rights Agreement" means, collectively, the
Agreement, dated the Closing Date, made between Borrower and the Lender,
concerning issuance of the Warrants, in substantially the form of EXHIBIT L.
"Warrants" means, collectively, those warrants granted to each
of the Lenders by the Borrower on the Closing Date to acquire, without further
consideration payable, (i) ten percent (10%), in the aggregate, as to all
Lenders, of the Borrower's Class A non-voting Common Stock (on a fully diluted
basis), plus (ii) ten percent (10%), in the aggregate, as to all Lenders, of the
Borrower's Class B voting Common Stock (on a fully diluted basis), exercisable,
in each instance, at nominal cost, at each Lender's option, at any time after
December 31, 1999, but not later than December 31, 2004; in substantially the
form of EXHIBIT M.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
"Y2K Plan" has the meaning set forth in SECTION 4.26.
"Year 2000 Compliant and Ready" means that (A) the Borrower's
and its Subsidiaries' hardware and software systems with respect to the
operation of their business and their general business plan will: (i) handle
date information involving any and all dates before, during and/or after January
1, 2000, including accepting input, providing output and performing date
calculations in whole or in part; (ii) operate, accurately without interruption
on and in respect of any and all dates before, during and/or after January 1,
2000 and without any change in performance; (iii) store and provide date input
information without creating any ambiguity as to the century, and; (B) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (i) through (iii) in clause (A)
above.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's Certified Public Accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of
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the Borrower and the Subsidiaries delivered to the Lenders unless with respect
to any such change concurred in by the Borrower's Certified Public Accountants
or required by GAAP, in determining compliance with any of the provisions of
this Agreement or any of the other Credit Documents: (i) the Borrower shall have
objected to determining such compliance on such basis at the time of delivery of
such financial statements, or (ii) the Required Lenders shall so object in
writing within thirty (30) days after the delivery of such financial statements,
in either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under SECTION 5.01 hereof,
means the financial statements referred to in SECTION 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "articles", "exhibits", "schedules", "sections"
and other subdivisions are references to articles, exhibits, schedules, sections
and other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Credit Documents, unless otherwise defined therein or unless the context shall
require otherwise. The terms "accounts", "chattel paper", "instruments",
"general intangibles", "inventory", "documents" "equipment" and "fixtures", as
and when used herein and in the other Credit Documents, shall have the same
meanings given such terms under the UCC.
SECTION 1.05. Terminology. The terms "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular section, paragraph or subdivision. Any pronoun used
shall be deemed to cover all genders. 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 words "to" and "until" each means "to but excluding." Unless
and except to the extent otherwise expressly provided herein, the term "pro
rata" when applied to a Lender means that Lender's Pro Rata Share. The section
titles, table of contents and list of exhibits appear as a matter of convenience
only and shall not affect the interpretation of this Agreement. All references
to statutes and related regulations shall include any amendments of same and any
successor statutes and regulations. All references to any of the Credit
Documents shall include any and all amendment or modifications thereto and any
and all restatements, extensions or renewals thereof. All references to any
Person shall mean and include the successors and permitted assigns of such
Person. All references to "including" and "include" shall be understood to mean
"including, without limitation." All references to the time of day shall mean
the time of day on the day in question in Atlanta, Georgia, unless otherwise
expressly provided in this Agreement. A Default or an Event of Default shall be
deemed to exist at all times during the period commencing on the date that such
Default or Event of Default occurs to the date on which such Default or Event of
Default is waived in writing pursuant to this Agreement or, in the case of a
Default, is cured within any period of cure expressly provided in this
Agreement; and an Event of Default shall "continue" to be "continuing" until
such Event of Default has been waived in writing by the Required Lenders.
Whenever the phrase "to the best of the Borrower's knowledge" or words of
similar import relating to the knowledge or the awareness of the Borrower are
used herein, such phrase shall mean and refer to (i) the actual knowledge of a
Senior Officer of the Borrower or (ii) the knowledge that Senior Officer would
have obtained if he had engaged in a good faith and diligent performance of his
duties, including
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the making of such reasonable specific inquiries as may be necessary of the
other officers, employees or agents of the Borrower or any Subsidiary and a good
faith attempt to ascertain the existence or accuracy of the matter to which such
phrase relates. All calculations of money values shall be in Dollars, the Loan
made hereunder shall be deemed funded in Dollars, and all amounts payable in
respect of any of the Obligations shall be paid in Dollars. Any Lien referred to
in this Agreement or any of the other Credit Documents as having been created in
favor of the Collateral Agent, any agreement entered into by the Agent pursuant
to this Agreement or any of the other Credit Documents, any payment made by or
to or funds received by the Collateral Agent pursuant to or as contemplated by
any of the Credit Documents, or any other act taken or admitted to be taken by
the Collateral Agent shall, unless otherwise expressly provided, be created,
entered into, made or received or taken or omitted, for the benefit or account
of the Collateral Agent and the Lenders. Whenever any matter set forth herein or
in any Credit Document is to be consented to or be satisfactory to an Agent, a
Lender or the Required Lenders, or is to be determined, calculated or approved
by an Agent, a Lender or the Required Lenders, then, unless otherwise expressly
set forth herein or in any such Credit Document, such consent, satisfaction,
determination, calculation or approval shall be in its (or their) sole
discretion, exercised in good faith and, where required by law, in a
commercially reasonable manner, and shall be conclusive absent manifest error.
ARTICLE 2
THE LOAN
SECTION 2.01. The Loan. On the Closing Date, each Lender shall
make available to Borrower its Pro Rata Share of the Loan for the purpose of
repaying, by extension, renewal and refinancing pursuant hereto, the Balance
Due.
SECTION 2.02. Notes. (a) Each Lender's Pro Rata Share of the
Loan shall be evidenced by a single Note payable to the order of such Lender for
the account of its Lending Office in an amount equal to the original principal
amount of such Lender's Pro Rata Share of the Loan outstanding on the Closing
Date.
(b) Upon receipt of each Lender's Note pursuant to
SECTION 9.01, the Administrative Agent shall deliver such Note to such Lender.
Each Lender will record either on its own books and records or on Schedules
attached to its Note, at its option, and prior to any transfer of its Note will
transfer a copy of the relevant portions of its books and records or endorse on
such schedules attached to its Note appropriate notations to evidence; the date,
amount and maturity of, and effective interest rate for, each Loan made by it,
and the date and amount of each payment of principal made by the Borrower with
respect thereto. Such records, whether on the Lender's books and records or on
Schedules to the Note will constitute prima facie evidence, in the absence of
manifest error, of the respective principal amounts owing and unpaid on such
Lender's Note; provided that the failure of any Lender to make, or any error in
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making, any such recordation or endorsement shall not affect the obligation of
the Borrower hereunder or under the Note or the ability of any Lender to assign
its Note. Each Lender is hereby irrevocably authorized by the Borrower so to
endorse its Note, in the event such option is elected by such Lender, and to
attach to and make a part of its Note a continuation of any such Schedule as and
when required.
(c) The Administrative Agent shall maintain on its books
a control account for the Borrower in which shall be recorded (i) the date,
amount, effective interest rate and maturity of the Loan, (ii) the amount of any
principal, interest or fees due or to become due from the Borrower on the Loan
and (iii) the amount of any sum received by the Administrative Agent hereunder
in respect of any such principal, interest or fees due on the Loan and each
Lender's Pro Rata Share thereof.
(d) The entries made in the accounts pursuant to
paragraph (c) above shall be prima facie evidence, in the absence of manifest
error, of the existence and amounts of the Obligations of the Borrower therein
recorded and any payments thereon, and in case of discrepancy between such
accounts and the schedules to the Note maintained by any Lender pursuant to
paragraph (b) or between such accounts and the books and records of the
Borrower, in the absence of manifest error, the control account maintained by
the Administrative Agent pursuant to paragraph (c) above shall be controlling
with respect to the Loan.
SECTION 2.03. Maturity of Loans. The Loan will mature, and be
due and payable in full, on the Termination Date.
SECTION 2.04. Interest Rates. The Loan shall bear interest at
the Fixed Rate subject, however, to increase to the Default Rate pursuant to
Section 2.04(c) below; provided, however, that, notwithstanding the foregoing,
so long as no Event of Default has occurred and is then continuing, the amount
of accrued interest payable from month-to-month on the Loan shall be determined
by reference to the Pay Rate, and, to the extent that the amount of interest
accrued at the Fixed Rate in any Interest Period exceeds the amount of interest
paid at the Pay Rate for such Interest Period, then, effective at the end of
such Interest Period, the amount of such excess (herein, as it may increase from
time to time, called the "Capitalized Interest Component") shall be capitalized;
i.e., added to the then unpaid principal balance of the Loan, and be due and
payable in full on the Termination Date.
(a) Accrued interest on the Loan at the Pay Rate shall be
due and payable monthly in arrears, on the last day of each calendar month,
beginning on July 31, 1999, and continuing on a monthly basis thereafter until
the Loan is paid in full, and at maturity. Any overdue principal of and, to the
extent permitted by applicable law, overdue interest, shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(b) The Administrative Agent shall determine the interest
rate applicable to the Loan monthly on the first day of each Interest Period,
for such Interest Period, but, subject to subsection (c) below. The
Administrative Agent shall give prompt notice to the Borrower and the Lenders by
telecopier of each rate of interest so determined, and its determination thereof
shall be conclusive in the absence of manifest error.
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(c) After the occurrence and during the continuance of an
Event of Default, the principal amount of the Loan (and, to the extent permitted
by applicable law, all accrued interest thereon, accrued fees and other
Obligations then and thereafter due and payable) may, at the election of the
Required Lenders, bear interest at the Default Rate.
SECTION 2.05. Fees.
(a) Up-Front Fee. The Borrower shall pay to the
Administrative Agent, for the ratable account of each Lender, to be shared among
them based on their Pro Rata Shares, an up-front fee in an amount equal to three
percent (3%) of the Loan, which shall be payable on the Closing Date (the
"Up-Front Fee").
(b) Agents' Fees. The Borrower shall pay to each Agent,
for its account and sole benefit, such fees and other amounts at such times as
set forth in the Agents' Letter Agreements.
(c) Warrant Exercise Fees. The Parties have agreed that
the Warrants are being issued in consideration of the Lenders forgoing full
payment when due of the Obligations owing to the Lenders under the Prior Loan
Agreement, and that, accordingly, the issuance and exercise of the Warrants
shall be made without any necessity for payment of additional consideration by
any holder of the Warrants (except nominal consideration), the consideration
described above being deemed adequate and sufficient for all such purposes by
the Borrower. In order to facilitate the Parties' intent in respect thereof, if
it shall ever be determined that, notwithstanding the foregoing, any such
consideration (other than a nominal consideration) shall be payable to the
Borrower upon the exercise of any Warrants, then, there shall be due and owing
by Borrower to each Lender exercising a Warrant an exercise fee equal in amount
to the exercise price otherwise payable by such Lender to Borrower upon exercise
of such Warrant, which fee shall be set off against payment of such exercise
price when otherwise due and payable.
SECTION 2.06. Optional Prepayments. (a) Upon notice to the
Administrative Agent prior to 11:00 A.M. (Atlanta, Georgia, time) on the same
Domestic Business Day, the Borrower may prepay the Loan, in whole at any time,
or from time to time in part in amounts aggregating at least One Hundred
Thousand Dollars ($100,000), by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Pro Rata Shares of
each Lender in respect of the Loan.
(b) Upon receipt of a notice of prepayment pursuant to
this SECTION 2.06, the Administrative Agent shall promptly notify each Lender of
the contents thereof and of such Lender's ratable share of such prepayment,
based on its Pro Rate Share thereof, and such notice, once received by the
Administrative Agent, shall not thereafter be revocable by the Borrower.
SECTION 2.07. Mandatory Prepayments. Unless otherwise approved
by the Required Lenders, the Borrower shall pay to the Administrative Agent an
amount equal to one hundred percent (100%) of all Net Cash Proceeds from (i) the
disposition of any assets, other than Inventory Collateral and Equipment
Collateral which are permitted to be sold pursuant to
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SECTION 5.33, and (ii) the issuance of any Capital Stock (other than pursuant to
exercise of any Warrant). Such payment shall be accompanied by a detailed
calculation showing all deductions from gross proceeds in order to arrive at Net
Cash Proceeds. All such payments shall be applied to prepay ratably the Pro Rata
Shares of each Lender in respect of the Loan.
SECTION 2.08. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loan and of Fees hereunder, not later than 11:00 A.M.
(Atlanta, Georgia time) on the date when due, in federal or other funds
immediately available in Atlanta, Georgia, to the Administrative Agent at its
address referred to in SECTION 10.01. All payments received by the
Administrative Agent after 11:00 A.M. (Atlanta, Georgia time) on any Business
Day shall be deemed to be received on the following Business Day. The
Administrative Agent will promptly distribute to each Lender its Pro Rata Share
of each such payment received by the Administrative Agent for the account of the
Lenders.
(b) Whenever any payment of principal of, or interest on,
the Loan or of Fees hereunder shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day.
(c) All payments of principal, interest and fees and all
other amounts to be made by the Borrower pursuant to this Agreement with respect
to the Loan or any Fee relating thereto shall be paid without deduction for, and
free from, any tax, imposts, levies, duties, deductions, or withholdings of any
nature now or at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of each Lender,
taxes imposed on or measured by its net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Lender's applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, imposts, levies, duties, deductions or withholdings of
any nature being "Taxes"). In the event that the Borrower is required by
applicable law to make any such withholding or deduction of Taxes with respect
to the Loan or any Fee or other amount, the Borrower shall pay such deduction or
withholding to the applicable taxing authority, shall promptly furnish to any
Lender in respect of which such deduction or withholding is made all receipts
and other documents evidencing such payment and shall pay to such Lender
additional amounts as may be necessary in order that the amount received by such
Lender after the required withholding or other payment shall equal the amount
such Lender would have received had no such withholding or other payment been
made. If no withholding or deduction of Taxes are payable in respect to the Loan
or any Fee relating thereto, the Borrower shall furnish any Lender, at such
Lender's request, a certificate from each applicable taxing authority or an
opinion of counsel acceptable to such Lender, in either case stating that such
payments are exempt from or not subject to withholding or deduction of Taxes. If
the Borrower fail to provide such original or certified copy of a receipt
evidencing payment of Taxes or certificate(s) or opinion of counsel of
exemption, the Borrower hereby agrees to compensate such Lender for, and
indemnify it with respect to, the tax consequences of the Borrower's failure to
provide evidence of tax payments or tax exemption. Before making any claim
pursuant to this SECTION, such Lender shall designate a different Lending Office
if such designation will avoid
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the need for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
Each Lender which is not organized under the laws of the
United States or any state thereof agrees, as soon as practicable after receipt
by it of a request by the Borrower to do so, to file all appropriate forms and
take other appropriate action to obtain a certificate or other appropriate
document from the appropriate governmental authority in the jurisdiction
imposing the relevant Taxes, establishing that it is entitled to receive
payments of principal and interest under this Agreement and its Note without
deduction and free from withholding of any Taxes imposed by such jurisdiction;
provided that if it is unable, for any reason, to establish such exemption, or
to file such forms and, in any event, during such period of time as such request
for exemption is pending, the Borrower shall nonetheless remain obligated under
the terms of the immediately preceding paragraph.
In the event any Lender receives a refund of any Taxes paid by
the Borrower pursuant to this SECTION 2.08(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower and the
Lenders contained in this SECTION 2.08(c) shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment in
full or cancellation of the Notes.
(d) Unless and except to the extent otherwise expressly
provided in this Agreement, all monies to be applied to the Obligations, whether
such monies represent voluntary payments by the Borrower or are received
pursuant to acceleration of the Loan or realized from any disposition of
Collateral, shall be allocated among such of the Agents and the Lenders as are
entitled thereto (and, with respect to monies allocated to the Lenders, on a pro
rata basis based on the respective percentage which each Lender's portion of the
particular Obligation(s) in question bears to the whole of such Obligations
within each subclause, unless otherwise expressly provided herein) in the
following order (in each case, until all Obligations within each category
described below are fully paid): (i) first, to the Agents first, and then to the
Lenders, to pay the amount of any expenses that have not been reimbursed,
respectively, to the Agents, or the Lenders by the Borrower (or the other
Lenders, as applicable) in accordance with the terms of this Agreement, together
with any interest accrued thereon; (ii) next, to the Agents to pay any amounts
owed under indemnification obligations that have not been paid to the Agents by
the Lenders or the Borrower, together with interest accrued thereon; (iii) next,
to the Agents to pay any Fees then due and payable to the Agents for their own
accounts; (iv) next, to the Lenders for any amounts owed under indemnification
obligations that they have paid to the Agents and for any expenses that they
have reimbursed to the Agents; (v) next, to the Lenders, for accrued interest on
the Loan; (vi) to the principal amount of the Loan; and (vii) to any other
Obligations which then may be outstanding. The allocations set forth in this
SECTION 2.08(d) are solely to determine the rights and priorities of the Agents
and the Lenders as among themselves and may
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be changed by the Agents and the Lenders without notice to or the consent or
approval of the Borrower or any other Person.
SECTION 2.09. Special Provisions Regarding Full Prepayment
Before December 31, 1999. The Parties have entered into this Agreement on the
understanding that, consistent with the terms of the Prior Loan Agreement, the
Borrower will continue to pursue Early Payment Alternatives subsequent to the
Closing Date. In respect of the foregoing, as an incentive to the Borrower's
continued pursuit of Early Payment Alternatives, if the Borrower voluntarily
fully prepays and satisfies in full all Obligations by not later than December
31, 1999, excluding, however, for this purpose, any Capitalized Interest
Component, to the extent then accrued at interest rates in excess of fifteen
percent (15%) per annum (such portion of the Capitalized Interest Component
herein called the "Excess Capitalized Interest), the Lenders agree: (i) to
forgive payment of the Excess Capitalized Interest; and (ii) cancel and return
to the Borrower the Warrants for no additional consideration.
