EXECUTION COUNTERPART
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AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 13, 1995
among
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.,
THE LENDERS LISTED HEREIN,
and
SUNTRUST BANK, NASHVILLE, N. A.
(formerly known as Third National Bank in Nashville),
as Agent
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TABLE OF CONTENTS
Page No.
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS: CONSTRUCTION
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . 1
Section 1.02 Accounting Terms and Determination . . . . . . 17
Section 1.03 Other Definitional Terms . . . . . . . . . . . 18
Section 1.04 Exhibits and Schedules . . . . . . . . . . . . 18
ARTICLE II
REVOLVING LOANS
Section 2.01 Revolving Loan Commitment . . . . . . . . . . 18
Section 2.02 Use of Proceeds . . . . . . . . . . . . . . . 18
Section 2.03 Revolving Credit Notes:
Repayment of Principal . . . . . . . . . . . . 19
Section 2.04 Automatic, Mandatory Reduction
of Revolving Loan Commitments . . . . . . . . 19
Section 2.05 Mandatory Reduction of Revolving
Loan Commitments Regarding Senior Debt . . . . 19
Section 2.06 Mandatory Reduction of Revolving
Loan Commitments Regarding Asset Sales . . . . 20
Section 2.07 Voluntary Reduction of Revolving
Loan Commitments . . . . . . . . . . . . . . . 20
Section 2.08 Extension of Initial Reduction Date
and Final Maturity Date . . . . . . . . . . . 21
ARTICLE III
GENERAL REVOLVING LOAN TERMS
Section 3.01 Funding Notices . . . . . . . . . . . . . . . 22
Section 3.02 Disbursement of Funds . . . . . . . . . . . . 23
Section 3.03 Interest . . . . . . . . . . . . . . . . . . . 24
Section 3.04 Interest Periods . . . . . . . . . . . . . . . 24
Section 3.05 Fees . . . . . . . . . . . . . . . . . . . . . 25
Section 3.06 Voluntary Prepayments of
Borrowings . . . . . . . . . . . . . . . . . . 25
Section 3.07 Payments, etc. . . . . . . . . . . . . . . . . 26
Section 3.08 Interest Rate Not Ascertainable, etc. . . . . 28
Section 3.09 Illegality . . . . . . . . . . . . . . . . . . 29
Section 3.10 Increased Costs . . . . . . . . . . . . . . . 29
Section 3.11 Lending Offices . . . . . . . . . . . . . . . 31
Section 3.12 Funding Losses . . . . . . . . . . . . . . . . 31
Section 3.13 Assumptions Concerning Funding
of LIBOR Advances . . . . . . . . . . . . . . 31
Section 3.14 Apportionment of Payments . . . . . . . . . . 32
Section 3.15 Sharing of Payments, Etc. . . . . . . . . . . 32
Section 3.16 Capital Adequacy . . . . . . . . . . . . . . . 32
Section 3.17 Benefits to Guarantors . . . . . . . . . . . . 33
Section 3.18 Limitation on Certain Payment
Obligations . . . . . . . . . . . . . . . . . 33
ARTICLE IV
CONDITIONS TO BORROWINGS
Section 4.01 Conditions Precedent to Initial
Revolving Loans . . . . . . . . . . . . . . . 34
Section 4.02 Conditions to Revolving Loans . . . . . . . . 37
ARTICLE V
NOTICE PERIOD REGARDING CONDITIONS . . . . . . . . . . . . . 38
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01 Corporate Existence; Compliance
with Law . . . . . . . . . . . . . . . . . . . 40
Section 6.02 Corporate Power; Authorization . . . . . . . . 40
Section 6.03 Enforceable Obligations . . . . . . . . . . . 40
Section 6.04 No Legal Bar . . . . . . . . . . . . . . . . . 41
Section 6.05 No Material Litigation . . . . . . . . . . . . 41
Section 6.06 Investment Company Act, Etc. . . . . . . . . . 41
Section 6.07 Margin Regulations . . . . . . . . . . . . . . 41
Section 6.08 Compliance With Environmental Laws . . . . . . 41
Section 6.09 Insurance . . . . . . . . . . . . . . . . . . 42
Section 6.10 No Default . . . . . . . . . . . . . . . . . . 42
Section 6.11 No Burdensome Restrictions . . . . . . . . . . 42
Section 6.12 Taxes . . . . . . . . . . . . . . . . . . . . 42
Section 6.13 Subsidiaries . . . . . . . . . . . . . . . . . 43
Section 6.14 Financial Statements . . . . . . . . . . . . . 43
Section 6.15 ERISA . . . . . . . . . . . . . . . . . . . . 44
Section 6.16 Patents, Trademarks, Licenses, Etc. . . . . . 45
Section 6.17 Ownership of Property . . . . . . . . . . . . 45
Section 6.18 Indebtedness . . . . . . . . . . . . . . . . . 45
Section 6.19 Financial Condition . . . . . . . . . . . . . 46
Section 6.20 Labor Matters . . . . . . . . . . . . . . . . 46
Section 6.21 Payment or Dividend Restrictions . . . . . . . 47
Section 6.22 Disclosure . . . . . . . . . . . . . . . . . . 47
Section 6.23 Financial Covenants . . . . . . . . . . . . . 47
ARTICLE VII
REPRESENTATION AND WARRANTY NOTICE PERIOD . . . . . . . . . . 47
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES REGARDING
ARTICLE VIII SUBSIDIARIES . . . . . . . . . . . . . . . . . . 48
ARTICLE IX
AFFIRMATIVE COVENANTS
Section 9.01 Corporate Existence, Etc. . . . . . . . . . . 48
Section 9.02 Compliance with Laws, Etc. . . . . . . . . . . 48
Section 9.03 Payment of Taxes and Claims, Etc. . . . . . . 49
Section 9.04 Keeping of Books . . . . . . . . . . . . . . . 49
Section 9.05 Visitation, Inspection, Etc. . . . . . . . . . 49
Section 9.06 Insurance; Maintenance of Properties . . . . . 49
Section 9.07 Reporting Covenants . . . . . . . . . . . . . 50
Section 9.08 Financial Covenants . . . . . . . . . . . . . 54
Section 9.09 Notices under Certain
Other Indebtedness . . . . . . . . . . . . . . 55
Section 9.10 Additional Credit Parties
and Collateral . . . . . . . . . . . . . . . . 55
Section 9.11 ▇▇▇▇▇▇ Debt . . . . . . . . . . . . . . . . . 55
Section 9.12 Schedule VIII Subsidiaries . . . . . . . . . . 56
ARTICLE X
SCHEDULE AMENDMENTS . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XI
NEGATIVE COVENANTS
Section 11.01 Indebtedness . . . . . . . . . . . . . . . . . 56
Section 11.02 Liens . . . . . . . . . . . . . . . . . . . . 57