SECTION 2.10. Computation of Interest and Fees. Interest on
the Loan shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day), calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof. Fees payable hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.11. All Loans to Constitute One Obligation. The Loan
and all other Obligations at any time made pursuant hereto shall constitute one
general obligation of the Obligors, jointly and severally, and shall be secured
by the Liens on the Collateral in favor of the Collateral Agent; provided,
however, that each of the Agents and the Lenders shall be deemed to be a
creditor of each Obligor and the holder of a separate claim against each Obligor
to the extent of all Obligations owed by each Obligor to such Agent or Lender.
SECTION 2.12. Subsidiary Guaranty.
(a) The Guaranty: Each of the Subsidiary Guarantors
hereby jointly and severally guarantees to the Agents and the Lenders the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations of the Borrower (such Obligations herein called,
collectively, the "Guaranteed Obligations"), in each case strictly in accordance
with the terms thereof. Each of the Subsidiary Guarantors hereby further jointly
and severally agrees that if the Borrower shall fail to pay in full when due
(whether at stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, the Subsidiary Guarantors will promptly pay the same, without the
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
(b) Obligations Unconditional. The obligations of the
Subsidiary Guarantors hereunder are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the Obligations of the Borrower under this Agreement, the
Notes or any other Loan Document or any substitution, release or exchange of
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any other guarantee of or security for any of the Guaranteed Obligations, and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
SECTION that the obligations of the Subsidiary Guarantors hereunder shall be
absolute and unconditional, joint and several, under and all circumstances.
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of the Subsidiary Guarantors hereunder which shall remain absolute and
unconditional as described above.
(i) at any time or from time to time, without
notice to any of the Subsidiary Guarantors, the time for any
performance of or compliance with any of the Guaranteed
Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the
provisions of this Agreement or the Notes or any other
agreement or instrument referred to herein or therein shall be
done or omitted:
(iii) the maturity of any of the Guaranteed
Obligations shall be accelerated, or any of the Guaranteed
Obligations shall be modified, supplemented or amended in any
respect, or any right under this Agreement or the Notes or any
other Loan Document shall be waived or any other guarantee of
any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or
in favor of, the Collateral Agent as security for any of the
Obligations shall fail to be perfected.
The Subsidiary Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever; any requirement that any Agent
or Lender exhaust any right, power or remedy or proceed against the Borrower
under this Agreement or the Notes or any other Loan Document, or against any
other Person under any other Guaranty of, or security for, any of the Guaranteed
Obligations; any right arising pursuant to Official Code of Georgia Section
10-7-24 or any other similar or subsequent law; and any right to assert any of
the benefits under any statute providing appraisal or other, similar rights
which may reduce or prohibit any deficiency judgments or claims.
(c) Reinstatement. The obligations of the Subsidiary
Guarantors hereunder shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrower in respect to the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Subsidiary Guarantors jointly
and severally agree that they will indemnify each Agent and Lender on demand for
all reasonable costs and expenses (including, without limitation, fees of
counsel) incurred by such Agent and Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a
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preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
(d) Subrogation. Each Subsidiary Guarantor hereby waives
all rights of subrogation or contribution, whether arising by contract or
operation of law (including, without limitation, any such right arising under
the Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions hereof and further agrees with the Borrower for the benefit of each
of its creditors (including, without limitation, each Agent and Lender) that any
such payment by it shall constitute a contribution of capital by such Subsidiary
Guarantor to the Borrower (or an investment in the equity capital of the
Borrower by such Subsidiary Guarantor).
(e) Remedies. The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and the Agents and
the Lenders, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided herein (and shall be deemed to have become automatically due
and payable in the circumstances provided herein) for purposes hereof,
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower and that, in the event of such declaration (whether or not
due and payable by the Borrower) shall forthwith become due and payable by the
Subsidiary Guarantors for purposes hereof.
(f) Continuing Guaranty. The guaranty set forth herein is
a continuing guaranty, and shall apply to all Guaranteed Obligations, whenever
and howsoever arising.
(g) Rights of Contribution. The Subsidiary Guarantors
hereby agree, as between themselves, that if any Subsidiary Guarantor shall
become an "Excess Funding Guarantor" (as defined below) by reason of the payment
by Subsidiary Guarantor of any Guaranteed Obligations, each other Subsidiary
Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the
next sentence), pay to such Excess Funding Guarantor an amount equal to such
Subsidiary Guarantor's "Pro Rata Share" (as defined below and determined, for
this purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the "Excess Payment" (as defined below) in respect
of such Guaranteed Obligations. The payment obligation of a Subsidiary Guarantor
to any Excess Funding Guarantor under this Section shall be subordinate and
subject to right of payment to the prior payment in full of the obligations of
such Subsidiary Guarantor under the other provisions of this SECTION 2.12(g) and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all such
obligations. For purposes hereof, (i) "Excess Funding Guarantor" means, in
respect of any guaranteed Obligations, a Subsidiary Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations (iii) "Pro Rata Share" means, for any Subsidiary
Guarantor, the ratio (express as a percentage) of (x) the amount by which the
aggregate present fair saleable value of all Properties of such Subsidiary
Guarantor (excluding any shares of stock of any other Subsidiary Guarantor)
exceeds the amount of all the debts and liabilities of such Subsidiary Guarantor
(including contingent, subordinate, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any
obligations of any other Subsidiary Guarantor that have been Guaranteed by such
Subsidiary Guarantor) to (y) the
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amount by which the aggregate fair saleable value of all Properties of all of
the Subsidiary Guarantors exceeds the amount of all debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of the Subsidiary Guarantor hereunder) of the
Subsidiary Guarantors, determined (A) with respect to any Subsidiary Guarantor
that is a party hereto on the Closing Date, as of the Closing Date, and (B) with
respect to any other Subsidiary Guarantor, as of the date such Subsidiary
Guarantor becomes a Subsidiary Guarantor hereunder.
(h) General Limitation on Guaranteed Obligations. In any
action or proceeding involving any state corporate law, or any state or federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Subsidiary Guarantors hereunder
would otherwise, be held to determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability hereunder, then, notwithstanding any other provision hereof to the
contrary, the amount of such liability shall, without any further action by any
Subsidiary Guarantor, the Agents, the Lenders or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors a determined
in such action or proceeding.
ARTICLE 3
COLLATERAL
SECTION 3.01. Grant of Security Interest. As security for the
payment of all Obligations, each Obligor hereby restates, reconfirms and renews
its grant to the Collateral Agent, for the ratable benefit of the Agents and the
Lenders, a continuing, general Lien upon and security interest and security
title in and to the following described property of such Obligor, wherever
located, whether now existing or hereafter acquired or arising, namely: (a) the
Accounts Receivable Collateral; (b) the Inventory Collateral; (c) the Equipment
Collateral; (d) the Intangibles Collateral; (e) the Balances Collateral; and (f)
all products and/or proceeds of any and all of the foregoing, including, without
limitation, insurance proceeds.
SECTION 3.02. Further Assurances. Each Obligor shall duly
execute and/or deliver (or cause to be duly executed and/or delivered) to the
Collateral Agent any instrument, agreement, invoice, document, document of
title, dock warrant, dock receipt, warehouse receipt, ▇▇▇▇ of lading, order,
financing statement, assignment, waiver, consent or other writing which may be
reasonably necessary to the Collateral Agent to carry out the terms of this
Agreement and any of the other Credit Documents and to perfect its security
interest or intended security interest in and facilitate the collection of the
Collateral, the proceeds thereof, and any other property at any time
constituting security or intended to constitute security to the Collateral
Agent. The Borrower shall perform or cause to be performed such acts as the
Collateral Agent may request to establish and maintain for the Collateral Agent
a valid and perfected security interest in and security title to the Collateral,
free and clear of any Liens other than Permitted Encumbrances.
SECTION 3.03. Mortgages. On the Closing Date, as to all
Existing Real Property, and upon the acquisition thereof by any Obligor, as to
all Additional Real Property,
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Borrower shall (or shall each other Obligor to) deliver, or cause to be
delivered, to the Collateral Agent, in respect thereof, the following, all at
Borrower's expense, and in a form and substance acceptable to the Collateral
Agent: (i) a Mortgage, conveying to the Collateral Agent for the benefit of all
Agents and Lenders a first priority Lien on all such Real Property Collateral
associated therewith, free and clear of all other Liens and encumbrances
excepting only those which are approved in writing by the Collateral Agent; (ii)
a mortgagee's title insurance policy (or binder committing to issue same), in
customary ALTA form, from a title insurer selected by the Borrower, at its
expense, but acceptable to the Collateral Agent, insuring the Collateral Agent's
interest as mortgagee in such Real Property Collateral in an amount of coverage
acceptable to the Collateral Agent and containing only such exceptions and
limitations as such be acceptable to the Collateral Agent; (iii) a current,
as-built boundary line survey of such Real Property Collateral from a registered
land surveyor, selected by the Borrower, at its expense, but acceptable to the
Collateral Agent in customary ALTA form; (iv) as appropriate, a lessor's
acknowledgment and consent in respect of any Mortgaged Real Property which is
leased; (v) an environmental assessment of such Real Property Collateral from an
independent engineering firm acceptable to the Collateral Agent certifying as to
the Borrower's compliance with SECTION 4.14 in respect of such property; (vi) an
MAI appraisal of such Mortgaged Real Property, prepared by a independent
appraiser, selected by or acceptable to the Collateral Agent, using an appraisal
methodology approved by the Collateral Agent; and (vii) such other, similar or
related requirements as the Collateral Agent may require in connection with the
foregoing. In connection with the foregoing, it is understood and agreed by the
Lenders that if, by the Closing Date, Borrower has not then fully complied to
the Collateral Agent's satisfaction with any of the requirements set forth in
clauses (iii) through (vi) above, in respect of any Existing Real Property,
then, the Lenders may elect to waive such non-compliance, in their discretion,
in which case Borrower shall have an additional period, ending on September 30,
1999, within which to fully comply to the Collateral Agent's satisfaction with
such conditions before its failure to do so shall constitute an Event of
Default.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agents and the
Lenders that:
SECTION 4.01. Corporate Existence and Power. Each of the
Borrower and each Subsidiary is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation, is
duly qualified to transact business in every jurisdiction where, by the nature
of its business, such qualification is necessary (as set forth on SCHEDULE
4.01), and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except where any such failure to qualify or have all required
governmental licenses, authorizations, consents and approvals does not have and
would not reasonably be expected to cause a Material Adverse Effect and would
not impede any rights of the Collateral Agent with respect to the Collateral.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower and each
Subsidiary Guarantor of this
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Agreement, and by the Borrower and each Subsidiary Guarantor party thereto of
the other Credit Documents (i) are within the Borrower's and each such
Subsidiary's corporate powers, (ii) have been duly authorized by all necessary
corporate action on the part of the Borrower and such Subsidiary, and have been
executed on behalf of the Borrower and such Subsidiary by its respective duly
authorized officers, (iii) require no action by or in respect of or filing with,
any governmental body, agency or official, (iv) do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
articles of incorporation or by-laws of the Borrower or any such Subsidiary or
of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or such Subsidiary, and (v) do not and will not result
in the creation or imposition of any Lien on any asset of the Borrower or any of
such Subsidiaries (except in favor of the Collateral Agent).
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the other Credit Documents constitutes valid and binding obligations
of the Borrower and each such Subsidiary Guarantor party thereto enforceable in
accordance with their respective terms, provided that the enforceability hereof
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
SECTION 4.04. Financial Information. (a) The (i) audited (x)
consolidated financial statements (including the balance sheet and statements of
income, shareholders' equity and cash flows) of the Borrower and its
Consolidated Subsidiaries, and (y) consolidating financial statements (including
the balance sheet and statements of income, shareholders' equity and cash flows)
of the Borrower and all Subsidiaries, in each case for the Fiscal Year ending on
June 30, 1998 and in each case reported on by its certified public accountants,
copies of which have been delivered to each of the Lenders, and (ii) unaudited
(x) consolidated financial statements (including the balance sheet and
statements of income, shareholders' equity and cash flows) of the Borrower and
its Consolidated Subsidiaries, and (y) consolidating financial statements
(including the balance sheet and statements of income, shareholders' equity and
cash flows) of the Borrower and all Subsidiaries, in each case for the interim
period ended March 31, 1999, copies of which have been delivered to each of the
Lenders, fairly present, in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries or the consolidating
financial position of the Borrower and the Subsidiaries, as the case may be, as
of such dates and their consolidated or consolidating results of operations and
cash flows for such periods stated.
(b) Since March 31, 1999, there has been no event, act,
condition or occurrence having a Material Adverse Effect.
SECTION 4.05. No Litigation. Except as disclosed in SCHEDULE
4.05, there is no action, suit or proceeding pending, or to the knowledge of the
Borrower threatened, against or affecting the Borrower or any of the
Subsidiaries before any court or arbitrator or any governmental body, agency or
official which could reasonably be expected to have a Material Adverse Effect.
SECTION 4.06. Compliance with ERISA. The Borrower and each
member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of
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ERISA and the Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of ERISA and the
Code, and have not incurred any liability to the PBGC or a Plan under Title IV
of ERISA. Neither the Borrower nor any member of the Controlled Group is or ever
has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. Compliance with Laws; Payment of Taxes. The
Borrower and the Subsidiaries are in material compliance with all applicable
laws, regulations and similar requirements of governmental authorities
(including, without limitation, the Fair Labor Standards Act of 1938, as
amended), except as set forth in SECTION 4.14 or where such compliance is being
contested in good faith through appropriate proceedings, and except where any
such failure to comply (other than with respect to the Fair Labor Standards Act
of 1938, as amended) does not have and would not reasonably be expected to cause
a Material Adverse Effect and would not impede any rights of the Collateral
Agent with respect to the Collateral and the Borrower has adopted and continues
to follow a compliance program satisfactory to assure the accuracy of the
foregoing statement. There have been filed on behalf of the Borrower and its
Subsidiaries all federal, state and local income, excise, property and other tax
returns which are required to be filed by them and all taxes due pursuant to
such returns or pursuant to any assessment received by or on behalf of the
Borrower or any such Subsidiary have been paid. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate. No
United States income tax returns of the Borrower or any Subsidiaries which have
been examined through the Closing Date are, to the Borrower's knowledge, the
subject of any present dispute with the Internal Revenue Service.
SECTION 4.08. Force Majeure. None of the Borrower's nor any of
the Subsidiaries' respective businesses is suffering from effects of fire,
accident, strike, drought, storm, earthquake, embargo, tornado, hurricane, act
of God, acts of a public enemy or other casualty that could reasonably be
expected to have a Material Adverse Effect.
SECTION 4.09. Investment Company Act. Neither the Borrower nor
any of the Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the
Borrower nor any of the Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the
Borrower and the Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien except
as permitted in SECTION 5.18.
SECTION 4.12. No Default. Neither the Borrower nor any of the
Subsidiaries is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could have or cause a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
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SECTION 4.13. Full Disclosure. All information heretofore
furnished by the Borrower to any Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower or any Subsidiary to
any Agent or any Lender will be, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower has disclosed to the Lenders in
writing any and all facts which could have or cause a Material Adverse Effect.
The Borrower has disclosed to the Lenders all Early Payment Alternatives
existing as of the Closing Date.
SECTION 4.14. Environmental Matters. Except as disclosed in
SCHEDULE 4.14: (a) Neither the Borrower nor any Subsidiary is subject to any
Environmental Liability which could reasonably be expected to have or cause a
Material Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA. None of the real property owned, leased or operated
by the Borrower or any Subsidiary (collectively, the "Aggregate Real
Properties") has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Aggregate Real Properties or are otherwise present at, on, in or under
the Aggregate Real Properties, or, to the best of the knowledge of the Borrower,
at or from any adjacent site or facility, except for Hazardous Materials, such
as cleaning solvents, pesticides and other materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed, or otherwise handled in minimal amounts in the ordinary course of
business in substantial compliance with all applicable Environmental
Requirements.
(c) The Borrower and each of the Subsidiaries have
procured all Environmental Authorizations necessary for the conduct of its
business, and is in substantial compliance with all Environmental Requirements
in connection with the operation of the Aggregate Real Properties and the
Borrower's and each of the Subsidiary's respective businesses.
SECTION 4.15. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and the Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "blue sky" laws of
all applicable states and the federal securities laws, or for which the
applicable statute of limitations has expired. The issued shares of Capital
Stock of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free
and clear of any Lien or adverse claim. At least a majority of the issued shares
of capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of
the Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used
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to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock, or be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation T, U
or X.
SECTION 4.17. Insolvency. After giving effect to the execution
and delivery of the Credit Documents and the incurrence of the Obligations under
this Agreement: (i) neither the Borrower nor any Subsidiary will (x) be
"insolvent," within the meaning of such term as used in O.C.G.A. ss. 18-2-22 or
as defined in ss. 101 of the Bankruptcy Code, or SECTION 2 of either the "UFTA"
or the "UFCA", or as defined or used in any "Other Applicable Law" (as those
terms are defined below), or (y) be unable to pay its debts generally as such
debts become due within the meaning of SECTION 548 of the Bankruptcy Code,
SECTION 4 of the UFTA or SECTION 6 of the UFCA, or (z) have an unreasonably
small capital to engage in any business or transaction, whether current or
contemplated, within the meaning of SECTION 548 of the Bankruptcy Code, SECTION
4 of the UFTA or SECTION 5 of the UFCA; and (ii) the Obligations of the Borrower
under the Credit Documents will not be rendered avoidable under any Other
Applicable Law. For purposes of this SECTION 4.17, "UFTA" means the Uniform
Fraudulent Transfer Act, "UFCA" means the Uniform Fraudulent Conveyance Act, and
"Other Applicable Law" means any other applicable law pertaining to fraudulent
transfers or acts voidable by creditors, in each case as such law may be amended
from time to time.