Section 11.03 Mergers, Acquisitions, Sales, Etc. . . . . . . 58
Section 11.04 Dividends, Etc. . . . . . . . . . . . . . . . 58
Section 11.05 Investments, Loans, Etc. . . . . . . . . . . . 59
Section 11.06 Sale and Leaseback Transactions . . . . . . . 60
Section 11.07 Transactions with Affiliates . . . . . . . . . 60
Section 11.08 Optional Prepayments . . . . . . . . . . . . . 60
Section 11.09 Changes in Business . . . . . . . . . . . . . 60
Section 11.10 ERISA . . . . . . . . . . . . . . . . . . . . 61
Section 11.11 Additional Negative Pledges . . . . . . . . . 61
Section 11.12 Limitation on Payment Restrictions
Affecting Consolidated Companies . . . . . . . 61
Section 11.13 Actions Under Certain Documents . . . . . . . 61
Section 11.14 Schedule VIII Subsidiaries . . . . . . . . . . 61
ARTICLE XII
EVENTS OF DEFAULT
Section 12.01 Payments . . . . . . . . . . . . . . . . . . . 62
Section 12.02 Covenants Without Notice . . . . . . . . . . . 62
Section 12.03 Other Covenants . . . . . . . . . . . . . . . 62
Section 12.04 Representations . . . . . . . . . . . . . . . 62
Section 12.05 Non-Payments of Other Indebtedness . . . . . . 62
Section 12.06 Defaults Under Other Agreements . . . . . . . 62
Section 12.07 Bankruptcy . . . . . . . . . . . . . . . . . . 63
Section 12.08 ERISA . . . . . . . . . . . . . . . . . . . . 63
Section 12.09 Money Judgment . . . . . . . . . . . . . . . . 64
Section 12.10 Change in Control of ▇▇▇▇▇▇ . . . . . . . . . 64
Section 12.11 Default Under Other Credit
Documents . . . . . . . . . . . . . . . . . . 64
Section 12.12 Attachments . . . . . . . . . . . . . . . . . 64
Section 12.13 Schedule VIII Subsidiaries . . . . . . . . . . 65
Section 12.14 Adjustment to Pro Rata Share . . . . . . . . . 65
ARTICLE XIII
THE AGENT
Section 13.01 Appointment of Agent . . . . . . . . . . . . . 66
Section 13.02 Authorization of Agent with
Respect to the Security Documents . . . . . . 67
Section 13.03 Nature of Duties of Agent . . . . . . . . . . 67
Section 13.04 Lack of Reliance on the Agent . . . . . . . . 67
Section 13.05 Certain Rights of the Agent . . . . . . . . . 68
Section 13.06 Reliance by Agent . . . . . . . . . . . . . . 68
Section 13.07 Indemnification of Agent . . . . . . . . . . . 69
Section 13.08 The Agent in its Individual Capacity . . . . . 69
Section 13.09 Holders of Revolving Credit Notes . . . . . . 69
Section 13.10 Successor Agent . . . . . . . . . . . . . . . 70
ARTICLE XIV
MISCELLANEOUS
Section 14.01 Notices . . . . . . . . . . . . . . . . . . . 70
Section 14.02 Amendments, Etc. . . . . . . . . . . . . . . . 71
Section 14.03 No Waiver; Remedies Cumulative . . . . . . . . 71
Section 14.04 Payment of Expenses, Etc. . . . . . . . . . . 72
Section 14.05 Right of Setoff . . . . . . . . . . . . . . . 73
Section 14.06 Benefit of Agreement . . . . . . . . . . . . . 74
Section 14.07 Governing Law; Submission
to Jurisdiction . . . . . . . . . . . . . . . 76
Section 14.08 Independent Nature of
Lenders, Rights . . . . . . . . . . . . . . . 77
Section 14.09 Counterparts . . . . . . . . . . . . . . . . . 77
Section 14.10 Effectiveness; Survival . . . . . . . . . . . 78
Section 14.11 Severability . . . . . . . . . . . . . . . . . 78
Section 14.12 Independence of Covenants . . . . . . . . . . 78
Section 14.13 Change in Accounting Principles,
Fiscal Year or Tax Laws . . . . . . . . . . . 78
Section 14.14 Headings Descriptive; Entire
Agreement . . . . . . . . . . . . . . . . . . 78
Section 14.15 Interest . . . . . . . . . . . . . . . . . . . 79
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Escrow Letter
EXHIBIT C - Document evidencing the name change from
International Cassette Corp. to TNI Cassette
Corp.
EXHIBIT D - Document evidencing the name change from Word
(UK) Limited to ▇▇▇▇▇▇ Word (UK) Limited
EXHIBIT E - Evidence of SunTrust Ten Million Dollar
Revolving Credit Facility
SCHEDULE 4.01(h) - UCC Search Locations
SCHEDULE 6.01 - Organization and Ownership of Subsidiaries
SCHEDULE 6.05 - Pending and Threatened Litigation
SCHEDULE 6.08(a) - Environmental Compliance
SCHEDULE 6.08(b) - Environmental Notices
SCHEDULE 6.08(c) - Environmental Permits
SCHEDULE 6.11 - Burdensome Restrictions
SCHEDULE 6.12 - Tax Filings and Payments
SCHEDULE 6.13 - The ▇. ▇. ▇▇▇▇▇▇ Company and Subsidiaries
SCHEDULE 6.14 - Leases
SCHEDULE 6.15 - Employee Benefit Matters
SCHEDULE 6.16 - Intellectual Property Matters
SCHEDULE 6.17 - Ownership of Properties
SCHEDULE 6.18 - Refinanced Indebtedness
SCHEDULE 6.20 - Labor Matters
SCHEDULE 6.21 - Dividend Restrictions
SCHEDULE 6.23 - Second Fiscal Quarter 1995 Calculations
SCHEDULE VIII - Subsidiaries of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Excluded
from Certain Provisions of Amended and
Restated Credit Agreement
SCHEDULE 11.01(b)- Existing Indebtedness
SCHEDULE 11.02 - Existing Liens
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (as it may be
amended and/or restated from time to time, this "Agreement") is
made and entered into as of the 13th day of December, 1995, by
and among ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee corporation
("▇▇▇▇▇▇"), SUNTRUST BANK, NASHVILLE, N. A. (formerly known as
Third National Bank in Nashville), a national banking association
("SunTrust"), the other banks and lending institutions listed
on the signature pages hereof and any assignees of SunTrust or such
other banks and lending institutions that become "Lenders" as
provided herein (SunTrust and such other banks, lending
institutions and assignees are referred to collectively herein as
the "Lenders"), and SUNTRUST BANK, NASHVILLE, N. A. (formerly
known as Third National Bank in Nashville), in its capacity
as agent for the Lenders and each successor agent for
such Lenders as may be appointed from time to time pursuant to
Article XIII (the "Agent").