SECTION 4.18. Insurance. The Borrower and each of the
Subsidiaries have (either in the name of such Borrower or in such Subsidiary's
own name), with financially sound and reputable insurance companies and with a
Best's Rating of at least "A", insurance in at least such amounts and against at
least such risks (including on all its property, and business interruption,
public liability and worker's compensation, to the extent not self insured as to
worker's compensation) as are usually insured against in the same general area
by companies of established repute engaged in the same or similar business.
SECTION 4.19. Possession of Permits. Each Borrower and each
Subsidiary possess all franchises, certificates, licenses, permits and other
authorizations from governmental political subdivisions or regulatory
authorities, and all patents, trademarks, service marks, trade names,
copyrights, licenses and other rights, free from burdensome restrictions, that
are necessary for the ownership, maintenance and operation of any of its
properties and assets, and no Borrower or Subsidiary is in violation of any
thereof except where any such failure to possess any of the foregoing does not
have and would not reasonably be expected to cause a Material Adverse Effect and
would not impede any rights of the Collateral Agent with respect to the
Collateral.
SECTION 4.20. Labor Disputes. Except as disclosed in SCHEDULE
4.20, (i) there is no collective bargaining agreement or other labor contract
covering employees of the Borrower or any Subsidiary, (ii) no such collective
bargaining agreement or other labor contract is scheduled to expire during the
term of this Agreement, (iii) no union or other labor organization is seeking to
organize, or to be recognized as, a collective bargaining unit of employees of
any of the Borrower or any Subsidiary or for any similar purpose and (iv) there
is no pending, or to the Borrower's knowledge, threatened, strike, work
stoppage, material unfair labor practice claim, or other material labor dispute
against or affecting any Borrower or any Subsidiary or their respective
employees.
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SECTION 4.21. Surety Obligations. Except as shown on SCHEDULE
4.21 hereto, neither the Borrower nor any of the Subsidiaries is obligated as
surety or indemnitor under any surety or similar bond or other contract issued
or entered into to assure payment, performance or completion of performance of
any undertaking or obligation of any Person.
SECTION 4.22. Restrictions. Neither the Borrower nor any of
the Subsidiaries is a party or subject to any contract, agreement, or charter or
other corporate restriction, which materially and adversely affects its business
or the use or ownership of any of its assets. Except pursuant to the Replacement
Loan Contract or as set forth on SCHEDULE 4.22 hereto, neither the Borrower nor
any of the Subsidiaries is a party or subject to any contract or agreement which
restricts its right or ability to incur Debt, none of which prohibit the
execution of or compliance with this Agreement or the other Credit Documents by
the Borrower or any of the Subsidiaries, as applicable.
SECTION 4.23. Leases. SCHEDULE 4.23 hereto is a complete
listing of all capitalized and operating leases of the Borrower and the
Subsidiaries as of the Closing Date. Each of the Borrower and the Subsidiaries
is in compliance in all material respects with all of the terms of each of its
respective capitalized and operating leases.
SECTION 4.24. Trade Relations. There exists no present
condition or state of facts or circumstances which would materially affect
adversely the Borrower or any of the Subsidiaries or prevent the Borrower or any
of the Subsidiaries from conducting its business after the consummation of the
transactions contemplated by this Agreement in substantially the same manner in
which they have heretofore been conducted, and, to the best of the Borrower's
knowledge, there exists no actual or threatened termination, cancellation or
limitation of, or any modification or change in, the business relationship
between the Borrower or any of the Subsidiaries and any customer or any group of
customers whose purchases individually or in the aggregate are material to the
business of the Borrower or any of the Subsidiaries, or with any material
supplier.
SECTION 4.25. Capital Structure. As of the date hereof,
SCHEDULE 4.25 hereto states (i) the correct name of each of the Subsidiaries of
Borrower (which, as of the Closing Date, is limited to FSC), its jurisdiction of
incorporation and the percentage of its Capital Stock owned by the Borrower,
(ii) the name of each of the Borrower's and the Borrower's Affiliates and the
nature of such affiliation, (iii) the number, nature and holder of all Capital
Stock of the Borrower and each Subsidiary, and (iv) the number of authorized,
issued, outstanding and treasury shares of the Borrower and each Subsidiary. The
Borrower has good title to all of the shares its purport to own of the Capital
Stock of each of its Subsidiaries, free and clear in each case of any Lien,
other than Permitted Encumbrances. All such shares have been duly issued and are
fully paid and non-assessable.
SECTION 4.26. Y2K Plan. The Borrower has developed and
delivered to the Administrative Agent and the Lenders a comprehensive plan (the
"Y2K Plan") for insuring that the Borrower's and the Subsidiaries software and
hardware systems which impact or affect in any way the business operations of
the Borrower and the Subsidiaries will be Year 2000 Compliant and Ready. The
Borrower and the Subsidiaries have met the Y2K Plan milestones such that all
hardware and software systems will be Year 2000 Compliant and Ready in
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accordance with the Y2K Plan. Each item of equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
systems of the Borrower or any of their Subsidiaries interface), and the testing
of all such systems and equipment, as so reprogrammed, will be completed as soon
as practicable, but in any event not later than September 30, 1999.
SECTION 4.27. Federal Taxpayer Identification Number. The
Borrower's and each Subsidiary's federal taxpayer identification numbers are as
indicated on the Collateral Disclosure Certificate.
SECTION 4.28. Bona Fide Accounts. Each item of the Accounts
Receivable Collateral arises or will arise under a contract between an Obligor
and the respective Account Debtor, or from the bona fide sale or delivery of
goods to or performance of services for, the Account Debtor by such Obligor.
SECTION 4.29. Good Title to Collateral. Each Obligor has good
title to the Collateral free and clear of all Liens, other than any Permitted
Encumbrances, and no assertable financing statement covering the Collateral is
on file in any public office other than any evidencing Permitted Encumbrances.
SECTION 4.30. Right to Assign and Grant Security Interest. The
Borrower has full right, power and authority to make the assignment pursuant to
this Agreement of the Accounts Receivable Collateral and to grant a security
interest in all of the Collateral.
SECTION 4.31. Trade Styles. Except as may be set forth on the
Collateral Disclosure Certificate, neither the Borrower nor any Subsidiary uses
trade names or trade styles (herein, "Trade Styles") in their business
operations and warrant that the same shall continue, except for any additional
Trade Styles after the date hereof with respect to which the Borrower has given
the Collateral Agent at least thirty (30) days prior written notice thereof. In
any event, to the extent that, now or hereafter, the Borrower uses any Trade
Styles, the Borrower hereby represents and warrants in favor of the Collateral
Agent that: (i) all of the accounts receivable and proceeds with respect thereto
arising out of sales under the Trade Styles shall be the property of, and belong
to, the Borrower and shall constitute Accounts Receivable Collateral; (ii) each
of the Trade Styles is a trade name and trade style (and not an independent
corporation or other legal entity) by which the Borrower identifies and sells
certain of their products or services and under which they may conduct a portion
of their business; (iii) all accounts receivable, proceeds thereof, and returned
merchandise which arise from the sale of products invoiced under the names of
any of the Trade Styles shall be owned solely by the Borrower and shall be
subject to the terms of this Agreement as they relate to Accounts Receivable
Collateral; and (iv) the Borrower hereby appoints the Collateral Agent as its
attorney-in-fact to file such certificates disclosing the Borrower's use of the
Trade Styles and to take such other actions on its behalf as are necessary to
comply with the statutes of any states relating to the use of fictitious or
assumed business names, to the extent that the Borrower fails to do so.
SECTION 4.32. Account Debtor Capacity and Solvency. Each
Account Debtor hereunder (a) had the capacity to contract at the time any
contract or other document giving rise
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to the account was executed and (b) such Account Debtor was not and is not
"insolvent," as that term is defined in SECTION 4.17.
SECTION 4.33. Proceedings with Respect to Accounts. There are
no proceedings or actions which are threatened or pending against any Account
Debtor which are reasonably likely to have a material adverse change in such
Account Debtor's financial condition or the collectibility of such account.
SECTION 4.34. Location of Collateral. As of the date hereof,
the Collateral consisting of goods of the Borrower is situated only at one or
more of the Collateral Locations.
SECTION 4.35. Material Contracts. SCHEDULE 4.35 hereto sets
forth a complete listing of all Material Contracts. Each of the Borrower and the
Subsidiaries is in compliance in all material respects with all the terms of
each such Material Contracts.
SECTION 4.36. Survival of Representations and Warranties. The
Borrower covenants, warrants and represents to the Agents and the Lenders that
all representations and warranties of the Borrower and the Subsidiaries
contained in this Agreement or any of the other Credit Documents shall be true
at the time of the execution of this Agreement and the other Credit Documents,
and shall survive the execution, delivery and acceptance thereof by the
Documentation Agent and the parties thereto and the closing of the transactions
described therein or related thereto.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any amount payable
hereunder or any of the Obligations remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each
of the Lenders:
(a) as soon as available and in any event within ninety
(90) days after the end of each Fiscal Year, audited (i) consolidated financial
statements (including the balance sheet and statements of income, shareholders'
equity and cash flows) of the Borrower and its Consolidated Subsidiaries, and
(ii) consolidating financial statements (including the balance sheet and
statements of income, shareholders' equity and cash flows) of the Borrower and
all such Subsidiaries, in each case as of the end of such Fiscal Year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all certified by its Certified Public Accountants or other independent public
accountants of nationally recognized standing acceptable to the Administrative
Agent, with such certification to be free of exceptions and qualifications not
acceptable to the Required Lenders;
(b) as soon as available and in any event within twenty
(20) days after the end of each Fiscal Month and within forty-five (45) days
after the end of each Fiscal Quarter, (i) consolidated financial statements
(including the balance sheet and statements of income, shareholders' equity and
cash flows) of the Borrower and its Consolidated Subsidiaries, and (ii)
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43
consolidating financial statements (including the balance sheet and statements
of income, shareholders' equity and cash flows) of the Borrower and all such
Subsidiaries, segregated on a division-by-division basis additionally, as
appropriate, in each case as of the end of such Fiscal Month or Fiscal Quarter,
as the case may be, and for the portion of the Fiscal Year ending on such date,
setting forth in each case in comparative form the figures for the corresponding
Fiscal Month or Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by a Senior Officer of the
Borrower;
(c) simultaneously with the delivery of each set of
annual and quarterly financial statements referred to in paragraphs (a) and (b)
above, a certificate, substantially in the form of EXHIBIT E (a "Compliance
Certificate"), of a Senior Officer of the Borrower (i) setting forth in
reasonable detail the calculations required to establish whether the Borrower
was in compliance with the requirements of SECTIONS 5.16 through 5.18,
inclusive, 5.20 through 5.22, inclusive, and SECTION 5.36 on the date of such
financial statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto;
(d) simultaneously with the delivery of each set of
annual financial statements referred to in paragraph (a) above, (i) a statement
of the Certified Public Accountants which reported on such statements to the
effect that (A) such accountants acknowledge and agree that the Agents and the
Lenders may rely upon such financial statement in the administration of this
Agreement, and (B) nothing has come to their attention to cause them to believe
that any Default existed on the date of such financial statements, and (ii) a
copy of any management letter furnished to the Borrower by such Certified Public
Accountants;
(e) as soon as available and in no event later than
forty-five (45) days after the end of each Fiscal Quarter of the Borrower,
projections of the Borrower and the Subsidiaries for the forthcoming four (4)
Fiscal Quarters, set forth Fiscal Quarter by Fiscal Quarter, together with all
material assumptions made in connection therewith and a comparison to any prior
projections for comparable periods;
(f) promptly, but in any event within two (2) Domestic
Business Days, after the Borrower becomes aware of the occurrence of any
Default, a certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the action which
the Borrower are taking or propose to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or monthly
reports which the Borrower shall have filed with the Securities and Exchange
Commission;
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(i) if and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable event" (as
defined in SECTION 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy of such
notice;
(j) written notice of the following: (i) promptly after
the Borrower's learning thereof, of (A) the commencement of any litigation
affecting the Borrower or any of the Subsidiaries or any of its respective
assets, whether or not the claim is considered by the Borrower to be covered by
insurance, and (B) the institution of any administrative proceeding which in
either case of clause (A) or (B), if decided adversely, would have a Material
Adverse Effect; (ii) at least thirty (30) days prior thereto, of the opening of
any new office or place of business of the Borrower or any of its Subsidiaries
or the closing of any existing office or place of business of the Borrower or
any of the Subsidiaries; (iii) promptly after the Borrower's learning thereof,
of any labor dispute to which the Borrower or any of the Subsidiaries may become
a party, or any strikes or walkouts relating to any of its plants or other
facilities, which in either case will have a Material Adverse Effect, and the
expiration of any labor contract to which it is a party or by which it is bound;
(iv) promptly after the occurrence thereof, of any default by any obligor under
any note or other evidence of indebtedness payable to the Borrower or any of the
Subsidiaries exceeding Two Hundred Fifty Thousand Dollars ($250,000); (v)
promptly after the rendition thereof, of any judgment in an amount exceeding Two
Hundred Fifty Thousand Dollars ($250,000) rendered against the Borrower or any
of the Subsidiaries; and (vi) knowledge of any and all Environmental
Liabilities, pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting the Aggregate Real Properties
or any adjacent property, and all facts, events, or conditions that could lead
to any of the foregoing;
(k) simultaneously with the delivery of each set of
annual and quarterly financial statements referred to in paragraphs (a) and (b)
in this SECTION 5.01 above, a statement of the Borrower's Senior Officer to the
effect that nothing has come to the Borrower's attention to cause it to believe
that the Y2K Plan milestones have not been met in a manner such that the
Borrower's and the Subsidiaries' hardware and software systems will not be Year
2000 Compliant and Ready in accordance with the Y2K Plan;
(l) within five (5) Domestic Business Days after the
Borrower becomes aware of any deviations from the Y2K Plan which would cause
compliance with the Y2K Plan to be delayed or not achieved, a statement of the
Borrower's Senior Officer setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(m) promptly upon the receipt thereof, a copy of any
third party assessments of the Borrower's Y2K Plan together with any
recommendations made by such third party with respect to Year 2000 compliance;
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(n) promptly upon their delivery to (or, as applicable,
from) the Replacement Lenders (or the Replacement Lender Co-Agents) copies of
any collateral status, borrowing base and similar reports, compliance covenants,
notices of default, termination or waiver and any amendments or modifications to
the Replacement Loan Contract;
(o) on or before May 31 of each fiscal year, Borrower's
business plan, including projections of EBITDA, Tangible Net Worth and capital
expenditures, for the next succeeding fiscal year (the "Business Plan"), which
Business Plan shall be reasonably acceptable to the Required Lenders in all
respects;
(p) on the first and third Wednesdays of each calendar
month, Borrower will provide the Collateral Agent with a report, which report
may be given orally or in writing, summarizing all Early Payment Alternatives
then being pursued by or offered to (whether or not solicited, if bona fide),
the Borrower, each in reasonable detail; and the Borrower agrees to review each
such Early Payment Alternative with the Lenders prior to its acceptance (or
rejection) thereof.
(q) as soon as available and in any event on the second
Business Day of each calendar week, the Borrower shall have prepared and
delivered to the Documentation Agent (x) a cash forecast and budget for the
coming four (4) calendar weeks (including the current week), segregated
week-by-week and (y) a weekly reconciliation of discrepancies among forecasted,
budgeted and actual cash receipts and disbursements for the prior week, all in
form satisfactory to the Document Agent.
(r) from time to time such additional information
regarding the financial position or business (including, without limitation, tax
returns and bank statements) of the Borrower and the Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. (a)
The Borrower will (i) keep, and cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and cause each Subsidiary to permit, any Agent
and any Lender (at the Borrower's expense, if a Default or Event of Default then
exists), to visit and inspect any of their respective properties, verify
information with any Person, to examine and make abstracts from any of the
Borrower's or such Subsidiaries' respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, the Borrower agreeing to cooperate
and assist in such visits and inspections, in each case prior to the occurrence
of a Default, at such reasonable times and as often as may reasonably be
requested, and after the occurrence of a Default, at any time and without prior
notice.
(b) In addition to the rights granted the Agents and the
Lenders pursuant to SECTION 5.02(a), each Agent (or any Person or Persons
designated by it) shall, in its sole discretion, have the right to call at any
place of business of the Borrower at any time and without prior notice, and,
without hindrance or delay, examine, inspect, and audit all or any portion of
the Collateral and to examine, inspect, audit and check and make copies of and
extracts from the
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Borrower's books, records, journals, orders, receipts and any correspondence and
other data relating to the Collateral, to the Borrower's business or to any
other transactions between the parties hereto.
SECTION 5.03. Maintenance of Existence and Management. The
Borrower shall, and shall cause each Subsidiary to maintain, (i) their
respective corporate existences and carry on their respective businesses in
substantially the same manner and in substantially the same fields as such
business is now carried on and maintained, except as permitted by SECTIONS 5.04
and 5.05, (ii) their respective corporate charters, by-laws, partnership
agreements, operating agreements and other similar documents and agreements
relating to their legal existence and organization, and not permit any amendment
or other modification thereto except for any amendment or modification that
would not affect the Obligations or result in a Material Adverse Effect, and
(iii) maintain executive management having sufficient skill and experience in
the Borrower's and the Subsidiaries' industry to manage the Borrower and the
Subsidiaries competently and efficiently.