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇, Lenders and Agent entered into a Credit
Agreement dated as of November 30, 1992, as amended (the
"Initial Credit Agreement") governing the terms of
certain credit facilities more particularly
described in the Initial Credit Agreement; and
WHEREAS, ▇▇▇▇▇▇ has requested certain revisions to the
Initial Credit Agreement, and Lenders and Agent have
agreed to the revisions subject to the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, ▇▇▇▇▇▇, the Lenders
and the Agent agree upon the terms and subject to
the conditions set forth herein as follows:
ARTICLE I.
DEFINITIONS: CONSTRUCTION
Section 1.01. Definitions. In addition to the other terms
defined herein, the following terms used herein shall
have the meanings herein specified (to be equally
applicable to both the singular and plural forms of the
terms defined):
"Advance" shall mean any principal amount advanced and
remaining outstanding at any time under the Revolving
Loans, which Advance shall be made or outstanding as a
Base Rate Advance or a LIBOR Advance, as the case may
be.
"Affiliate" of any Person means any other Person directly
or indirectly controlling, controlled by, or under common
control with, such Person, whether through the
ownership of voting securities, by contract or
otherwise. For purposes of this definition,
"control," (including with correlative meanings, the
terms "controlling," "controlled by," and "under common control
with") as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause
the direction of the management and policies of that
Person.
"Agent" shall mean SunTrust Bank, Nashville, N. A.
(formerly known as Third National Bank in Nashville), a
national banking association, and any successor agent
appointed pursuant to Section 13.10 hereto.
"Agreement" shall mean this Amended and Restated Credit
Agreement, as amended, restated or supplemented from
time to time.
"Applicable LIBOR Rate Margin" shall mean, with respect
to all outstanding Borrowings consisting of LIBOR
Advances hereunder, the relevant percentage indicated
below based upon the percentages indicated for ▇▇▇▇▇▇'▇
Interest Coverage Ratio and Senior Funded Debt to
Total Capital as determined on the date that is
ninety (90) days after the end of each fiscal year of
▇▇▇▇▇▇ based upon the audited financial statements for the
immediately preceding fiscal year, with such
Applicable LIBOR Rate Margin to be immediately
effective as of such date with respect to all
outstanding amounts under the Revolving Loans:
Percentage of Senior Funded Debt
Interest to Total Capital
Coverage Ratio --------------------------------
--------------
>45% 35%-45% <35%
================================
<2.5:1:0 1.00% .875% .75%
2.5:1.0-3.0:1.0 .875% .75% .625%
>3.0:1.0-5.0:1.0 .75% .625% .50%
>5.0:1.0 .625% .50% .375%
Notwithstanding the foregoing, in the event ▇▇▇▇▇▇ does
not deliver the audited financial statements for the
immediately preceding fiscal year in a manner that
permits the determinations required in the definition of
Applicable LIBOR Rate Margin within ninety (90) days of
the end of ▇▇▇▇▇▇'▇ fiscal year, commencing at the end
of such ninety (90) day period and continuing until
such audited financial statements are made available, the
Applicable LIBOR Rate Margin shall be the highest rate
set forth in the preceding chart.
"Asset Sale" shall mean any sale or other disposition (or
a series of related sales or other dispositions),
including without limitation, loss, damage, destruction
or taking, by any Consolidated Company to any Person
other than a Consolidated Company, of any property or
asset (including capital stock but excluding the
issuance and sale by ▇▇▇▇▇▇ of its own capital
stock) having an aggregate Asset Value in excess of $100,000,
other than sales or other dispositions made in the
ordinary course of business of any Consolidated Company.
"Asset Value" shall mean, with respect to any property or
asset of any Consolidated Company as of any particular
date, an amount equal to the greater of (a) the then
book value of such property or asset as established in
accordance with GAAP, or (b) the then fair market
value of such property or asset as determined in
good faith by the board of directors of such
Consolidated Company.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance Agreement entered into by a Lender and an
Eligible Assignee in accordance with the terms of
this Agreement and substantially in the form of Exhibit
A attached hereto.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978,
as amended and in effect from time to time (11 U.S.C.
Section 101 et seq.).
"Base Rate" shall mean the higher of (a) the rate that
the Agent publicly announces from time to time to be
its prime lending rate, as in effect from time to time,
or (b) the Federal Funds Rate, as in effect from time to
time, plus one-half of one percent (0.50%) per annum
(with any changes in such rates to be effective as of
the date of change any change in such rates). The
Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged
to any customers. The Agent may make commercial loans
or other loans at rates of interest at, above or below
the Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or
outstanding as a Revolving Loan bearing interest based
on the Base Rate.
"Borrowing" shall mean the incurrence by ▇▇▇▇▇▇ under any
Revolving Loan Commitment of Advances of one Type
concurrently having the same Interest Period or
the continuation of an existing Borrowing or
Borrowings in whole or in part.
"Business Day" shall mean any day excluding Saturday,
Sunday and any other day on which banks are
required or authorized to close in Nashville,
Tennessee or New York, New York.
"Change in Control Provision" shall mean any term or
provision contained in any indenture, debenture, note
or other agreement or document evidencing or
governing Indebtedness of ▇▇▇▇▇▇ evidencing debt or a
commitment to extend loans in excess of $1,000,000.00
which requires or permits the holder(s) of such
Indebtedness of ▇▇▇▇▇▇ to require that such Indebtedness of
▇▇▇▇▇▇ be redeemed, repurchased, defeased, prepaid or
repaid, either in whole or in part, or the maturity of
such Indebtedness of ▇▇▇▇▇▇ to be accelerated in any
respect, as a result of a change in ownership of the
capital stock of ▇▇▇▇▇▇ or voting rights with respect
thereto.
"Closing Date" shall mean the date on or before December
13, 1995, on which the Revolving Loans are made
and the conditions set forth in Article IV are
satisfied.
"Closing Fee" has the meaning ascribed to it in
Section 3.05(a).
"Commitment Percentage shall mean the relevant percentage
indicated below based upon the percentages indicated for
▇▇▇▇▇▇'▇ Interest Coverage Ratio and Senior Funded Debt
to Total Capital as determined on the date that is
ninety (90) days after the end of each fiscal year of
▇▇▇▇▇▇ based upon the audited financial statements for
the immediately preceding fiscal year, with such
Commitment Percentage to be immediately effective as of such date
with respect to all outstanding amounts under the
Revolving Loans:
Percentage of Senior Funded Debt
Interest to Total Capital
Coverage Ratio --------------------------------
-------------- >45% 35%-45% <35%
================================
<2.5:1:0 .375% .30% .25%
2.5:1.0-3.0:1.0 .25% .25% .20%
>3.0:1.0-5.0:1.0 .25% .20% .15%
>5.0:1.0 .20% .15% .125%
Notwithstanding the foregoing, in the event ▇▇▇▇▇▇
does not deliver the audited financial statements for
the immediately preceding fiscal year in a manner that
permits the determinations required in the definition
of the Commitment Percentage within ninety (90) days
of the end of ▇▇▇▇▇▇'▇ fiscal year, commencing at the
end of such ninety (90) day period and continuing until
such audited financial statements are made available, the
Commitment Percentage shall be the highest percentage
set forth in the preceding chart.