SECTION 5.04. Dissolution. The Borrower shall not suffer or
permit dissolution or liquidation either in whole or in part or redeem or retire
any shares of its own stock or that of the Borrower or any Subsidiary, except
through corporate reorganization to the extent permitted by SECTION 5.05.
SECTION 5.05. Consolidations, Mergers and Sales of Assets. (a)
The Borrower will not, nor will it permit any Subsidiary to, merge or
consolidate, or permit any of its Subsidiaries to merge or consolidate, with any
Person, except for a merger or consolidation between Subsidiaries of the
Borrower or involving only the Borrower and one or more of its Subsidiaries in
which the Borrower is the surviving entity.
(b) The Borrower will not, nor will it permit any
Subsidiary to sell, lease or otherwise transfer all or any part of their assets
(including, without limitation, any sale and leaseback arrangement, but
excluding sales of inventory in the ordinary course of business) to, any other
Person, or discontinue or eliminate any business line or segment, provided that
the foregoing limitation on the sale, lease or other transfer of assets and on
the discontinuation or elimination of a business line or segment shall not
prohibit dispositions of certain Collateral subject to the provisions of SECTION
5.33.
SECTION 5.06. Use of Proceeds. No portion of the proceeds of
the Loans will be used by the Borrower or any Subsidiary, except to extend,
renew and refinance payment of the Balance Due.
SECTION 5.07. Compliance with Laws; Payment of Taxes. The
Borrower will, and will cause each of the Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited to
ERISA and the Fair Labor Standards Act of 1938, as amended), regulations and
similar requirements of governmental authorities (including but not limited to
PBGC), except where the necessity of such compliance is being contested in good
faith through appropriate proceedings diligently pursued and except where
failure to comply would not have and would not reasonably be expected to cause a
Material Adverse Effect. The Borrower will, and will cause each of the
Subsidiaries to, pay promptly when due all
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taxes, assessments, governmental charges, claims for labor, supplies, rent and
other obligations which, if unpaid, might become a Lien against the property of
the Borrower or any Subsidiary, except liabilities being contested in good faith
and against which, if requested by the Agent, the Borrower or such Subsidiary
will set up reserves in accordance with GAAP.
SECTION 5.08. Insurance; Net Casualty/Insurance Proceeds. (a)
The Borrower will maintain, and will cause each of the Subsidiaries to maintain
(either in the name of the Borrower or in such Subsidiary's own name), with
financially sound and reputable insurance companies acceptable to the Collateral
Agent and with a Best's Rating of at least "A", insurance on all of their
property in at least such amounts and against at least such risks (including on
all its property, public liability and worker's compensation (but solely with
respect to worker's compensation, only to the extent not self-insured), and
business interruption insurance) as are usually insured against in the same
general area by companies of established repute engaged in the same or similar
business. The Borrower shall deliver the originals or copies (which copies shall
be certified if requested by the Collateral Agent) of such policies to the
Collateral Agent with satisfactory lender's loss payable endorsements naming the
Collateral Agent, as agent for the other Agents and the Lenders, as sole loss
payee, assignee and additional insured, as its interests may appear. Each policy
of insurance or endorsement shall contain a clause (i) not permitting
cancellation by a Borrower without the prior written consent of the Collateral
Agent, (ii) requiring the insurer to give not less than thirty (30) days prior
written notice to the Collateral Agent in the event of cancellation or
non-renewal by the insurance company of the policy for any reason whatsoever,
and (iii) specifying that the interest of the Collateral Agent shall not be
impaired or invalidated by any act or neglect of the Borrower or the owner of
the property or by the occupation of the premises for purposes more hazardous
than are permitted by said policy. On the Closing Date, and from time to time
thereafter upon the Collateral Agent's request, the Borrower shall provide the
Collateral Agent with a statement from each insurance company providing the
foregoing coverage, acknowledging in favor of the Collateral Agent the continued
effectiveness of the foregoing insurance clauses. If the Borrower fails to
provide and pay for such insurance, the Collateral Agent may, at its option, but
shall not be required to, procure the same and charge the Borrower therefor as a
part of the Obligations.
(b) Net Casualty/Insurance Proceeds must be applied to
the payment of the Obligations.
SECTION 5.09. Change in Fiscal Year. The Borrower will not
change its Fiscal Year, or the Fiscal Year of any Subsidiary, without the
consent of the Required Lenders.
SECTION 5.10. Maintenance of Property. The Borrower shall, and
shall cause each Subsidiary to, maintain all of its properties and assets in
reasonably good condition, repair and working order, ordinary wear and tear
excepted. Without limitation of the foregoing, the Borrower and Subsidiaries
shall maintain all Real Property Collateral in good operating condition and
repair, reasonable wear and tear excepted, and all necessary replacements of and
repairs thereto shall be made so that the value and operating efficiency of the
Real Property Collateral shall be maintained and preserved, reasonable wear and
tear excepted. Without the prior written consent of the Collateral Agent, none
of the Equipment Collateral may be affixed to any real property (excepting
therefrom any Real Property Collateral) such that it is characterized as a
fixture under applicable law.
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SECTION 5.11. Material Contracts. The Borrower shall comply,
and cause each Subsidiary to comply, with all material terms and conditions of
any Material Contract to which it is a party. The Borrower will not, without the
Administrative Agent's and the Required Lenders' prior written consent, (i)
enter into, or permit any Subsidiary to enter into, any amendment or
modification to any Material Contract of a material nature, or (ii) permit any
Material Contract to be cancelled or terminated prior to its stated maturity.
The Borrower shall promptly notify the Administrative Agent and deliver to the
Administrative Agent any notice received by the Borrower with respect to any
event which constitutes a default by the Borrower or Subsidiary under any
Material Contract to which the Borrower or such Subsidiary is a party or by
which any of the assets of the Borrower or Subsidiary may be bound.
SECTION 5.12. Environmental Matters. The Borrower and the
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Aggregate Real Properties
any Hazardous Materials except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed, managed, or otherwise
handled in minimal amounts in the ordinary course of business in compliance with
all applicable Environmental Requirements.
SECTION 5.13. Environmental Release. The Borrower agrees that
upon the occurrence of an Environmental Release at or on any of the Aggregate
Real Properties it will act immediately to investigate the extent of, and to
take appropriate remedial action to eliminate, such Environmental Release,
whether or not ordered or otherwise directed to do so by any Environmental
Authority.
SECTION 5.14. Transactions with Affiliates. Other than
transactions or arrangements existing on the Closing Date and described on
SCHEDULE 5.14, neither the Borrower nor any of the Subsidiaries shall enter
into, or be a party to, any transaction involving Two Hundred Fifty Thousand
Dollars ($250,000) or more with any Affiliate of the Borrower or such
Subsidiaries (which Affiliate is not one of the Borrower or a Wholly Owned
Subsidiary), except as permitted by law and in the ordinary course of business
and pursuant to reasonable terms which are fully disclosed to the Agents and the
Lenders and are no less favorable to such Borrower or such Subsidiary than would
be obtained in a comparable arm's length transaction with a Person which is not
an Affiliate.
SECTION 5.15. No Other Subsidiaries. Neither the Borrower nor
any of the Subsidiaries shall hereafter create or acquire any Subsidiary; and
the Borrower shall not transfer any material assets to FSC.
SECTION 5.16. Restricted Payments. The Borrower will not
declare or make any Restricted Payment.
SECTION 5.17. Investments. The Borrower will not, and will not
permit any of the Subsidiaries to, make Investments in any Person, except:
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(i) loans or advances to employees not exceeding
One Hundred Thousand Dollars ($100,000) in the aggregate
principal amount outstanding at any time, in each case made in
the ordinary course of business and consistent with practices
existing on the Closing Date;
(ii) deposits required by government agencies,
public utilities or insurance companies;
(iii) Investments by any Borrower to or in any
Subsidiaries, either (1) existing on the Closing Date, or (2)
not existing on the Closing Date, but not exceeding Two
Hundred Thousand Dollars ($200,000) in the aggregate
outstanding;
(iv) Investments in (1) direct obligations of the
United States Government maturing within one year, (2)
certificates of deposit issued by a commercial bank whose
credit is satisfactory to the Collateral Agent, (3) commercial
paper rated "A1" or the equivalent thereof by S&P or P1 or the
equivalent thereof by ▇▇▇▇▇'▇ and in either case maturing
within 6 months after the date of acquisition, and/or (4)
tender bonds the payment of the principal of and interest on
which is fully supported by a letter of credit issued by a
United States bank whose long-term certificates of deposit are
rated at least "AA" or the equivalent thereof by S&P and "Aa"
or the equivalent thereof by ▇▇▇▇▇'▇;
(v) Investments as a result of Interest Rate
Protection Agreements, not entered into for speculative
purposes;
(vi) Investments as a result of ForEx Contracts,
not entered into for speculative purposes; and
(vii) Investments arising from contracts for the
future or forward sale of raw cotton made in the ordinary
course of Borrower's business for hedging purposes (but not
for speculation) which contracts do not exceed, in the
aggregate, sales of raw cotton (in units) in excess of the
amount (in units) of the Borrower's present purchases (or
commitments to purchase) such raw cotton.
provided, however, that immediately after giving effect to the making of any
Investment permitted by this SECTION 5.17, no Default or Event of Default shall
have occurred and be continuing;
SECTION 5.18. Permitted Liens. The Borrower will not, and will
not permit any Subsidiary to, create, assume or suffer to exist any Lien,
directly or indirectly, on any asset now owned or hereafter acquired by it,
except as set forth below (the following herein called, collectively, the
"Permitted Encumbrances"):
(a) Liens existing on the date of this Agreement securing
Debt outstanding on the date of this Agreement and disclosed in the Collateral
Disclosure Certificate;
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(b) any Lien existing on any specific fixed asset of any
corporation at the time such corporation becomes a Subsidiary (if then permitted
to exist hereunder) and not created in contemplation of such event;
(c) any Lien on any specific fixed asset securing Debt
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring or constructing such asset, provided that such Lien attaches to such
asset concurrently with or within eighteen (18) months after the acquisition or
completion of construction thereof;
(d) any Lien on any specific fixed asset of any
corporation existing at the time such corporation is merged or consolidated with
or into the Borrower or a Subsidiary and not created in contemplation of such
event;
(e) any Lien existing on any specific fixed asset prior
to the acquisition thereof by the Borrower or a Subsidiary and not created in
contemplation of such acquisition;
(f) Purchase Money Liens, securing purchase money Debt
permitted under SECTION 5.22(g); provided, however, that in granting such
Purchase Money Liens, Borrower shall use its best efforts to obtain from the
holder of such Lien a consent (if such a consent is, in fact, necessary) to the
grant of a Lien on the equipment covered by such Purchase Money Lien in favor of
the Collateral Agent;
(g) Liens incidental to the conduct of its business or
the ownership of its assets which (i) do not secure Debt and (ii) do not in the
aggregate materially detract from the value of its assets or materially impair
the use thereof in the operation of its business; and
(h) the Replacement Loan Lien, subject, however, to the
terms of the Intercreditor Agreement;
provided, however, that immediately after giving effect to the creation,
assumption, existence or incurrence of any Liens permitted by this SECTION 5.18,
no Default or Event of Default shall have occurred and be continuing.
SECTION 5.19. Restrictions on Ability of Borrower and
Subsidiaries to Pay Dividends. The Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any contractual encumbrance or restriction on the
ability of any Subsidiary to (i) pay any dividends or make any other
distributions on its Capital Stock or any other interest or (ii) make or repay
any loans or advances to the Borrower.
SECTION 5.20. Financial Covenants. Fail to maintain:
(a) Minimum EBITDA. EBITDA of at least the amount set
forth in the table below, measured on a Fiscal Month-end basis for Fiscal Year
to such date, as of the applicable date set forth in the table below;
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----------------------------------------------------------
As of the Fiscal Month Ended Year-to-Date EBITDA:
Closest to:
----------------------------------------------------------
July 31, 1999 $594,000
----------------------------------------------------------
August 31, 1999 $1,283,000
----------------------------------------------------------
September 30, 1999 $2,162,000
----------------------------------------------------------
October 31, 1999 $3,317,000
----------------------------------------------------------
November 30, 1999 $4,265,000
----------------------------------------------------------
December 31, 1999 $5,059,000
----------------------------------------------------------
January 31, 2000 $6,157,000
----------------------------------------------------------
February 28, 2000 $7,319,000
----------------------------------------------------------
March 31, 2000 $8,648,000
----------------------------------------------------------
April 30, 2000 $10,089,000
----------------------------------------------------------
May 31, 2000 $11,586,000
----------------------------------------------------------
June 30, 2000 $13,253,000
----------------------------------------------------------
(b) Tangible Net Worth. Tangible Net Worth of at least
the amount set forth in the table below, measured on a Fiscal Month-end basis,
as of the applicable date set forth in the table below:
----------------------------------------------------------
As of the Fiscal Month Ended Tangible Net Worth:
Closest to:
----------------------------------------------------------
July 31, 1999 $43,675,000
----------------------------------------------------------
August 31, 1999 $42,778,000
----------------------------------------------------------
September 30, 1999 $41,664,000
----------------------------------------------------------
October 31, 1999 $41,254,000
----------------------------------------------------------
November 30, 1999 $40,615,000
----------------------------------------------------------
December 31, 1999 $39,384,000
----------------------------------------------------------
January 31, 2000 $38,929,000
----------------------------------------------------------
February 28, 2000 $38,557,000
----------------------------------------------------------
March 31, 2000 $37,945,000
----------------------------------------------------------
April 30, 2000 $37,867,000
----------------------------------------------------------
May 31, 2000 $37,865,000
----------------------------------------------------------
June 30, 2000 $37,639,000
----------------------------------------------------------
; provided, however, that, based upon Borrower's Business Plan delivered to the
Lenders pursuant to SECTION 5.01(o), the Required Lenders shall establish the
monthly minimum EBITDA and Tangible Net Worth covenants for each Fiscal Year
after the Fiscal Year ending closest to June 30, 2000 using the same methodology
as utilized for the Fiscal Year ending closest to June 30, 2000, and the
covenants shall be presented to Borrower for its approval, which approval shall
not be unreasonably withheld. In the event Borrower does not approve the
proposed covenants, then the Required Lenders shall establish such covenants, in
their reasonable discretion, based upon Borrower's Business Plan for the
applicable Fiscal Year; provided, however, that with respect to the minimum
Tangible Net Worth covenant set forth in SECTION 5.20(b), prior to the date such
covenant is established for Fiscal Months subsequent to June 30, 2000, Borrower
shall not fail to maintain Tangible Net Worth of at least $37,639,000 as of each
Fiscal Month-end.
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SECTION 5.21. Capital Expenditures. Make capital expenditures
in any Fiscal Month during the Fiscal Year ending closest to June 30, 2000 in
excess of $333,000; provided, however, that, to the extent that Borrower has not
made capital expenditures totaling $333,000 per Fiscal Month during the
preceding Fiscal Months within any such Fiscal Year, the unused amount may be
carried forward to the succeeding Fiscal Months in such Fiscal Year, but such
amounts may not be carried forward to any succeeding Fiscal Year; and, provided,
further, however, that, based upon Borrower's Business Plan delivered to the
Co-Agents pursuant to SECTION 5.01(o), the Required Lenders shall establish the
monthly maximum capital expenditure covenant for each Fiscal Year after the
Fiscal Year ending closest to June 30, 2000 using the same methodology as
utilized for the Fiscal Year ending closest to June 30, 2000, and the covenant
shall be presented to Borrower for its approval, which approval shall not be
unreasonably withheld. In the event Borrower does not approve the proposed
covenant, then the Required Lenders shall establish such covenant, in their
reasonable discretion, based upon Borrower's Business Plan for the applicable
Fiscal Year.
SECTION 5.22. Permitted Debt. The Borrower will not, and will
not permit any Subsidiary to, create, assume or incur any Debt, except as
follows (the amounts set forth below are in the aggregate for the Borrower and
all Subsidiaries).
(a) Debt owing by any Subsidiary to the Borrower;
(b) Debt to the Agents and the Lenders under this
Agreement or any Credit Document;
(c) Subordinated Debt (including any refinanced
Subordinated Debt so long as (i) the maturity of such refinanced Subordinated
Debt is not earlier than the maturity of the original Subordinated Debt, and
(ii) the interest, fees and other amounts payable with respect to such
refinanced Subordinated Debt are no greater than any interest, fees or other
amounts payable with respect to the original Subordinated Debt);
(d) Debt consisting of accrued pension fund and other
employee benefit plan obligations and liabilities;
(e) Debt consisting of deferred taxes;
(f) Debt resulting from endorsements of negotiable
instruments received in the ordinary course of business;
(g) Debt secured by Purchase Money Liens to the extent
that the capital expenditure in regard thereto is then permitted to be made
under SECTION 5.21;
(h) contingent obligations with respect to letters of
credit which have been issued but not drawn upon;
(i) other Debt for any Fiscal Year of the Borrower in an
aggregate amount not to exceed Two Hundred Thousand Dollars ($200,000);
(j) the Replacement Loan;
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(k) Debt arising out of the refinancing, extension,
renewal or refunding of any Debt permitted by any of the foregoing paragraphs of
this SECTION so long as (i) the maturity of such refinanced Debt is not earlier
than the maturity of such original Debt, and (ii) the interest, fees and other
amounts payable with respect to such refinanced Debt are no greater than any
interest, fees or other amounts payable with respect to the original Debt; and
(l) Debt under the Prior Loan Agreement and any other
Debt being refinanced pursuant hereto;
provided, however, that immediately after giving effect to the creation,
assumption, existence or incurrence of any Debt permitted by this SECTION 5.22,
no Default or Event of Default shall have occurred and be continuing; and,
provided, further, that Borrower shall not prepay, redeem, retire, defease,
purchase or otherwise acquire any such Debt prior to its stated maturity.
SECTION 5.23. Limitation on Issuance and Sale of Capital Stock
of Subsidiaries. Other than pursuant to the Warrants, the Borrower will not, nor
permit any Subsidiary to, permit any Wholly Owned Subsidiary to issue any
Capital Stock other than to a Borrower or one of its Wholly Owned Subsidiaries
or permit any Person other than a Borrower or one of its Wholly Owned
Subsidiaries to own any Capital Stock of a Wholly Owned Subsidiary (other than
directors' qualifying shares); or sell any of the Capital Stock of a Subsidiary
of a Borrower, or permit any Subsidiary of a Borrower to sell any of the Capital
Stock of any other Subsidiary.
SECTION 5.24. Change of Principal Place of Business or
Location of Collateral. Neither Borrower nor any Subsidiary shall transfer its
principal place of business or Executive Office, or open new Collateral
Locations or warehouses, or transfer existing Collateral Locations or
warehouses, or locate the Collateral at any location other than a Collateral
Location, or maintain records with respect to Collateral, to or at any locations
other than those at which the same are presently kept or maintained as set forth
on the Collateral Disclosure Certificates without the Agents' prior written
consent after at least thirty (30) days prior written notice to the Agents.
SECTION 5.25. Physical Inventories. The Borrower shall conduct
a physical inventory no less frequently than annually and shall provide to the
Collateral Agent a report of such physical inventory promptly thereafter,
together with such supporting information as the Collateral Agent shall
reasonably request.
SECTION 5.26. Inventory Returns. If at any time or times
hereafter any Account Debtor returns any Inventory Collateral the shipment of
which generated an account on which such Account Debtor is obligated in excess
of Three Hundred Thousand Dollars ($300,000), the Borrower shall notify the
Collateral Agent of the same immediately, specifying the reason for such return
and the location and condition of the returned Inventory.
SECTION 5.27. Preservation of Intangibles Collateral. The
Borrower shall take all reasonably necessary and appropriate measures, taking
into account the value and usefulness of the relevant Intangibles Collateral and
the cost of such measures, to (and to cause such Subsidiary to) obtain,
maintain, protect and preserve the Intangibles Collateral including, without
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limitation, registration thereof with the appropriate state or federal
governmental agency or department.
SECTION 5.28. Records Respecting Collateral. All records of
each Obligor with respect to the Collateral will be kept at their respective
Executive Offices and will not be removed from such addresses without the prior
written consent of the Collateral Agent.
SECTION 5.29. Reports Respecting Collateral. Copies of all
reports concerning Collateral given to the Replacement Lender Co-Agents pursuant
to Section 6.2 of the Replacement Loan Contract (or any successor provision),
promptly after their delivery to the Replacement Lender Co-Agents, together with
such other reports concerning Collateral as any Agent may reasonably request
from time to time.
SECTION 5.30. Collateral Location Waivers. With respect to
each of the Collateral Locations, to the extent not already obtained pursuant to
the Prior Loan Agreement, Borrower will obtain, or cause each Subsidiary
Guarantor to obtain, such Waiver Agreements from Third Parties as the Collateral
Agent may reasonably require to insure the priority of its security interest in
that portion of the Collateral situated at such locations.
SECTION 5.31. Appraisals. The Collateral Agent reserves the
right, exercisable from time to time hereafter, but no more frequently than
annually, unless an Event of Default then exists, to require that the Borrower
obtain, and the Borrower shall so obtain, at the Borrower's expense, appraisals
(or updates to then existing appraisals being obtained in connection with the
execution and delivery of this Agreement) reflecting then current values of any
Real Property Collateral.
SECTION 5.32. Payment of Taxes On and Use of Collateral. The
Borrower shall timely pay, or cause each Subsidiary Guarantor to pay, all taxes
and other charges against the Collateral, and the Borrower will not use the
Collateral illegally.
SECTION 5.33. Dispositions of Certain Collateral. The Borrower
will not (and will not permit any Subsidiary to) sell, lease, exchange, arrange
for a sale and leaseback, or otherwise dispose of any Collateral without the
prior written consent of the Collateral Agent; provided, however, that, with
notice to, but without the necessity of consent of, the Collateral Agent, from
time to time hereafter, in the ordinary course of the Borrower's or a
Subsidiary's business for so long as no Default or Event of Default exists, the
Borrower may: (i) sell Inventory Collateral; and (ii), sell, exchange or
otherwise dispose of portions of its Equipment Collateral which are obsolete,
worn-out or unsuitable for continued use by the Borrower or any Subsidiary if
such Equipment Collateral is replaced promptly upon its disposition with
equipment constituting Equipment Collateral having a market value equal to or
greater than the Equipment Collateral so disposed of and in which the Collateral
Agent shall obtain a security interest pursuant hereto subject only to Permitted
Encumbrances.
SECTION 5.34. Changes to Taxpayer Identification Number.
Borrower will not, and will not permit any Subsidiary to, change its federal
taxpayer identification number without thirty (30) days' prior written notice to
the Collateral Agent.
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SECTION 5.35. Taxes Owing with Respect to Accounts. The
Borrower shall notify the Collateral Agent if any Account of the Borrower or
any Subsidiary includes any such tax due to any governmental taxing authority.
If an account of the Borrower or any Subsidiary includes a charge for any tax
payable to any governmental taxing authority, the Collateral Agent is
authorized, in its sole discretion, to pay the amount thereof to the proper
taxing authority for the account of the Borrower or such Subsidiary.
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default. If any one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal
of the Loan, or shall fail to pay any interest on the Loan within five (5)
Domestic Business Days after such interest shall become due, or shall fail to
pay any fee or other Obligations within five (5) Domestic Business Days after
such fee or other Obligation becomes due; or
(b) the Borrower shall fail to observe or perform any
covenant contained in SECTIONS 5.01, 5.02(a)(ii), 5.02(b), 5.03 through 5.06,
inclusive, 5.08, 5.15 through 5.22, inclusive, and 5.33; or
(c) the Borrower or any subsidiary party thereto shall
fail to observe or perform any covenant or agreement contained or incorporated
by reference in this Agreement (other than those covered by paragraph (a) or (b)
above) or any Credit Document and such failure shall not have been cured within
thirty (30) days after the earlier to occur of (i) written notice thereof has
been given to the Borrower by the Administrative Agent or (ii) the Borrower
otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in ARTICLE 4 of this Agreement or made by any
Person in any certificate, financial statement or other document delivered
pursuant to this Agreement or any other Credit Document shall prove to have been
incorrect or misleading in any material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding (other than the Obligations) to any
Lender or under any document or agreement pertaining to such Debt when due or
within any applicable grace period; or
(f) any event or condition shall occur which results in
the acceleration of the maturity of Debt outstanding of the Borrower or any
Subsidiary in an aggregate principal amount of Two Hundred Fifty Thousand
Dollars ($250,000) or more (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower or any Subsidiary) or
enables (or, with the giving of notice or lapse of time or both, would enable)
the holders of such Debt or commitment or any Person acting on such holders'
behalf to accelerate the maturity thereof or terminate any such commitment prior
to its normal expiration (including, without
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limitation, any required mandatory prepayment or "put" of such Debt to the
Borrower or any Subsidiary); or
(g) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal bankruptcy laws as now or hereafter
in effect; or
(i) the Borrower, any Subsidiary or any member of the
Controlled Group shall fail to pay when due any material amount which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or
notice of intent to terminate a Plan or Plans shall be filed under Title IV of
ERISA by the Borrower, any Borrower, any Subsidiary, any member of the
Controlled Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any such Plan or Plans or a
proceeding shall be instituted by a fiduciary of any such Plan or Plans to
enforce SECTION 515 or 4219(c)(5) of ERISA and such proceeding shall not have
been dismissed within thirty (30) days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated; or
(j) one or more judgments or orders of any court or other
judicial body for the payment of money in an aggregate amount in excess of Two
Hundred Fifty Thousand Dollars ($250,000) (in excess of amounts covered by
insurance) shall be rendered after the Closing Date against the Borrower or any
Subsidiary and such judgment or order shall either continue unsatisfied and
unstayed for a period of thirty (30) days or give rise to a Lien on any
Collateral at any time; or
(k) if the Borrower shall cause, permit or suffer,
directly or indirectly, a Change of Control; or
(l) the loss of a material part of the business from any
customer of the Borrower or any Subsidiary which, during the Fiscal Year ended
prior to such loss thereof, accounted for fifteen percent (15%) or more of the
aggregate sales of the Borrower; or
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(m) if, on any day, the Borrower could not truthfully
make the representations and warranties contained in SECTION 4.17; or
(n) there shall have occurred material uninsured damage
to, or loss, theft or destruction of, any material part of the Collateral; or
(o) the occurrence of any event, act, occurrence, or
condition which the Required Lenders determine either does or has a reasonable
probability of causing a Material Adverse Effect; or
(p) any strike, lockout, labor dispute, embargo,
condemnation, act of God or public enemy, or other casualty or injunction, court
order, or order or act of a governmental authority which causes, for more than
thirty (30) consecutive days beyond the coverage period of any applicable
business interruption insurance, the cessation or substantial curtailment of
revenue producing activities at any facility of any Borrower or any Subsidiaries
if any such event or circumstance could reasonably be expected to have a
Material Adverse Effect; or
(q) if any guarantor under any Guaranty revokes or
attempts to revoke such Guaranty or claims that such Guaranty is invalid or if
any Guaranty is determined by a court to be invalid or unenforceable; or
(r) any "Event of Default" (as that term is defined in
the Replacement Loan Contract) shall occur, regardless whether such "Event of
Default" is waived or the term or condition of the Replacement Loan Agreement
giving rise to such "Event of Default" is modified or amended so that such
"Event of Default" no longer exists;
then, and in every such event, the Administrative Agent will, if requested by
the Required Lenders: (i) by notice to the Borrower declare the Notes (together
with accrued interest thereon), and all other Obligations to be, and the same
shall thereupon become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower, together with interest at the Default Rate accruing on the principal
amount thereof from and after the date of such Event of Default provided that if
any Event of Default specified in paragraph (g) or (h) above occurs with respect
to the Borrower (herein, a "Bankruptcy Default"), without any notice to the
Borrower or any other act by the Agents or the Lenders, the Notes (together with
accrued interest thereon) and all other amounts payable hereunder and under the
other Credit Documents shall automatically and without notice become immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower together with interest
thereon at the Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default; and/or (ii) exercise any rights, powers
or remedies under this Agreement and the other Credit Documents. Notwithstanding
the foregoing, each Agent shall have available to it all other remedies at law
or equity, and shall exercise any one or all of them at the request of the
Required Lenders. In no event may any Lender or Lenders exercise any rights,
remedies or powers with respect to the Obligations, this Credit Agreement and
the other Credit Documents without the consent of the Agents and the Required
Lenders.
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SECTION 6.02. Notice of Default. The Administrative Agent
shall give notice to the Borrower of any Default or Event of Default promptly
upon being requested to do so by any Lender or other Agent, and shall thereupon
notify the Lenders and the Agents thereof.
SECTION 6.03. Remedies with Respect to Collateral. (a) Upon
the occurrence of an Event of Default, as to any Collateral other than Real
Property Collateral (to the extent that the rights and remedies of Collateral
Agent under which are governed by the Mortgages), the Collateral Agent or any
representative of the Collateral Agent shall have the rights and remedies of a
secured party under the UCC in effect on the date thereof (regardless of whether
the same has been enacted in the jurisdiction where the rights or remedies are
asserted), including, without limitation, the right to require each Obligor to
assemble such Collateral, at the Borrower's expense, and make it available to
the Collateral Agent at a place designated by the Collateral Agent which is
reasonably convenient to both parties, and enter any premises where any of such
Collateral shall be located and to keep and store the Collateral on said
premises until sold (and if said premises be the property of the Borrower or any
of the Subsidiaries, the Borrower agrees not to charge the Collateral Agent for
storage thereof), to take possession of any of such Collateral or the proceeds
thereof, to sell or otherwise dispose of the same, and the Collateral Agent
shall have the right to conduct such sales on the premises of Obligors, without
charge therefor, and such sales may be adjourned from time to time in accordance
with applicable law. The Collateral Agent may sell, lease or dispose of
Collateral for cash, credit, or any combination thereof, and shall have the
right to appoint a receiver of the Accounts Receivable Collateral and the
Inventory Collateral or any part thereof, and the right to apply the proceeds
therefrom as set forth in SECTION 6.03(b) below. The Collateral Agent shall give
the Borrower on behalf of all Obligors written notice of the time and place of
any public sale of such Collateral or the time after which any other intended
disposition thereof is to be made. The requirement of sending reasonable notice
shall be met if such notice is given to the Borrower at least ten (10) days
before such disposition. Expenses of retaking, verifying, restoring, holding,
insuring, collecting, preserving, liquidating, protecting, preparing for sale or
selling, or otherwise disposing of or the like with respect to such Collateral
shall include, in any event, reasonable attorneys' fees and other legally
recoverable collection expenses, all of which shall constitute a part of the
Obligations. Subject to any contrary provisions of the Intercreditor Agreement,
proceeds of any of the Collateral and payments by the Obligors during the
existence of an Event of Default received by the Collateral Agent or any Lender
shall be applied in accordance with the provisions of SECTION 2.08(d); and,
after all of the Obligations have been paid in full, any excess of such proceeds
shall be payable to the Borrower or any other Person as required by applicable
law. In the event that the proceeds of the Collateral are not sufficient to pay
the Obligations in full, the Borrower and such Subsidiary Guarantor shall remain
liable jointly and severally for any deficiency.
(b) Each Obligor hereby waives all rights which the
Obligor has or may have under and by virtue of O.C.G.A. CH. 44-14, including,
without limitation, the right to notice and to a judicial hearing prior to
seizure of any Collateral by the Collateral Agent.
(c) Unless and except to the extent expressly provided
for to the contrary herein, the rights of the Collateral Agent specified herein
shall be in addition to, and not in limitation of, the Collateral Agent's and
each Lender's rights under the UCC, or any other statute or rule of law or
equity, or under any other provision of any of the Credit Documents, or
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under the provisions of any other document, instrument or other writing executed
by the Borrower, and other Obligor or any third party in favor of the Collateral
Agent, all of which may be exercised successively or concurrently.
(d) The Collateral Agent is hereby granted a license or
other right to use, without charge, each Obligor's labels, patents, copyrights,
rights of use of any name, trade secrets, trade names, trademarks and
advertising matter, or any Property of a similar nature, as it pertains to the
Collateral, in advertising for sale and selling any Collateral, and the
Obligors' rights under all licenses and all franchise agreements shall inure to
the Collateral Agent's benefit.
(e) Neither the Collateral Agent nor any Lender shall be
liable or responsible in any way for the safekeeping of any of the Collateral or
for any loss or damage thereto or for any diminution in the value thereof, or
for any act or default of any warehouseman, carrier, forwarding agency, or other
person whomsoever, but the same shall be at the Borrower's sole risk.
(f) Neither the Collateral Agent nor any Lender shall be
under any obligation to marshal any assets in favor of the Borrower, any other
Obligor or any other Person or against or in payment of any or all of the
Obligations.
SECTION 6.04. Power of Attorney. Each Obligor irrevocably
designates and appoints the Collateral Agent its true and lawful attorney,
during the existence of an Event of Default, either in the name of the
Collateral Agent or in the name of such Obligor to ask for, demand, ▇▇▇ for,
collect, compromise, compound, receive, receipt for and give acquittances for
any and all sums owing or which may become due upon any items of the Collateral
and, in connection therewith, to take any and all actions as the Collateral
Agent may deem necessary or desirable in order to realize upon the Collateral,
including, without limitation, power to endorse in the name of such Obligor, any
checks, drafts, notes or other instruments received in payment of or on account
of the Inventory Collateral or the Accounts Receivable Collateral, but the
Collateral Agent shall not be under any duty to exercise any such authority or
power or in any way be responsible for the collection or other disposition of
any Collateral.
ARTICLE 7
THE AGENTS AND THE LENDERS
SECTION 7.01. Appointment; Powers and Immunities. (a) Each
Lender hereby irrevocably appoints and authorizes each Agent (including its
successors by merger) to act as its agent hereunder and under the other Credit
Documents with such powers as are specifically delegated to such Agent by the
terms hereof and thereof, together with such other powers as are reasonably
incidental thereto. Each Agent: (i) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Credit Documents,
and shall not by reason of this Agreement or any other Credit Document be a
trustee for any Lender; (ii) shall not be responsible to the Lenders for any
recitals, statements, representations or warranties contained in this Agreement
or any other Credit Document, or in any certificate or other document referred
to or provided for in or received by any Lender under this Agreement or any
other Credit
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Document, or for the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Credit Document or any other document
referred to or provided for herein or therein or for any failure by any Borrower
to perform any of its obligations hereunder or thereunder; (iii) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Credit Document except to the extent requested by
the Required Lenders, and then only on terms and conditions which do not, in the
reasonable judgment of such Agent, subject such Agent to any undue risk; and
(iv) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other Credit Document or any other document or instrument
referred to or provided for herein or therein or in connection herewith or
therewith, except for its own gross negligence or wilful misconduct. Each Agent
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The provisions of this ARTICLE 7 are solely for the
benefit of the Agents and the Lenders, and neither the Borrower nor any
Subsidiary Guarantor shall have any rights as a third party beneficiary of any
of the provisions hereof. In performing its functions and duties under this
Agreement and under the other Credit Documents, such Agent shall act solely as
agent of the Lenders and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of each Agent shall be ministerial and administrative in
nature, and no Agent shall have by reason of this Agreement or any other Credit
Document a fiduciary relationship in respect of any Lender. Each Agent shall
remit to the Lenders, as soon as reasonably practicable following receipt
thereof, all payments and other amounts received by it hereunder for the account
of the Lenders.