"Consolidated Companies" shall mean, collectively, ▇▇▇▇▇▇
and all of its Subsidiaries, including ▇▇▇▇▇▇
and its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of
▇▇▇▇▇▇, an amount equal to (a) the sum for such fiscal
period of its Consolidated Net Income (Loss) plus, to
the extent subtracted in determining such Consolidated
Net Income (Loss), provisions for (i) taxes based
on income, (ii) Consolidated Interest Expense, and
(iii) charges taken in conformity with FASB-106,
minus (b) any items of gain (or plus any items of loss) that were
(A) not realized in the ordinary course of business, and
(B) the result of any sale of assets.
"Consolidated Interest Expense" shall mean, for any
fiscal period of ▇▇▇▇▇▇, total interest expense
of the Consolidated Companies (including without
limitation, interest expense attributable to
capitalized leases) determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any
fiscal period of ▇▇▇▇▇▇, the net income (or loss)
of the Consolidated Companies on a consolidated basis
for such period (taken as a single accounting period)
determined in conformity with GAAP, but excluding
therefrom (to the extent otherwise included therein)
any income (or loss) of any Person accrued prior to
the date such Person becomes a Subsidiary of ▇▇▇▇▇▇ or
is merged into or consolidated with any Consolidated Company or
all or substantially all of such Person's assets are
acquired by any Consolidated Company.
"Consolidated Net Worth" shall mean, as of any date of
determination, Shareholders' Equity of ▇▇▇▇▇▇.
"Contractual Obligation" of any Person shall mean
any provision of any security issued by such Person
or of any agreement, instrument or undertaking under
which such Person is obligated or by which it or any
of the property owned by it is bound.
"Contribution Agreement" shall mean the Amended and
Restated Contribution Agreement executed of even date
herewith by each of the Guarantors, as the same may be
amended, restated or supplemented from time to time,
and in a form acceptable to the Guarantors, Lenders and
their respective counsel.
"Creditanstalt - Bankverein Adjusted Pro Rata Share"
shall equal the quotient of the following formula:
(Creditanstalt - Bankverein's Pro Rata Share of
the outstanding principal amount
under the Revolving Loan Commitments
-----------------------------------------------
(Total Outstanding Principal)
"Credit Documents" shall mean, collectively, this
Agreement, the Revolving Credit Notes, the Guaranty
Agreement, the ▇▇▇▇▇▇ Pledge Agreement, the Word
Pledge Agreement and all other Security Documents, if
any.
"Credit Parties" shall mean, collectively, each of
▇▇▇▇▇▇, the Guarantors and every other Person who from
time to time executes a Security Document with
respect to all or any portion of the Obligations.
"Default" shall mean any condition or event that, with
notice or lapse of time or both, would constitute an
Event of Default.
"DOL" shall have the meaning ascribed to it in Section
9.07(i)(iv).
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
"Eligible Assignee" shall mean (a) a commercial bank
organized under the laws of the United States, or
any state thereof, having total assets in excess of
$1,000,000,000 or any commercial finance or asset based
lending Affiliate of any such commercial bank and (b)
any Lender or any Affiliate of any Lender.
"Environmental Laws" shall mean all federal, state and
local statutes, laws, codes, regulations, rules and
ordinances, and all orders or decrees issued,
promulgated or approved thereunder, now or
hereafter in effect (including, without limitation,
those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing
material), relating to, regulating or imposing
liability or standards of conduct concerning (a)
pollution or protection of the environment, (b)
emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals or
industrial toxic or hazardous constituents, substances or wastes,
including without limitation, any Hazardous Substance,
petroleum including crude oil or any fraction
thereof, any petroleum product or other waste,
chemicals or substances regulated by any Environmental
Law into the environment (including without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata), (c) the manufacture,
processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil
or any fraction thereof, any petroleum product or
other waste, chemicals or substances regulated by any
Environmental Law, or (d) underground storage tanks and related
piping, and emissions, discharges and releases or
threatened releases therefrom, such Environmental Laws to
include, without limitation (i) the Clean Air Act (42
U.S.C. Section 7401 et seq.), (ii) the Clean Water Act
(33 U.S.C. Section 1251 et sea.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), (iv) the Toxic Substances Control Act (15 U.S.C. Section
2601 et seq.), (v) the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act (42 U.S.C. Section
9601 et seq.), (vi) any "Superfund" or "Superlien" law,
including without limitation the Tennessee Hazardous Waste
Management Acts of 1977 and of 1983 and the Tennessee Hazardous
Waste Reduction Act of 1990, as amended, Tennessee Code
Annotated Section ▇▇-▇▇▇-▇▇▇ et seq., Section ▇▇-▇▇▇-▇▇▇ et
seq. and Section ▇▇-▇▇▇-▇▇▇ et seq., and (vii) all applicable
national and local laws or regulations with respect to
environmental control.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended and in effect from time
to time.
"ERISA Affiliate" shall mean, with respect to any Person,
each trade or business (whether or not incorporated)
that is a member of a group of which that Person is a
member and that is under common control within the
meaning of the regulations promulgated under Section
414 of the Tax Code.
"Escrow Letter" shall mean a letter agreement between
▇▇▇▇▇▇ and the Agent substantially in the form of
Exhibit B attached hereto.
"Event of Default" shall have the meaning ascribed to it
in Article XII.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and any successor
statute thereto.
"Executive Officer" shall mean with respect to any
Person, the president, vice presidents, chief financial
officer, treasurer, secretary and any Person holding
comparable offices or duties.
"FASB-106" shall mean Financial Accounting Standards
Board Statement No. 106, as in effect on the date
of this Agreement, specifying applicable accounting
principles with respect to accrual of the expected
cost of providing post retirement benefits to
employees or their dependents.
"Federal Funds Rate" shall mean for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the
rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of Atlanta,
or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day
on such transactions received by the Agent from three
(3) Federal funds brokers of recognized standing
selected by the Agent.
"Final Maturity Date" shall mean the earlier of (a)
December 13, 2002, and (b) the date on which all
amounts outstanding under this Agreement have been
declared or have automatically become due and payable
pursuant to the provisions of Article XII.
"First American National Bank Adjusted Pro Rata Share"
shall equal the quotient of the following formula:
(First American National Bank's Pro Rata Share of
the outstanding principal amount under the
Revolving Loan Commitments
-------------------------------------------------
(Total Outstanding Principal)
"Funded Debt" shall mean all Indebtedness for money
borrowed, Indebtedness evidenced or secured by
purchase money Liens, capitalized leases, conditional
sales contracts and similar title retention debt
instruments, including any current maturities of such
Indebtedness that by its terms matures more than one
year from the date of any calculation thereof and/or
that is renewable or extendable at the option of the obligor to a
date beyond one (1) year from such date of
calculation. The calculation of Funded Debt shall
include all Funded Debt of the Consolidated Companies,
plus all Funded Debt of other Persons to the extent
guaranteed by a Consolidated Company, to the extent
supported by a letter of credit issued for the account of a
Consolidated Company, or as to which and to the extent
which a Consolidated Company or its assets otherwise
have become liable for payment thereof.
"GAAP" shall mean generally accepted accounting
principles set forth in the opinions and pronouncements
of the Accounting Principles Board of the American
Institute of Certified Public Accountants and
statements and pronouncements of the Financial
Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession,
which are applicable to the circumstances as of the date
of determination.
"▇▇▇▇▇▇ shall mean The ▇. ▇. ▇▇▇▇▇▇ Company, a Delaware
corporation.
"▇▇▇▇▇▇ Corrections" shall have the meaning ascribed to
it in Article VII.
"▇▇▇▇▇▇ Debt" shall mean certain indebtedness (consisting
of two term loans) currently owed by ▇▇▇▇▇▇ to
MetLife in the aggregate outstanding principal amount
of Twelve Million and No/100 Dollars ($12,000,000.00)
evidenced by two long-term loan agreements.
"▇▇▇▇▇▇ Information" shall have the meaning ascribed to
it in Article V.
"▇▇▇▇▇▇ Pledge Agreement" shall mean that certain Pledge
Agreement executed of even date herewith by ▇▇▇▇▇▇ in
favor of the Agent providing for the grant of a first-
priority Lien on all outstanding common stock of
▇▇▇▇▇▇, as the same may be amended, restated or
supplemented from time to time, and in a form
acceptable to ▇▇▇▇▇▇, the Lenders and their respective counsel.
"Guarantors" shall mean, collectively, all of ▇▇▇▇▇▇'▇
Subsidiaries, including without limitation, ▇▇▇▇▇▇
(upon its acquisition by ▇▇▇▇▇▇), and their
respective successors and permitted assigns, but
excluding those Subsidiaries of ▇▇▇▇▇▇ set forth on
Schedule VIII.
"Guaranty" shall mean any contractual obligation,
contingent or otherwise, of a Person with respect
to any Indebtedness or other obligation or liability
of another Person, including without limitation, any
such Indebtedness, obligation or liability directly or
indirectly guaranteed, endorsed, co-made or discounted
or sold with recourse by that Person, or in respect of
which that Person is otherwise directly or indirectly liable,
including Contractual Obligations (contingent or
otherwise) arising through any agreement to
purchase, repurchase or otherwise acquire such
Indebtedness, obligation or liability or any security
therefor, or any agreement to provide funds for the
payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level
of income or other financial condition or to make any
payment other than for value received. The amount of
any Guaranty shall be deemed to be an amount equal to
the stated or determinable amount of the primary
obligation in respect of which guaranty is made or, if not so
stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined
by such Person in good faith.
"Guaranty Agreement" shall mean the joint and several
Amended and Restated Guaranty Agreement executed of
even date herewith by each of the Guarantors in favor
of the Lenders and the Agent, as the same may be
amended, restated or supplemented from time to time,
and in a form acceptable to the Guarantors, Lenders and
their respective counsel.
"Hazardous Substance" shall have the meaning assigned to
that term in the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and
Reauthorization Acts of 1986.
"Indebtedness" of any Person shall mean, without
duplication (a) all obligations of such Person that in
accordance with GAAP would be shown on the balance sheet
of such Person as a liability (including, without
limitation, obligations for borrowed money and for
the deferred purchase price of property or services, and
obligations evidenced by bonds, debentures, notes or
other similar instruments); (b) all rental obligations under
leases required to be capitalized under GAAP; (c) all
Guaranties of such Person (including contingent
reimbursement obligations under undrawn letters of
credit); (d) Indebtedness of others secured by any
Lien upon property owned by such Person, whether or
not assumed; and (e) obligations or other liabilities under
currency contracts, interest rate hedging contracts or
similar agreements or combinations thereof.
"Indemnitee" shall have the meaning ascribed to it in
Section 14.04(c).
"Indenture" means that certain Indenture dated as of
November 30, 1992, between ▇▇▇▇▇▇ and Boatmen's Trust
Company, as Trustee, evidencing Subordinated Debt.
"Initial Reduction Date" shall mean December 13, 1998,
unless further extended in accordance with Section 2.08.
"Interest Coverage Ratio" shall mean, as of the end of
any fiscal period of ▇▇▇▇▇▇, the ratio of (a)
Consolidated EBIT to (b) the sum of Consolidated
Interest Expense.
"Interest Period" shall have the meaning ascribed to it
in Section 3.04.
"Investment" shall mean, when used with respect to any
Person, any direct or indirect advance (excluding
advances made to authors or artists in the ordinary
course of business), loan or other extension of
credit (other than the creation of receivables in
the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to
others or payments for property or services for the
account or use of others, or otherwise) to any
Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial
interest in, capital stock, partnership interests,
bonds, notes, debentures or other securities issued by any other
Person.
"IRS" shall have the meaning ascribed to it in Section
9.07(i)(iv).
"Lender" or "Lenders" shall mean SunTrust, the other
banks and lending institutions listed on the
signature pages hereof and each assignee thereof, if
any, pursuant to Section 14.06(c).
"Lending Office" shall mean for each Lender the office
such Lender may designate in writing from time to time
to ▇▇▇▇▇▇ and the Agent with respect to each Type of
Revolving Loan.
"LIBOR" shall mean, for any Interest Period, the offered
rates for deposits in U.S. Dollars for a period
comparable to the Interest Period and in an amount
comparable to the Agent's portion of such Advances
determined by the Agent from Telerate Page 3750 as of
11:00 A.M. (London, England time) on the day that is
two Business Days prior to the first day of the Interest
Period. If two or more of such rates appear on the Telerate
Page, the rate for that Interest Period shall be the
arithmetic mean of such rates, rounded, if necessary,
to the next higher 1/16 of 1.0%, if the rate is not
such a multiple, and in either case as such rates
may be adjusted for any applicable reserve
requirements. If such rate is unavailable on such service, then
such rate shall be determined by and based on any other
interest rate reporting service of recognized
standing designated in writing by the Agent to ▇▇▇▇▇▇
and the other Lenders.