(b) The Syndication Agent, the Lead Manager and the
Arranger shall have no duties or responsibilities hereunder other than for the
arranging of the credit facilities contemplated hereby and the selection of the
Agents and Lenders participating therein. The Administrative Agent shall have
the sole and exclusive right and authority to act as the disbursing and
collecting agent for the Lenders with respect to all payments and collections
arising in connection with this Agreement and the other Credit Documents; and to
undertake all other duties and responsibilities delegated to it hereunder. The
Documentation Agent shall have the sole and exclusive right and authority to
execute and deliver each Credit Document (other than this Credit Agreement) on
behalf of the Lenders and accept delivery of each such agreement delivered by
any Borrower or any other Person; and to undertake all other duties and
responsibilities delegated to it hereunder. The Collateral Agent shall have the
sole and exclusive right and authority to (i) act as collateral agent for the
Lenders for purposes of the perfection of all security interests and Liens
created by this Agreement or the Security Documents with respect to all material
items of the Collateral and, subject to the direction of the Required Lenders,
for all other purposes stated therein; (ii) subject to the direction of the
Required Lenders, manage, supervise or otherwise deal with the Collateral; (iii)
except as may be otherwise specifically restricted by the terms of this
Agreement, and subject to the direction of the Required Lenders, exercise all
remedies given to the Collateral Agent with respect to any of the Collateral,
whether arising under the Credit Documents relating thereto, under applicable
law or otherwise; and to undertake all other duties and responsibilities
delegated to it hereunder. As to any matters not expressly provided for
otherwise by this Agreement or any other Credit Document, each Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and thereunder in accordance with instructions signed by the Required Lenders,
and such instructions
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of the Required Lenders to the Collateral Agent in any action taken or failure
to act pursuant thereto shall be binding on all of the Lenders.
SECTION 7.02. Reliance by Agents. Each Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telecopier, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by such Agent.
SECTION 7.03. Defaults. No Agent shall be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of any of the Obligations) unless such Agent has received written
notice from a Lender or any Borrower specifying such Default or Event of Default
and stating that such notice is a "Notice of Default," each of the Lenders
hereby agreeing to promptly notify in writing each Agent of any Default to which
such Lender obtains knowledge. In the event that an Agent receives such a notice
of the occurrence of a Default or an Event of Default, such Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall give each
Lender prompt notice of each nonpayment of any of the Obligations whether or not
it has received any notice of the occurrence of such nonpayment.
SECTION 7.04. Rights of Each Agent and its Affiliates as a
Lender. With respect to any Loans or the other financial accommodations made
pursuant hereto, each Agent in its capacity as a Lender hereunder and any
Affiliate of an Agent or such Affiliate in its capacity as a Lender hereunder
shall have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not acting as an Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
each Agent in its individual capacity and any Affiliate of each Agent in its
individual capacity. Each Agent and any Affiliate of the Agent may (without
having to account therefor to any Lender) accept deposits from, lend money to
and generally engage in any kind of banking, trust or other business with the
Borrower (and any of the Borrower's Affiliates) as if it were not acting as the
Agent, and the Agent and any Affiliate of the Agent may accept fees and other
consideration from the Borrower (and any of Borrower's Affiliates) (in addition
to any agency fees and arrangement fees heretofore agreed to between the
Borrower and the Agent) for services in connection with this Agreement or any
other Credit Document or otherwise without having to account for the same to the
Lenders and Agent shall not be subject to any liability by reason of its acting
or refraining to act pursuant to any request of the Required Lenders except as a
result of its own wilful misconduct or gross negligence.
SECTION 7.05. Indemnification. Each Lender severally agrees to
indemnify each Agent and hold each Agent harmless from, to the extent each Agent
shall not have been reimbursed by the Borrower or any Subsidiary Guarantor,
ratably in accordance with its Pro Rata Share, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits (including,
without limitation, counsel fees and disbursements), and costs and expenses (but
not fees) such Agent may be required to bear with respect to any lockbox or
collateral collection account arrangement, or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against each
Agent in any way relating to or arising out of this Agreement or any other
Credit Document or any other documents contemplated by or
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referred to herein or therein or the transactions contemplated hereby or thereby
(excluding, unless an Event of Default has occurred and is continuing, the
normal out-of-pocket administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or any such other documents; provided that no Lender
shall be liable for any of the foregoing in respect of such Agent to the extent
they arise from the gross negligence or wilful misconduct of such Agent. If any
indemnity furnished to an Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, each Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
SECTION 7.06. Payee of Note Treated as Owner. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent and the provisions of SECTION 10.08(c) have been satisfied. Any requests,
authority or consent of any Person who at the time of making such request or
giving such authority or consent is the holder of any Note shall be conclusive
and binding on any subsequent holder, transferee or assignee of that Note or of
any Note or Notes issued in exchange therefor or replacement thereof.
SECTION 7.07. Nonreliance on Agents or Other Lenders. Each
Lender agrees that it has, independently and without reliance on any Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and each Subsidiary
Guarantor and decision to enter into this Agreement and that it will,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or any of the other Credit Documents. Except as expressly
provided in SECTION 7.03, no Agent shall be required to keep itself (or any
Lender) informed as to the performance or observance by the Borrower of this
Agreement or any of the other Credit Documents or any other document referred to
or provided for herein or therein or to inspect the properties or books of the
Borrower or any Subsidiary Guarantor or any other Person. Except for notices,
reports and other documents and information expressly required to be furnished
to the Lenders by an Agent hereunder or under the other Credit Documents, no
Agent shall have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial condition or
business of the Borrower or any other Person (or any of their Affiliates) which
may come into the possession of such Agent.
SECTION 7.08. Failure to Act. Except for any action expressly
required of each Agent hereunder or under the other Credit Documents, each Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Lenders of their indemnification obligations under SECTION 7.05 against any
and all liability and expense which may be incurred by each Agent by reason of
taking, continuing to take, or failing to take any such action. In any event, if
an Agent requests in writing the authorization or direction of the Required
Lenders (or all Lenders if required) and the Lenders do not timely respond to
such request in writing, such Agent may act or refrain from acting with respect
to the matters set forth in such request by such Agent without liability to any
of the Lenders with respect to such matters.
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SECTION 7.09. Resignation of Agent. Subject to the appointment
and acceptance of a successor Agent as provided below, each Agent may resign at
any time by giving notice thereof to the Lenders, the other Agents and the
Borrower. Upon any such resignation, the Required Lenders shall have the right
to appoint a successor to such Agent, subject to the consent of the Borrower,
only if no Event of Default is in existence, which consent shall not be
unreasonably withheld or delayed. If no successor to such Agent shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's notice of resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent. Any
successor Agent shall be a Lender hereunder or other bank or financial
institution which has a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as an Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this ARTICLE 7 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder.
SECTION 7.10. Joinder of Lenders. The rights, remedies, powers
and privileges conferred upon each Agent hereunder and under the other Credit
Documents may be exercised by each Agent without the necessity of the joinder of
any other parties unless otherwise required by applicable law.
SECTION 7.11. Agreements Regarding Collateral. Each Lender
shall have a pro rata interest, in accordance with its Pro Rata Share, in the
security interests and Liens in and to the Collateral and any other assets
granted and assigned to the Collateral Agent under the Credit Documents. The
Lenders hereby irrevocably authorize the Collateral Agent, at its option and in
its discretion, to release any Lien upon any Collateral (i) as authorized by
this Agreement or any of the other Credit Documents, (ii) upon full payment or
satisfaction of all of the Obligations, or (iii) constituting Equipment
Collateral sold or disposed of in accordance with the terms of this Agreement if
the Borrower shall certify to the Collateral Agent that the disposition is made
in compliance with the terms of this Agreement (and the Collateral Agent may
rely conclusively on any such certificate, without further inquiry). Except as
expressly authorized or required by this Agreement or applicable law, the
Collateral Agent shall not execute any release or termination of any Lien upon
any of the Collateral without the prior written authorization of all Lenders.
The Collateral Agent shall have no obligation whatsoever to any of the Lenders
to assure that any of the Collateral exists or is owned by any Obligor or is
cared for, protected or insured or has been encumbered, or that the Collateral
Agent's Liens have been properly or sufficiently or lawfully created, perfected,
protected or enforced or entitled to any particular priority or to exercise at
all or in any manner or under any duty of care, disclosure or fidelity, or to
continue exercising, any of the rights or powers granted or available to the
Collateral Agent pursuant to this Agreement or any of the other Credit
Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission or event related thereto, the Collateral Agent may act in any
manner it may deem appropriate, in its discretion, given the Collateral Agent's
own interests in the Collateral in its capacity as one of the Lenders.
SECTION 7.12. Agent Field Audits. The Collateral Agent shall
not be obliged to conduct, and have no liability to any Lender for not
conducting, field audits.
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SECTION 7.13. Designation of Co-Collateral Agent. It is the
purpose of this Agreement that there shall be no violation of any applicable law
denying or restricting the right of financial institutions to transact business
as an agent in any jurisdiction. It is recognized that, in case of litigation
under any of the Credit Documents, or in case the Collateral Agent deems that by
reason of present or future laws of any jurisdiction the Collateral Agent might
be prohibited from exercising any of the powers, rights or remedies granted to
the Collateral Agent or the Lenders hereunder or under any of the Credit
Documents or from holding title to or a Lien upon any Collateral or from taking
any other action which may be necessary hereunder or under any of the Credit
Documents, the Collateral Agent may appoint an additional Person or Persons as a
separate collateral agent or co-collateral agent which is not so prohibited from
taking any of such actions or exercising any of such powers, rights or remedies.
If the Collateral Agent shall appoint an additional Person as a separate
collateral agent or co-collateral agent as provided above, each and every
remedy, power, right, claim, demand or cause of action intended by this
Agreement and any of the Credit Documents and every remedy, power, right, claim,
demand or cause of action intended by this Agreement and any of the Credit
Documents to be exercised by or vested in or conveyed to the Collateral Agent
with respect thereto shall be exercisable by and vested in such separate
collateral agent or co-collateral agent, but only to the extent necessary to
enable such separate collateral agent or co-collateral agent to exercise such
powers, rights and remedies, and every covenant and obligation necessary to the
exercise thereof by such separate collateral agent or co-collateral agent shall
run to and be enforceable by any of them. Should any instrument from the Lenders
be required by the separate collateral agent or co-collateral agent so appointed
by the Collateral Agent in order more fully and certainly to vest in and confirm
to him or it such rights, powers, duties and obligations, any and all of such
instruments shall, on request, be executed, acknowledged and delivered by the
Lenders whether or not a Default or Event of Default then exists. In case any
separate collateral agent or co-collateral agent, or a successor to either,
shall die, become incapable of acting, resign or be removed, all the estates,
properties, rights, power, duties and obligations of such separate collateral
agent or co-collateral agent, so far as permitted by applicable law, shall vest
in and be exercised by the Collateral Agent until the appointment of a new
collateral agent or successor to such separate collateral agent or co-collateral
agent.
SECTION 7.14. Replacement of Certain Lenders. If a Lender
("Affected Lender") shall have (i) defaulted with respect to any of its other
obligations to the Agents, or any other Lender, and which such failure or other
default has not been cured, (ii) requested compensation from the Borrower under
SECTION 8.05 to recover increased costs incurred by such Lender (or its parent
or holding company) which are not being incurred generally by the other Lenders
(or their respective parents or holding companies), or (iii) delivered (or its
respective parents or holding companies shall have delivered) a notice pursuant
to ARTICLE 8 claiming that such Lender (or its affiliate) is unable to extend
the Euro-Dollar Loan to the Borrower for reasons not generally applicable to the
other Lenders, then, in any such case and in addition to any other rights and
remedies that any Agent, any other Lender or the Borrower may have against such
Affected Lender, the Borrower or the Administrative Agent may make written
demand on such Affected Lender (with a copy to the Administrative Agent in the
case of a demand by the Borrower and a copy to the Borrower in the case of a
demand by the Administrative Agent) for the Affected Lender to assign, and such
Affected Lender shall assign pursuant to one or more duly executed Assignment
and Acceptances within five (5) Business Days after the date of such demand, to
one or more Lenders willing to accept such assignment or
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assignments, or to one or more Assignees approved by the Administrative Agent,
all of such Affected Lender's rights and obligations under this Agreement
(including its Pro Rata Share of all Obligations owing to it) in accordance with
SECTION 10.08 hereof; provided, however, that the Administrative Agent shall
have no duty to locate an Assignee for the purposes of accepting such
assignment. The Administrative Agent is hereby irrevocably authorized to execute
one or more Assignment and Acceptances as attorney-in-fact for any Affected
Lender which fails or refuses to execute and deliver the same within (5)
Business Days after the date of such demand. The Affected Lender shall be
entitled to receive, in such case and concurrently with execution and delivery
of each such Assignment and Acceptance, all amounts owed to the Affected Lender
hereunder or under any other Credit Document, including the aggregate
outstanding principal amount of the Obligations owed to such Lender, together
with accrued interest thereon through the date of such assignment. Upon the
replacement of any Affected Lender pursuant to this SECTION 7.14, such Affected
Lender shall cease to have any participation in, entitlement to, or other right
to share in the Liens of the Collateral Agent in any Collateral and such
Affected Lender shall have no further liability to any Agent, any Lender or any
other Person under any of the Credit Documents (except with respect to events or
transactions which occur prior to the replacement of such Affected Lender).
ARTICLE 8
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
(a) the Administrative Agent determines that deposits in
Dollars (in the applicable amounts) are not being offered in the relevant market
for such Interest Period, or
(b) the Required Lenders advise the Administrative Agent
that the London Interbank Offered Rate, as the case may be, as determined by the
Administrative Agent will not adequately and fairly reflect the cost to such
Lenders of funding the Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Lenders to make the Loan as a Euro-Dollar Loan specified in
such notice shall be suspended and the Loan shall, instead, be continued as a
Base Rate Loan.
SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein or any
existing or future law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof (any
such agency being referred to as an "Authority" and any such event being
referred to as a "Change of Law"), or compliance by any Lender (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority shall make it unlawful or
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impossible for any Lender (or its Lending Office) to make, maintain or fund the
Loan as a Euro-Dollar Loan and such Lender shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Borrower, whereupon until such Lender notifies the Borrower and
the Administrative Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to make the Loan as a Euro-Dollar
Loan shall be suspended, and the Loan shall, instead, be continued as a Base
Rate Loan. Before giving any notice to the Administrative Agent pursuant to this
SECTION, such Lender shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after
the date hereof, a Change of Law or compliance by any Lender (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board
of Governors of the Federal Reserve System, but excluding with
respect to any Euro-Dollar Loan any such requirement included
in an applicable Euro-Dollar Reserve Percentage) against
assets of, deposits with or for the account of, or credit
extended by, any Lender (or its Lending Office); or
(ii) shall impose on any Lender (or its Lending
Office) or on the London interbank market any other condition
affecting its Euro-Dollar Loan, its Notes or its obligation to
make the Loan as a Euro-Dollar Loan;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Lending Office) of making or maintaining the Loan, or to reduce the
amount of any sum received or receivable by such Lender (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
reasonably deemed by such Lender to be material, then, within thirty (30) days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender shall have determined in good faith
that after the Closing Date the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof, or compliance by any Lender (or
its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would have the
effect of reducing the rate of return on such Lender's capital as a consequence
of its obligations hereunder to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, within thirty (30)
days after demand by such Lender, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
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(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
SECTION and will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not, in
the judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate of any Lender claiming compensation under this SECTION and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
(d) The provisions of this SECTION 8.03 shall be
applicable with respect to any Participant, Assignee or other Transferee, and
any calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
ARTICLE 9
CONDITIONS TO MAKING OF THE LOAN
SECTION 9.01. Conditions to Making the Loan. The obligation of
each Lender to make its Pro Rata Share of the Loan is subject to the
satisfaction of the conditions set forth in SECTION 9.02 and receipt by the
Documentation Agent of the following (in sufficient number of counterparts for
delivery of a counterpart to each Lender and retention of one counterpart by the
Documentation Agent, except for the Notes, of which each Lender shall receive
only its counterpart):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a facsimile
transmission of such executed counterpart, with the original to be sent to the
Documentation Agent by overnight courier;
(b) a duly executed Note for the account of each Lender
in each case complying with the provisions of SECTION 2.02;
(c) an opinion letter (i) (together with any opinions of
local counsel relied on therein) of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the
Borrower, dated as of the Closing Date, substantially in the form of EXHIBIT B
and covering such additional matters relating to the transactions contemplated
hereby as any Agent or any Lender may reasonably request;
(d) an opinion of King & Spalding, special counsel for
the Agents, dated as of the Closing Date, substantially in the form of EXHIBIT C
and covering such additional matters relating to the transactions contemplated
hereby as any Agent may reasonably request;
(e) a certificate (the "Closing Certificate")
substantially in the form of EXHIBIT F, dated as of the Closing Date, signed by
a Senior Officer of the Borrower, to the effect that (i) no Default has occurred
and is continuing on the date of the first borrowing and (ii) the
representations and warranties of the Borrower contained in ARTICLE 4 are true
on and as of the date of the first borrowing hereunder;
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(f) all documents which the Documentation Agent or any
Lender may reasonably request relating to the existence of the Borrower or any
Subsidiary, the corporate authority for and the validity of this Agreement and
the Notes, and any other matters relevant hereto, all in form and substance
satisfactory to the Documentation Agent, including, without limitation, a
certificate of each Obligor substantially in the form of EXHIBIT G (the
"Officer's Certificate"), signed by the Secretary or an Assistant Secretary of
such Obligor, certifying as to the names, true signatures and incumbency of the
officer or officers of the Borrower and each Subsidiary authorized to execute
and deliver the Credit Documents, and certified copies of the following items:
(i) the Borrower's and each Subsidiary's Certificate of Incorporation, (ii) the
Borrower's and each Subsidiary's Bylaws, (iii) a certificate of good standing or
valid existence of the Secretary of State of the State of the jurisdiction of
its incorporation and of each State in which it is qualified to do business as a
foreign corporation, and (iv) the action taken by the Board of Directors of the
Borrower and each Subsidiary authorizing such Borrower's and each Subsidiary's
execution, delivery and performance of this Agreement, the Notes and the other
Credit Documents to which the Borrower and each Subsidiary is a party;
(g) two (2) duly executed counterparts of each of the
Pledge Agreement, each Waiver Agreement requested by the Collateral Agent, and
the Collateral Disclosure Certificate, together with acknowledgment copies of
duly recorded UCC-1 financing statements (satisfactory in form and content to
the Collateral Agent in all respects) pertaining to the Collateral evidencing
recordation thereof in all filing offices deemed necessary by the Collateral
Agent;
(h) receipt of all Mortgages and Mortgage Documentation
required under SECTION 3.03;
(i) receipt of lien searches reasonably acceptable to the
Collateral Agent, showing no Liens other than Permitted Encumbrances;
(j) evidence of insurance as required by this Agreement;
(k) payment of all fees owed to the Agents and the
Lenders hereunder;
(l) receipt of the Warrants and the Warrantholders Rights
Agreement; and
(m) receipt of the Intercreditor Agreement, in form and
substance satisfactory to the Lenders;
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopier number as such party may hereafter specify for the purpose by
notice to each other party. Each such notice, request or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in
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this SECTION and the confirmation is received, (ii) if given by mail, five (5)
Business Days after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this SECTION; provided that notices
to the Administrative Agent under ARTICLE 2 or ARTICLE 8 shall not be effective
until received.