"LIBOR Advance" shall mean any Advance made or
outstanding as a Revolving Loan bearing interest at
LIBOR.
"Lien" shall mean any mortgage, pledge, security
interest, lien, charge, hypothecation, assignment,
deposit arrangement, title retention, preferential
property right, trust or other arrangement having the
practical effect of the foregoing and shall include the
interest of a vendor or lessor under any conditional
sale agreement, capitalized lease or other title
retention agreement.
"Margin Regulations" shall mean Regulation G,
Regulation T, Regulation U and Regulation X of the
Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time.
"Materially Adverse Effect" shall mean any materially
adverse change in (a) the business, results of
operations, financial condition, assets or prospects
of the Consolidated Companies, taken as a whole, (b)
the ability of ▇▇▇▇▇▇ to perform its obligations under
this Agreement, or (c) the ability of the other
Credit Parties (taken as a whole) to perform their
respective obligations under the Credit Documents.
"MetLife" means Metropolitan Life Insurance Company.
"Multiemployer Plan" shall have the meaning ascribed to
it in Section 4001(a)(3) of ERISA.
"National City Bank, Kentucky (formerly known as First
National Bank of Louisville) Adjusted Pro Rata Share"
shall equal the quotient of the following formula:
(National City Bank, Kentucky's (formerly
known as First National Bank of Louisville)
Pro Rata Share of the outstanding principal
amount under the Revolving Loan Commitments
the outstanding principal amount under the
National City Bank, Kentucky (formerly known
as First National Bank of Louisville)
Letter of Credit Facility
-------------------------------------------
(Total Outstanding Principal)
"National City Bank, Kentucky (formerly known as First
National Bank of Louisville) Letter of Credit
Facility" shall mean that certain $8,000,000 commercial
letter of credit facility pursuant to which National
City Bank, Kentucky (formerly known as First National
Bank of Louisville) issues commercial trade letters
of credit for the account of ▇▇▇▇▇▇, which facility shall
mature July 31, 1996.
"NationsBank of Texas, N.A. Adjusted Pro Rata Share"
shall equal the quotient of the following formula:
(NationsBank of Texas, N.A.'s
Pro Rata Share of the outstanding principal
amount under the Revolving Loan Commitments
-------------------------------------------
(Total Outstanding Principal)
"▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a Tennessee
corporation, its successors and permitted assigns.
"Net Proceeds" shall mean, with respect to any Asset
Sale, all cash, including (a) cash receivables (when
received) by way of deferred payment pursuant to a
promissory note, a receivable or otherwise (other
than interest payable thereon), and (b) with respect
to Asset Sales resulting from the loss, damage,
destruction or taking of property, the proceeds of
insurance settlements and condemnation awards (other than the
portion of the proceeds of such settlements and such
awards that are used to repair, replace, improve or
restore the item of property in respect of which such
settlement or award was paid provided that the
recipient of such proceeds enters into a binding
contractual obligation to effect such repair,
replacement, improvement or restoration within six (6) months of
such loss, damage or destruction and completes such
repair, replacement, improvement or restoration within
twelve (12) months of such loss, damage, destruction or
taking) as and when received in cash, in either case, received
by any Consolidated Company as a result of or in connection
with such transaction, net of reasonable sale expenses, fees
and commissions incurred, and taxes paid or expected to be
payable within the succeeding 12-month period in connection
therewith, and net of any payment required to be made with
respect to the outstanding principal amount of, premium or
penalty, if any, and interest on any Indebtedness (other than
the Revolving Loans) secured by a Lien (to the extent permitted
by Section 11.02) upon the asset sold in such Asset Sale.
"Notice of Borrowing" shall have the meaning ascribed to
it in Section 3.01(a).
"Notice of Change" shall have the meaning ascribed to it
in Article X.
"Notice of Conversion/Continuation" shall have the
meaning ascribed to it in Section 3.01(b).
"Notice of Extension" shall have the meaning ascribed to
it in Section 2.08(a).
"Notice Period" shall have the meaning ascribed to it in
Article V.
"Obligations" shall mean all amounts owing to the Agent
or any Lender pursuant to the terms of this Agreement
or any other Credit Document, including without
limitation, all Revolving Loans (including all
principal and interest payments due thereunder),
fees, expenses, indemnification and reimbursement
payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute
or contingent, liquidated or unliquidated, now
existing or hereafter arising, together with all
renewals, extensions, modifications or refinancings
thereof.
"Payment Office" shall mean, at any time for any Lender,
the Payment Office set forth opposite such Lender's name
on the signature pages hereof, as the same may be
amended pursuant to Section 14.02.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation, or any successor thereto.
"Person" shall mean any individual, partnership, firm,
corporation, association, limited liability company,
joint venture, trust or other entity, or any
government or political subdivision or agency,
department or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as
defined in Section 3(3) of ERISA), including, but not
limited to, any defined benefit pension plan, profit sharing
plan, money purchase pension plan, savings or thrift
plan, stock bonus plan, employee stock ownership plan,
Multiemployer Plan, or any plan, fund, program,
arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident,
sickness, disability, or life insurance benefits.
"Prescribed Forms" shall mean such duly executed forms or
statements, and in such number of copies, which may, from
time to time, be prescribed by law and which,
pursuant to applicable provisions of (a) an income tax
treaty between the United States and the country of
residence of the Lender providing the form or
statement, (b) the Tax Code, or (c) any applicable rule or
regulation under the Tax Code, permit ▇▇▇▇▇▇ to make
payments hereunder for the account of such Lender
free, or subject to a reduced rate, of deduction or
withholding of income or similar taxes.
"Pro Rata Share" shall mean, with respect to each of the
Revolving Loan Commitments of each Lender and each
Revolving Loan to be made by and each payment
(including, without limitation, any payment of
principal, interest or fees) to be made to each
Lender, the percentage designated as such Lender's Pro Rata Share
of such Revolving Loan Commitments, such Revolving Loans
or such payments, as applicable, set forth under the
name of such Lender on the respective signature page for
such Lender, in each case as such Pro Rata Share may
change from time to time as a result of assignments or
amendments made pursuant to this Agreement.
"Reduction Amount" shall mean a constant amount equal to
fifteen percent (15%) of the amount of the
Revolving Loan Commitments outstanding on the Initial
Reduction Date.
"Refinanced Indebtedness" shall mean the Indebtedness of
the Consolidated Companies to be paid on the Closing
Date with the proceeds of the initial Borrowings under
the Revolving Loan Commitments as more particularly
described on Schedule 6.18.
"Required Lenders" shall mean at any time Lenders holding
at least sixty-six and two-thirds percent (66-2/3%) of
the then aggregate amount of the Revolving Loan
Commitments.
"Requirement of Law" for any Person shall mean the
articles or certificate of incorporation and by-laws
or other organizational or governing documents of
such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or a
court or other governmental authority, in each case
applicable to or binding upon such Person or any of its
property or to which such Person or any of its property
is subject.
"Revolving Credit Notes" shall mean, collectively, the
Consolidated, Amended and Restated Revolving
Credit Notes evidencing the Revolving Loans executed
of even date herewith by ▇▇▇▇▇▇ to the order of
Lenders as they may be amended and/or restated from
time to time, and in a form acceptable to ▇▇▇▇▇▇,
Lenders and their respective counsel.
"Revolving Loan Commitment" shall mean, at any time for
any Lender, the amount of the Revolving Loan Commitment
set forth opposite such Lender's name on the signature
pages hereof, as the same may be increased or decreased
from time to time as a result of any reduction thereof
pursuant to Section 2.04, Section 2.05, Section 2.06 or
Section 2.07, any assignment thereof pursuant to
Section 14.06, or any amendment thereof pursuant to Section
14.02.
"Revolving Loans" shall mean, collectively, the revolving
credit loans made to ▇▇▇▇▇▇ by the Lenders
pursuant to Section 2.01.
"Security Documents" shall mean, collectively, the
Guaranty Agreement, the ▇▇▇▇▇▇ Pledge Agreement, Word
Pledge Agreement and each other guaranty agreement,
mortgage, deed of trust, security agreement, pledge
agreement or other security or collateral document
guaranteeing or securing the Obligations, as the same
may be amended, restated or supplemented from time to
time.
"Senior Debt" shall mean other Indebtedness of ▇▇▇▇▇▇ not
to exceed $62,000,000, which Indebtedness shall be
(a) on a parity with the obligations of ▇▇▇▇▇▇ and any
other Credit Party arising under this Agreement, the
Revolving Credit Notes, the Guaranty Agreement and all
other Credit Documents, and (b) issued upon terms and
conditions (including without limitation matters
regarding interest rates, payment terms, maturities, amortization
schedules, covenants, defaults and remedies)
satisfactory in all respects to the Agent and the
Required Lenders, as evidenced by the written approval
of the Agent and Required Lenders; provided, however
that the Consolidated Companies, Lenders and Agent
acknowledge and agree that (i) the terms and conditions of the
Senior Debt shall be no more restrictive than the
terms and conditions of the Revolving Loans, (ii) all
Senior Debt shall provide for the payment of interest
only for at least seven (7) years from the date of
issuance (except for Senior Debt in the principal
amount not to exceed $15,000,000 owed to MetLife, which
shall provide for the payment of interest only for at least three
and one-half (3 1/2) years from the date of issuance),
and (iii) the average life of the Senior Debt shall at
all times be greater than seven (7) years. In no event
shall the Senior Debt be deemed to include the SunTrust
Letter of Credit Facility or the National City Bank,
Kentucky (formerly known as First National Bank of Louisville)
Letter of Credit Facility. The ▇▇▇▇▇▇ Debt is
included in and shall be a part of the Senior Debt.
"Senior Funded Debt" shall mean all Funded Debt minus the
Subordinated Debt.
"Shareholders' Equity" shall mean, with respect to any
Person as at any date of determination, shareholders'
equity of such Person determined in accordance with
GAAP.
"Subordinated Debt" shall mean other Indebtedness of
▇▇▇▇▇▇ subordinated to all obligations of ▇▇▇▇▇▇ or
any other Credit Party arising under this Agreement,
the Revolving Credit Notes, the Guaranty Agreement and
all other Credit Documents on terms and conditions
satisfactory in all respects to the Agent and the
Required Lenders, including without limitation, with
respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults,
remedies and subordination provisions, as evidenced by
the written approval of the Agent and Required Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without
limitation, partnerships, joint ventures, and
associations) regardless of its jurisdiction of
organization or formation, at least a majority of the
total combined voting power of all classes of voting stock or
other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such
Person, either directly or indirectly through one or
more other Subsidiaries.
"SunTrust" shall mean SunTrust Bank, Nashville, N. A.
(formerly known as Third National Bank in Nashville), a
national banking association.
"SunTrust Adjusted Pro Rata Share" shall equal the
quotient of the following formula:
(SunTrust's Pro Rata Share of the outstanding
principal amount under the Revolving Loan
Commitments + the outstanding principal amount
under the SunTrust Ten Million Dollar Revolving
Credit Facility + the outstanding principal amount
under the SunTrust Letter of Credit Facility
--------------------------------------------------------
(Total Outstanding Principal)
"SunTrust Letter of Credit Facility" shall mean that
certain $4,000,000 commercial letter of credit facility
pursuant to which SunTrust issues commercial trade
letters of credit for the account of ▇▇▇▇▇▇, which
facility shall mature September 30, 1996.
"SunTrust Ten Million Dollar Revolving Credit Facility"
shall have the meaning ascribed to it in Section
11.01(f).
"Tax Code" shall mean the Internal Revenue Code of 1986,
as amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions,
withholdings or other charges of whatever nature,
including without limitation, income, receipts,
excise, property, sales, transfer, license, payroll,
withholding, social security and franchise taxes now or
hereafter imposed or levied by the United States, or any state,
local or foreign government or by any department, agency
or other political subdivision or taxing authority
thereof or therein and all interest, penalties,
additions to tax and similar liabilities with respect
thereto.
"Telerate" shall mean, when used in connection with any
designated page and LIBOR, the display page so
designated on the Dow ▇▇▇▇▇ Telerate Service (or such
other page as may replace that page on that service
for the purpose of displaying rates comparable to
LIBOR).
"Total Capital" shall mean the sum of Funded Debt and
Consolidated Net Worth of the Consolidated Companies.
"Total Commitment" shall mean, for any Lender at any
time, such Lender's Revolving Loan Commitment, and
"Total Commitments" shall mean, for all Lenders at any
time, the sum of the Total Commitment of all Lenders.
"Total Outstanding Principal" shall mean the outstanding
principal amount under the Revolving Loan Commitments,
plus the outstanding principal amount under the
SunTrust Ten Million Dollar Revolving Credit Facility,
plus the outstanding principal amount under the
SunTrust Letter of Credit Facility, plus the
outstanding principal amount under the National City Bank,
Kentucky (formerly known as First National Bank of
Louisville) Letter of Credit Facility.
"Type" of Borrowing shall mean a Borrowing consisting of
Base Rate Advances or LIBOR Advances.
"UCC Information" shall have the meaning ascribed to it
in Article V.