SECTION 10.02. No Waivers. The failure of the Borrower to
satisfy, or the waiver by the Agents and the Lenders of, any condition set forth
in ARTICLE 9 shall not constitute a waiver of any such condition with respect to
any subsequent advance of a Loan, unless such waiver is expressly agreed to in
writing as required by SECTION 10.06. No failure or delay by any Agent or any
Lender in exercising any right, power or privilege hereunder or under any Note
or other Credit Document shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 10.03. Expenses; Documentary Taxes. The Borrower shall
pay (a) all out-of-pocket expenses (including, without limitation, all
reasonable attorney and paralegal fees and expenses, recording costs of the
Agents incurred in connection with this Agreement and the other Credit
Documents, including, without limitation, (i) all costs, fees and taxes
pertaining to the obtaining, preparation or filing of all appraisals, Lien
searches, UCC-1 financing statements (including, without limitation, any release
thereof), recording or intangible taxes (ii) all fees and disbursements of
special counsel for the Lenders and the Agents; (iii) all costs and fees
incurred in connection with the preparation, negotiation, administration and
execution and delivery of this Agreement and the other Credit Documents, and any
waiver or consent hereunder or thereunder or any amendment hereof or thereof or
any Default or alleged Default hereunder or thereunder, (iv) sums paid or
incurred to pay for any amount or to take any action required of the Borrower
hereunder or under this Agreement that the Borrower fails to pay or take; (v)
costs and expenses of preserving and protecting the Collateral; and (b) during
the existence of an Event of Default all costs and expenses of the Agents and
the Lenders (including reasonable attorney and paralegal fees and expenses) paid
or incurred to obtain payment of the Obligations, enforce the Liens in the
Collateral, sell or otherwise realize upon the Collateral, and otherwise enforce
the provisions hereof or of any Credit Document or to defend any claim made or
threatened against any of the Agents or the Lenders arising out of the
transactions contemplated hereby (including, without limitation, preparations
for and consultations concerning any such matters). The foregoing shall not be
construed to limit any other provisions hereof, or of any Credit Document
regarding costs and expenses to be paid by the Borrower or any Subsidiary. In
the event that the Borrower or any Subsidiary Guarantor becomes a debtor under
the Bankruptcy Code, each Agent's and each Lender's secured claim in such case
shall include interest on the Obligations and all fees, costs and charges
provided for herein (including, without limitation, reasonable attorneys' fees
actually incurred), all to the extent allowed by the Bankruptcy Code. The
Borrower shall indemnify the Agents and the Lenders against any transfer taxes,
documentary taxes, assessments or charges made by any Authority by reason of the
execution and delivery of this Agreement or the other Credit Documents.
SECTION 10.04. Indemnification. The Borrower shall indemnify
the Agents, the Lenders and each Affiliate thereof and their respective
directors, officers, employees and
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agents from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject, insofar
as such losses, liabilities, claims or damages arise out of or result from any
actual or proposed use by the Borrower or any Subsidiary of the proceeds of any
extension of credit by any Agent or any Lender hereunder or breach by the
Borrower or any Subsidiary of this Agreement or any other Credit Document or
from any investigation, litigation (including, without limitation, any actions
taken by any Agent or any Lender to enforce this Agreement or any of the other
Credit Documents) or other proceeding (including, without limitation, any
threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse each Agent and each Lender, and each Affiliate thereof
and their respective directors, officers, employees and agents, upon demand for
any expenses (including, without limitation, legal fees) incurred in connection
with any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or wilful misconduct of the Person (or agent thereof) to be
indemnified.
SECTION 10.05. Setoff; Sharing of Setoffs. (a) Each Obligor
hereby grants to each Agent and each Lender a Lien on all Obligations owing to
them from the Borrower upon all deposits or deposit accounts, of any kind, or
any interest in any deposits or deposit accounts thereof, now or hereafter
pledged, mortgaged, transferred or assigned to any Agent or any such Lender or
otherwise in the possession or control of any Agent or any such Lender for any
purpose for the account or benefit of such Obligor and including any balance of
any deposit account or of any credit of any such Obligor with any Agent or any
such Lender, whether now existing or hereafter established hereby authorizing
any Agent or such Lender at any time or times with or without prior notice to
apply such balances or any part thereof to such of the Obligations as are owing
to such Agent or Lender, then past due and in such amounts as they may elect,
and whether or not the Collateral or any other collateral, if any, or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. The Collateral Agent appoints, authorizes and directs each
other Agent and each Lender to act as a co-collateral agent for the Collateral
Agent with respect to any Balances Collateral held by such Person from time to
time. For the purposes of this paragraph, all remittances and property shall be
deemed to be in the possession of any Agent or any Lender as soon as the same
may be put in transit to it by mail or carrier or by other bailee.
(b) Each Lender agrees that if it shall, by exercising
any such right of setoff or counterclaim or resort to collateral security or
otherwise, receive payment of a proportion of the aggregate amount of the
Obligations in respect of the Loans which is greater than its Pro Rata Shares,
the Lender receiving such proportionately greater payment shall purchase such
participations in the Loan owing to such other Lenders, and such other
adjustments shall be made, as may be required so that all such payments shall be
shared by the Lenders and the Administrative Agent pro rata; provided that (i)
nothing in this SECTION shall impair the right of any Lender to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Loans, and (ii) if all or any portion of such payment so
received by the purchasing Lender is thereafter recovered, such purchase from
each other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price of such participation to the extent of such
recovery together with an amount equal to such other Lender's ratable share
(according to the proportion of (x) the amount of such other Lender's required
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repayment to (y) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. Each Obligor agrees, to the fullest extent it
may effectively do so under applicable law, that any holder of a participation
in a Loan, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Obligor in the amount of such participation.
SECTION 10.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes or any other Credit Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower, each Subsidiary Guarantor and the Required Lenders (and, if the rights
or duties of any Agent are affected thereby, by such Agent); provided that no
such amendment or waiver shall, unless signed by all Lenders, (i) subject any
Lender to any additional obligation, (ii) change the principal of or rate of
interest on the Loan or any fees (other than fees payable to any Agents)
hereunder, (iii) change the Termination Date or any other date fixed for any
payment of principal of or interest on the Loan or any fees hereunder, (iv)
change the amount of principal, interest or fees due on any date fixed for the
payment thereof, (v) change the percentage of the aggregate unpaid principal
amount of the Notes, or the percentage of Lenders, which shall be required for
the Lenders or any of them to take any action under this SECTION or any other
provision of this Agreement, (vi) change the manner of application of any
payments made under this Agreement or the Notes, or the provisions with respect
to pro rata treatment among Lenders (including, without limitation, as to
sharing of payments and expenses), (vii) except as expressly provided in this
Agreement or any of the other Credit Documents, release or substitute, or agree
to subordination of, all or any substantial part of the Collateral, (viii)
release any Guarantee given to support payment of the Loans, (ix) change the
definition of "Required Lenders"; (x) change the provisions of any of ARTICLE 7
or SECTIONS 10.04 or 10.20, (xi) change the joint and several nature of the
obligations of the Borrower and each Subsidiary Guarantor, or the several nature
of the obligations of the Lenders hereunder, or (xii) change the dollar amounts
set forth in clause (ii)(a) and (iii) of the definition of Obligations.
(b) The Borrower will not solicit, request or negotiate
for or with respect to any proposed waiver or amendment of any of the provisions
of this Agreement except through the Administrative Agent, or unless each Lender
shall be informed thereof by the Borrower and shall be afforded an opportunity
of considering the same and shall be supplied by the Borrower with sufficient
information to enable it to make an informed decision with respect thereto.
Executed or true and correct copies of any waiver or consent effected pursuant
to the provisions of this Agreement shall be delivered by the Borrower to the
Administrative Agent (for distribution to each Lender) forthwith following the
date on which the same shall have been executed and delivered by the requisite
percentage of Lenders. The Borrower will not, directly or indirectly, pay or
cause to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any Lender (in its capacity as such) as
consideration for or as an inducement to the entering into by such Lender of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Lenders.
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SECTION 10.07. No Margin Stock Collateral. Each of the Lenders
represents to each Agent and each of the other Lenders that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 10.08. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that neither the
Borrower nor any Subsidiary Guarantor may assign or otherwise transfer any of
its rights under this Agreement.
(b) Any Lender may at any time sell to one or more
Non-Conflicted Persons (each a "Participant") participating interests in the Pro
Rata Share of the Loan owing to such Lender, the Note held by such Lender or any
other interest of such Lender hereunder. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
its Note for all purposes under this Agreement, and the Borrower and the Agents
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. In no event shall a
Lender that sells a participation be obligated to the Participant to take or
refrain from taking any action hereunder except that such Lender may agree that
it will not (except as provided below), without the consent of the Participant,
agree to (i) the change of any date fixed for the payment of principal of or
interest on the related loan or loans, (ii) the change of the amount of any
principal, interest or fees due on any date fixed for the payment thereof with
respect to the related loan or loans, (iii) the change of the principal of the
related loan or loans, (iv) any change in the rate at which either interest is
payable thereon or (if the Participant is entitled to any part thereof) fee is
payable hereunder from the rate at which the Participant is entitled to receive
interest or fee (as the case may be) in respect of such participation, (v) the
release or substitution of all or any substantial part of the Collateral (if
any) held as security for the Loan, or (vi) the release of any Guarantee given
to support payment of the Loan. Each Lender selling a participating interest in
the Loan under this Agreement, will, within ten (10) Domestic Business Days of
such sale, provide the Borrower and the Administrative Agent with written
notification stating that such sale has occurred and identifying the Participant
and the interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of ARTICLE 8 with respect to its
participation in Loans outstanding from time to time.
(c) Any Lender may at any time assign to one or more
Non-Conflicted Persons (each an "Assignee") all or a proportionate part of its
rights and obligations under this Agreement, the Note and the other Credit
Documents; and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance, executed by such Assignee, such
transferor Lender and the Administrative Agent (and, in the case of an Assignee
that is not then a Lender, by the Borrower); provided that: Upon (A) execution
of the Assignment and Acceptance by such transferor Lender, such Assignee, the
Administrative Agent and (if applicable) the Borrower, (B) delivery of an
executed copy of the Assignment and Acceptance to the Borrower and the
Administrative Agent, (C) payment by such Assignee to such transferor Lender of
an amount equal to the purchase price agreed between such transferor Lender and
such Assignee, and (D) payment of a processing and recordation fee of Three
Thousand Dollars
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($3,000) to the Administrative Agent, such Assignee shall for all purposes be a
Lender party to this Agreement and shall have all the rights and obligations of
a Lender under this Agreement to the same extent as if it were an original party
hereto with a Pro Rata Share of the Loan as set forth in such instrument of
assumption, and the transferor Lender shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by the
Borrower, the Lenders or the Agents shall be required. Upon the consummation of
any transfer to an Assignee pursuant to this paragraph (c), the transferor
Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to each of such Assignee
and such transferor Lender.
(d) Subject to the provisions of SECTION 10.09, the
Borrower authorizes each Lender and each Agent to disclose to any Participant,
Assignee or other transferee (each a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession
concerning the Borrower which has been delivered to such Lender or Agent by the
Borrower pursuant to this Agreement or which has been delivered to such Lender
or Agent by the Borrower in connection with such Lender's or Agent's credit
evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any
greater payment under SECTION 2.08 or 8.03 than the transferor would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Borrower's prior written consent or by reason of the provisions
of SECTION 2.08, 8.02 or 8.03 requiring such Lender to designate a different
Lending Office under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
(f) Anything in this SECTION 10.08 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of the Loan
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Lender in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect of such assigned Loan and/or
obligations to the extent of such payment. No such assignment shall release the
assigning and/or pledging Lender from its obligations hereunder.
SECTION 10.09. Confidentiality. Each Lender agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by the Borrower to it pursuant to SECTION 4.04 or 5.01, or any other
information which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Agent
or Lender who are or are expected to become engaged in evaluating, approving,
structuring or administering the transactions contemplated hereby ; provided
that nothing herein shall prevent any Agent or Lender from disclosing such
information (i) to any other Agent or Lender, (ii) upon the order of any court
or administrative agency, (iii) upon the request or demand of any regulatory
agency or authority having jurisdiction over such Agent or Lender, (iv) which
has been publicly disclosed, (v) to the extent reasonably required in connection
with any litigation to which any Agent or Lender or their respective Affiliates
may be a party, (vi) to the extent reasonably required in connection with the
exercise of any remedy hereunder, (vii) to
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such Agent's or Lender's legal counsel and independent auditors and (viii) to
any actual or proposed Participant, Assignee or other Transferee of all or part
of its rights hereunder which has agreed in writing to be bound by the
provisions of this SECTION 10.09; provided that should disclosure of any such
confidential information be required by virtue of clause (ii) of the immediately
preceding sentence, to the extent permitted by law, any relevant Agent or Lender
shall promptly notify the Borrower of same so as to allow the Borrower to seek a
protective order or to take any other appropriate action; provided, further,
that, no Agent or Lender shall be required to delay compliance with any
directive to disclose any such information so as to allow the Borrower to effect
any such action.
SECTION 10.10. Representation by Lenders. Each Lender hereby
represents that it is a commercial Lender or financial institution which makes
loans in the ordinary course of its business and that it will make its Loans
hereunder for its own account in the ordinary course of such business; provided
that, subject to SECTION 10.08, the disposition of the Note or Notes held by
that Lender shall at all times be within its exclusive control.
SECTION 10.11. Obligations Several. The obligations of each
Lender and each Agent hereunder are several, and no Agent or Lender shall be
responsible for the obligations or commitment of any other Lender or Agent
hereunder. Nothing contained in this Agreement and no action taken by any Agent
or Lender pursuant hereto shall be deemed to constitute any of them to be a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Agent or Lender hereunder shall be
a separate and independent Debt, and each Agent or Lender shall be entitled to
protect and enforce its rights arising out of this Agreement or any other Credit
Document and it shall not be necessary for any other Agent or Lender to be
joined as an additional party in any proceeding for such purpose.
SECTION 10.12. Georgia Law. This Agreement, each Note and each
other Credit Documents shall be construed in accordance with and governed by the
internal laws of the State of Georgia.
SECTION 10.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Credit
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 10.14. Interest. (a) In no event shall the amount of
interest, and all charges, amounts or fees contracted for, charged or collected
pursuant to this Agreement, the Notes or the other Credit Documents and deemed
to be interest under applicable law (collectively, "Interest") exceed the
highest rate of interest allowed by applicable law (the "Maximum Rate"), and in
the event any such payment is inadvertently received by any Lender, then the
excess sum (the "Excess") shall be credited as a payment of principal, unless
the Borrower shall notify such Lender in writing that it elects to have the
Excess returned forthwith. It is the express intent hereof that the Borrower not
pay and the Lenders and the Agents not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may legally be paid by the
Borrower under applicable law. The right to accelerate maturity of any of the
Loans does not include the right to accelerate any interest that has not
otherwise accrued on
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the date of such acceleration, and the Administrative Agent and the Lenders do
not intend to collect any unearned interest in the event of any such
acceleration. All monies paid to any Agent or any Lender hereunder or under any
of the Notes or the other Credit Documents, whether at maturity or by
prepayment, shall be subject to rebate of unearned interest as and to the extent
required by applicable law. By the execution of this Agreement, the Borrower
covenants, to the fullest extent permitted by law, that (i) the credit or return
of any Excess shall constitute the acceptance by the Borrower of such Excess,
and (ii) the Borrower shall not seek or pursue any other remedy, legal or
equitable, against any Agent or Lender, based in whole or in part upon
contracting for charging or receiving any Interest in excess of the Maximum
Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by any Agent or Lender, all interest at any
time contracted for, charged or received from the Borrower in connection with
this Agreement, the Notes or any of the other Credit Documents shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
in equal parts throughout the full term of the Loan. The Borrower, the Agents
and the Lenders each shall, to the maximum extent permitted under applicable
law, (i) characterize any non-principal payment as an expense, fee or premium
rather than as Interest and (ii) exclude voluntary prepayments and the effects
thereof. The provisions of this SECTION shall be deemed to be incorporated into
each Note and each of the other Credit Documents (whether or not any provision
of this SECTION is referred to therein). All such Credit Documents and
communications relating to any Interest owed by the Borrower and all figures set
forth therein shall, for the sole purpose of computing the extent of obligations
hereunder and under the Notes and the other Credit Documents be automatically
recomputed by the Borrower, and by any court considering the same, to give
effect to the adjustments or credits required by this SECTION.
(b) Pursuant to O.C.G.A. ss.7-4-2, the Borrower the
Agents and the Lenders hereby agree that the only changes imposed or to be
imposed by the Agents or the Lenders upon the Borrower for the use of money in
connection with the Loans is and will be the interest required to be paid under
the provisions of SECTION 2.04 of this Agreement and the related provisions of
the Notes, and that the fees payable pursuant to SECTION 2.05 are and shall be
deemed to be compensation for services and are not and shall not be deemed to be
interest or any other charge for the use, forbearance or detention of money.
SECTION 10.15. Interpretation. No provision of this Agreement
or any of the other Credit Documents shall be construed against or interpreted
to the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 10.16. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION.
EACH OF THE BORROWER, THE LENDERS AND THE AGENTS IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF THIS AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS, OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, (B) SUBMITS TO THE
NONEXCLUSIVE PERSONAL JURISDICTION IN THE STATE OF GEORGIA, THE COURTS THEREOF
AND THE UNITED STATES DISTRICT COURTS SITTING THEREIN, FOR THE ENFORCEMENT OF
THIS AGREEMENT, THE NOTES AND THE OTHER CREDIT DOCUMENTS, (C) WAIVES ANY AND ALL
PERSONAL RIGHTS UNDER THE LAW OF
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ANY JURISDICTION TO OBJECT ON ANY BASIS (INCLUDING, WITHOUT LIMITATION,
INCONVENIENCE OF FORUM) TO JURISDICTION OR VENUE WITHIN THE STATE OF GEORGIA FOR
THE PURPOSE OF LITIGATION TO ENFORCE THIS AGREEMENT, THE NOTES OR THE OTHER
CREDIT DOCUMENTS, AND (D) AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN
THE MANNER PRESCRIBED IN SECTION 10.01 FOR THE GIVING OF NOTICE TO THE
BORROWERS. NOTHING HEREIN CONTAINED, HOWEVER, SHALL PREVENT ANY AGENT FROM
BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND AGAINST
THE BORROWERS PERSONALLY, AND AGAINST ANY ASSETS OF THE BORROWERS, WITHIN ANY
OTHER STATE OR JURISDICTION.
SECTION 10.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.18. Source of Funds -- ERISA. Each of the Lenders
hereby severally (and not jointly) represents to the Borrower that no part of
the funds to be used by such Lender to fund the Loans hereunder from time to
time constitutes (i) assets allocated to any separate account maintained by such
Lender in which any employee benefit plan (or its related trust) has any
interest nor (ii) any other assets of any employee benefit plan. As used in this
SECTION, the terms "employee benefit plan" and "separate account" shall have the
respective meanings assigned to such terms in SECTION 3 of ERISA.
SECTION 10.19. Credit Inquiries. The Borrower hereby
authorizes and permits each Agent and Lender, at its discretion and without any
obligation to do so, to respond to credit inquiries from third parties
concerning the Borrower or any of its Subsidiaries.
SECTION 10.20. Consequential Damages. NONE OF THE LENDERS, NOR
ANY OF THE AGENTS SHALL BE RESPONSIBLE OR LIABLE TO THE BORROWER OR ANY OTHER
PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY
BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 10.21. Entire Agreement. This Agreement, together with
the other Loan Documents, constitute the entire agreement among the parties
hereto with respect to the subject matter hereof, and supersede and replace any
agreement, written or oral, existing between or among the parties hereto in
respect of such subject matter, to the extent in conflict herewith or therewith.
Without limitation, (i) the Prior Loan Agreement, together with all "Loan
Documents" (as defined therein) executed in connection therewith, are, subject
to the following proviso, superseded and replaced, in their entirety, hereby and
by the other Loan Documents; and (ii) any "Event of Default" (as defined
therein) under the Prior Loan Agreement heretofore existing, is hereby waived by
the Lenders; provided, however, that, notwithstanding the foregoing, it is the
mutual understanding, intent and agreement of all Parties that (i) this
Agreement and the other Loan Document does not, and shall not, constitute a
novation, and (iii) collectively, all UCC financing statements, amendments
thereto, continuations thereof and assignments thereof, all collateral
assignments of patents, patent rights, trademarks and
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trademark rights, all Existing Mortgages, and all other "Security Documents"
(as that term is defined in the Prior Loan Agreement) heretofore executed in
favor of, and filed of record by, the Collateral Agent as against any Obligor
pursuant to the Prior Loan Agreement are and shall remain in full force and
effect and be carried over and continued automatically hereby; i.e., without
necessity of any further act or deed on the part of any Obligor or Collateral
Agent, all in respect of the Collateral and the Obligations secured thereby
hereunder and shall continue to constitute Security Documents for all purposes
hereof.
SECTION 10.22. Continuing Effect. This Agreement, together
with all other Credit Documents, shall continue in full force and effect unless
and until all Obligations have been fully paid and satisfied, each in accordance
with the terms and conditions hereof and of the other Credit Documents.
SECTION 10.23. Intercreditor Agreement. If and to the extent
that any terms of this Agreement or any Credit Document are in conflict with, or
contradict, any terms of the Intercreditor Agreement, then, so long as the
Intercreditor Agreement shall remain in effect, the terms of the Intercreditor
Agreement shall be controlling; and, without limitation, to the extent that any
Obligor pays, observes or performs any duty or obligation in a manner consistent
with the terms of the Intercreditor Agreement, the same shall not constitute a
breach of any contrary duty or obligation to be paid, observed or performed
hereunder.
[SIGNATURES ARE CONTAINED ON THE FOLLOWING PAGES.]
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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.
"BORROWER"
THOMASTON ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (SEAL)
-----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Attest: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇
----------------------------
A. ▇▇▇▇▇▇▇ ▇▇▇
Vice President-Finance
(CORPORATE SEAL)
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President-Finance
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No. (▇▇▇) ▇▇▇-▇▇▇▇
With Copy(ies) to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No. (▇▇▇) ▇▇▇-▇▇▇▇
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"SUBSIDIARY GUARANTOR"
THOMASTON ▇▇▇▇▇ FSC, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (SEAL)
-----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Attest: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇
--------------------------
A. ▇▇▇▇▇▇▇ ▇▇▇
Vice President-Finance
(CORPORATE SEAL)
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President-Finance
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No. (▇▇▇) ▇▇▇-▇▇▇▇
With Copy(ies) to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No. (▇▇▇) ▇▇▇-▇▇▇▇
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PRO RATA SHARE: 40.5% SUNTRUST BANK, ATLANTA,
as Administrative Agent,
Initial: __________ Syndication Agent and as a Lender,
and as Agent for SunTrust Equitable
Securities Corporation (SEAL)
By: /s/
--------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Lending Office
SunTrust Bank, Atlanta
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation Number: (▇▇▇) ▇▇▇-▇▇▇▇
With Copy(ies) to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation Number: ▇▇▇-▇▇▇-▇▇▇▇
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PRO RATA SHARE: 40.5% WACHOVIA BANK, N.A.,
as Documentation Agent and
Initial: __________ Collateral Agent, and as a Lender (SEAL)
By: /s/
--------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Lending Office
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Mail Code 212
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Leveraged Finance
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
With Copy(ies) to:
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
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PRO RATA SHARE: 19% BANK OF AMERICA, N.A.
as a Lender (SEAL)
Initial: __________
By: /s/
--------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Lending Office
Bank of America, N.A.
Bank of America Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Register, V.P.
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation Number: (▇▇▇) ▇▇▇-▇▇▇▇
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FIRST AMENDMENT TO
AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
Preamble. THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY
AGREEMENT (hereinafter, together with all schedules and exhibits hereto, and
any supplements, additions, modifications or amendments thereto made from time
to time called the "First Amendment"), dated as of September 10, 1999 (the
"First Amendment Date"), is made by and among THOMASTON ▇▇▇▇▇, INC., a Georgia
corporation (hereinafter, together with its successors and permitted assigns
called the "Borrower"); THOMASTON ▇▇▇▇▇ FSC, INC., a U.S. Virgin islands
corporation (hereafter, together with its successors and permitted assigns,
called "FSC"); BANK OF AMERICA, N.A., f/k/a NATIONSBANK, N.A., a national
banking association (hereinafter, together with its successors and permitted
assigns, called "BOFA", BOFA, together with SunTrust and Wachovia, each as
hereinafter defined, called collectively, the "Lenders" and, individually, a
"Lender"); SUNTRUST BANK, ATLANTA, a Georgia banking corporation (hereinafter,
together with its successors and permitted assigns, called "SunTrust"),
individually and as "Administrative Agent" and "Syndication Agent" (as those
terms are defined in the Credit Agreement defined below), on behalf of the
Lenders; WACHOVIA BANK, N.A., a national banking association (hereinafter,
together with its successors and permitted assigns, called "Wachovia"),
individually and as "Documentation Agent" and "Collateral Agent" (as those
terms are defined in the Credit Agreement defined below), on behalf of the
Lenders; and SUNTRUST EQUITABLE SECURITIES CORPORATION, a Tennessee corporation
(hereinafter, together with its successors and permitted assigns called
"SunTrust Equitable Securities"), as "Arranger" and "Lead Manager" (as those
terms are defined in the Credit Agreement defined below), on behalf of the
Lenders.
The Borrower, FSC, SunTrust (in its respective capacities described
above), Wachovia (in its respective capacities described above), BOFA as a
Lender and SunTrust Equitable Securities (in its respective capacities
described above) (the foregoing parties herein sometimes collectively called
the "Parties" and individually called a "Party") are Parties to a certain
Amended and Restated Credit and Security Agreement, dated as of July 27, 1999
(which is, as amended to date pursuant to the First Amendment, called herein
the "Credit Agreement"), pursuant to which, among other things, the Lenders
agreed to extend credit and other financial accommodations to the Borrower.
The Parties have agreed to modify and amend the Credit Agreement in the
manner, and subject to the terms and conditions, set forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the Parties,
each intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this First Amendment and
not defined herein are defined in the Credit Agreement.
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SECTION 2. Amendments to Credit Agreement.
(a) Section 2.04(a) of the Credit Agreement is hereby amended by changing
the first sentence thereof, which presently reads:
Accrued interest on the Loan at the Pay Rate shall be due and
payable monthly in arrears, on the last day of each calendar
month, beginning on July 31, 1999, and continuing on a monthly
basis thereafter until the Loan is paid in full, and at maturity.
to read, instead, as follows:
Accrued interest on the Loan at the Pay Rate shall be due and
payable monthly in arrears, on the first day of each calendar
month, for the preceding calendar month, beginning on August 1,
1999, and continuing on a monthly basis thereafter until the Loan
is paid in full, and at maturity.
(b) Section 5.20(b) (Tangible Net Worth) is hereby amended by changing
the table set forth therein, which presently reads:
As of the Fiscal Month Ended Tangible Net Worth:
Closest to:
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July 31, 1999 $43,675,000
August 31, 1999 $42,778,000
September 30, 1999 $41,664,000
October 31, 1999 $41,254,000
November 30, 1999 $40,615,000
December 31, 1999 $39,384,000
January 31, 2000 $38,929,000
February 28, 2000 $38,557,000
March 31, 2000 $37,945,000
April 30, 2000 $37,867,000
May 31, 2000 $37,865,000
June 30, 2000 $37,639,000
to read instead, as follows:
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As of the Fiscal Month Ended Tangible Net Worth:
Closest to:
---------------------------- -------------------
July 31, 1999 $34,025,000
August 31, 1999 $33,128,000
September 30, 1999 $32,014,000
October 31, 1999 $31,604,000
November 30, 1999 $30,965,000
December 31, 1999 $29,734,000
January 31, 2000 $29,279,000
February 28, 2000 $28,907,000
March 31, 2000 $28,295,000
April 30, 2000 $28,217,000
May 31, 2000 $28,215,000
June 30, 2000 $27,989,000
(c) As to each Credit Document existing on the Closing Date, to the extent
that it bears an execution date (or refers to an execution date for
any other Credit Document) earlier than "July 27, 1999," shall be
deemed modified and amended hereby to reflect an execution date for
all such purposes, in each such instance, of "July 27, 1999" and,
henceforth, each such Credit Document shall be referred to by such
later date (the foregoing being necessitated by a change in the
Closing Date from July 23, 1999 to July 27, 1999 after certain Credit
Documents were executed on, and dated as of, July 23, 1999, pursuant
to a pre-closing occurring on such date).
(d)
SECTION 3. REPRESENTATIONS AND WARRANTIES OF OBLIGORS. The Borrower and
FSC, each severally, represents and warrants to the other Parties that:
(a) It has the power and authority to enter into and to perform this First
Amendment, to execute and deliver all documents relating to this First
Amendment, and or incur the obligations provided for in this First
Amendment, all of which have been duly authorized and approved in
accordance with its corporate documents;
(b) This First Amendment, together with all documents executed pursuant
hereto, shall constitute when executed its valid and legally binding
obligations in accordance with their respective terms;
(c) All representations and warranties made by it in the Credit Agreement
are true and correct as of the date hereof, with the same force and
effect as if all representations and warranties were fully set forth
herein;
(d) Its Obligations under the Credit Documents remain valid and
enforceable Obligations, and the execution and delivery of this First
Amendment and the other documents executed in connection herewith
shall not be construed as a novation of the Credit Agreement or any of
the other Credit Documents;
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(e) As of the date hereof, it has no offsets, defenses or counterclaims
against the payment of any of the Obligations; and
(f) As of the First Amendment Date, and after giving effect to the terms
hereof, no Default Condition or Event of Default exists.
SECTION 4. Waiver of Claims. As a specific inducement to the other Parties
without which the Borrower and FSC acknowledge the other Parties would not
enter into this First Amendment and the other documents executed in connection
herewith, each of the Borrower and FSC hereby waives any and all claims that it
may have against any other Party, as of the date hereof, arising out of or
relating to the Credit Agreement or any other Credit Document whether sounding
in contract, tort, or any other basis.
SECTION 5. Conditions of Effectiveness. This First Amendment shall become
effective when, and only when, the Documentation Agent shall have received this
First Amendment, executed by each Party, at which time the amendments set forth
in Section 2 above shall become effective, retroactive to the Closing Date.
SECTION 6. Miscellaneous.
6.1 Reference to Credit Agreement. Upon the effectiveness of this
Credit Agreement, each reference in the Credit Agreement to "this Credit
Agreement" and each reference in the other Credit Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby.
6.2 Effect on Credit Documents. Except as specifically amended above,
all terms of the Credit Agreement and all other Credit Documents shall remain
in full force and effect and are hereby ratified and confirmed.
6.3 No Waiver. The execution, delivery and effectiveness of this
First Amendment shall not operate as a waiver of any right, power, or remedy of
Lenders or the Agents under any of the Credit Documents, nor constitute a
waiver of any provision of any of the Credit Documents.
6.4 Costs, Expenses and Taxes. The Borrower agrees to pay on demand
all costs and expenses of the Agents and the Lenders in connection with the
preparation, reproduction, execution, and delivery of this First Amendment and
the other instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Agent and the
Lenders with respect hereto.
6.5 No Novation. Nothing contained herein intended, or shall be
construed, to constitute a novation to the Credit Agreement or any Credit
Document.
6.6 Governing Law. This First Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia, without giving
affect to conflict of law provisions.
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IN WITNESS WHEREOF, the Parties have caused this First Amendment to be
duly executed, under seal, by their respective authorized officers as of the
day and year first above written.
"BORROWER"
THOMASTON ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (SEAL)
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Attest: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇
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A. ▇▇▇▇▇▇▇ ▇▇▇
Vice President-Finance
(CORPORATE SEAL)
"SUBSIDIARY GUARANTOR"
THOMASTON ▇▇▇▇▇ FSC, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (SEAL)
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Attest: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇
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A. ▇▇▇▇▇▇▇ ▇▇▇
Vice President-Finance
(CORPORATE SEAL)
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SUNTRUST BANK, ATLANTA,
as Administrative Agent,
Syndication Agent and as a Lender (SEAL)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: VP
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: AVP
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(CORPORATE SEAL)
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WACHOVIA BANK, N.A.,
as Documentation Agent,
Collateral Agent, and as a Lender [SEAL]
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
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BANK OF AMERICA,
as a Lender (SEAL)
By: /s/ ▇▇▇▇ ▇. Register
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Name: ▇▇▇▇ ▇. Register
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Title: Principal
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