"Word Pledge Agreement" shall mean that certain Amended
and Restated Pledge Agreement of even date herewith
executed by ▇▇▇▇▇▇ in favor of the Agent providing for
the grant of a first- priority Lien on all
outstanding common stock of Word, Incorporated,
as the same may be amended, restated or supplemented
from time to time, and in a form acceptable to
▇▇▇▇▇▇, the Lenders and their respective counsel.
Section 1.02. Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting
terms shall be construed herein, all accounting
determinations hereunder shall be made, all financial
statements required to be delivered hereunder shall be
prepared, and all financial records shall be maintained
in accordance with GAAP; provided, however, that
compliance with the financial covenants and calculations set
forth in Section 9.08, Article XI and elsewhere
herein, and in the definitions used in such covenants
and calculations, shall be calculated, made and applied
in accordance with GAAP as in effect on the date of
this Agreement applied on a basis consistent with the
preparation of the financial statements referred to in
Section 6.14 unless and until ▇▇▇▇▇▇ and the Required
Lenders enter into an agreement with respect thereto
in accordance with Section 14.13.
Section 1.03. Other Definitional Terms. The words
"hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular
provision of this Agreement, and the words Article,
Section, Schedule, Exhibit and like references are to
this Agreement unless otherwise specified.
Section 1.04. Exhibits and Schedules. All Exhibits and
Schedules attached hereto are by reference made a part
hereof.
ARTICLE II.
REVOLVING LOANS
Section 2.01. Revolving Loan Commitment. (a) Subject to
and upon the terms and conditions herein set forth,
each Lender severally agrees to make to ▇▇▇▇▇▇ from time
to time on and after the Closing Date, but prior to the
Final Maturity Date, Revolving Loans in an aggregate
amount outstanding at any time not to exceed such
Lender's Revolving Loan Commitment. ▇▇▇▇▇▇ shall be
entitled to repay and reborrow Revolving Loans in accordance with
the provisions hereof.
(b) Each Revolving Loan shall, at the option of ▇▇▇▇▇▇,
be made, continued as or converted into part of one
or more Borrowings that shall consist entirely of Base
Rate Advances and LIBOR Advances. Each Borrowing of
Revolving Loans comprised of LIBOR Advances shall not
be less than $2,000,000 or a greater integral
multiple of $500,000, and each Borrowing of Revolving
Loans comprised of Base Rate Advances shall be not less than
$250,000 or a greater integral multiple of $100,000.
Section 2.02. Use Of Proceeds. The proceeds of the
Revolving Loans shall be used solely for the following
purposes:
(a) Approximately $43,000,000 shall be used
initially to repay Refinanced Indebtedness of the
Consolidated Companies on the Closing Date; and
(b) Approximately $74,000,000 shall be used
initially to acquire all of the outstanding common stock
of ▇▇▇▇▇▇, including the cost of such common
stock and any and all acquisition costs
associated therewith, including severance
costs, corporate finance fees and expenses
and attorneys' fees and expenses.
(c) All other amounts shall be used as working
capital and for other general corporate purposes,
including acquisitions and capital expenditures
of the Consolidated Companies.
Section 2.03. Revolving Credit Notes: Repayment of
Principal. (a) ▇▇▇▇▇▇'▇ obligations to pay the
principal of and interest on the Revolving Loans to each
Lender shall be evidenced by the records of the Agent
and such Lender and by the Revolving Credit Note
payable to such Lender (or the assignor of such
Lender) completed in conformity with this Agreement.
(b) All outstanding principal amounts under the
Revolving Loans shall be due and payable in full on
the Final Maturity Date.
Section 2.04. Automatic, Mandatory Reduction of Revolving
Loan Commitments. Commencing on the Initial Reduction
Date and continuing thereafter on each one (1) year
anniversary thereof until the Final Maturity Date,
the Revolving Loan Commitments shall be permanently
and ratably reduced by an amount equal to the
Reduction Amount plus interest accrued and unpaid on the
amount of such prepayment. Any such reduction of the
Revolving Loan Commitments shall apply as a
proportional and permanent reduction of the Revolving
Loan Commitments of each of the Lenders. If the
aggregate outstanding amount of the Revolving Loans
exceeds the amount of the Revolving Loan Commitments as so
reduced, ▇▇▇▇▇▇ shall immediately repay the Revolving Loans by
an amount equal to such excess. Each mandatory
prepayment of Revolving Loans pursuant to this
Section 2.04 shall be applied first to Base Rate
Advances to the full extent thereof before
application to LIBOR Advances; provided, however, that, so long
as no Default or Event of Default has occurred and is
continuing, in lieu of application of such prepayment to
LIBOR Advances prior to the expiration of the respective
Interest Periods with respect thereto, ▇▇▇▇▇▇, at its
option, may execute an Escrow Letter with respect to
such prepayment and deposit with the Agent funds equal to the
amount of such prepayment for application in accordance with
the terms of such Escrow Letter.
Section 2.05. Mandatory Reduction of Revolving Loan
Commitments Regarding Senior Debt. Upon the issuance
of any Senior Debt, the Revolving Loan Commitments
shall be permanently and ratably reduced by an amount
equal to one hundred percent (100%) of the amount of
such Senior Debt issued plus interest accrued and
unpaid on the amount of such prepayment. Any such
reduction of the Revolving Loan Commitments shall apply as a
proportional and permanent reduction of the
Revolving Loan Commitments of each of the Lenders. If
the aggregate outstanding amount of the Revolving Loans
exceeds the amount of the Revolving Loan Commitments as
so reduced, ▇▇▇▇▇▇ shall immediately repay the
Revolving Loans by an amount equal to such excess. Nothing in
this Section 2.05 shall be deemed to authorize the
issuance of any Indebtedness not constituting Senior
Debt. Each mandatory prepayment of Revolving Loans
pursuant to this Section 2.05 shall be applied first to
Base Rate Advances to the full extent thereof before
application to LIBOR Advances; provided, however, that, so
long as no Default or Event of Default has occurred and
is continuing, in lieu of application of such
prepayment to LIBOR Advances prior to the expiration
of the respective Interest Periods with respect
thereto, ▇▇▇▇▇▇, at its option, may execute an Escrow
Letter with respect to such prepayment and deposit with
the Agent funds equal to the amount of such prepayment for
application in accordance with the terms of such Escrow
Letter.
Section 2.06. Mandatory Reduction of Revolving Loan
Commitments Regarding Asset Sales. No mandatory
reduction shall be required pursuant to this Section
2.06 until the aggregate amount of Asset Sales
(based on the Asset Values thereof but excluding
Asset Sales resulting from loss, damage, destruction or
taking where the proceeds thereof are utilized so as to be
excluded from the definition of Net Proceeds)
occurring after December 13, 1995, exceeds $2,500,000.
Within ten (10) Business Days after each date on which
any Consolidated Company receives any Net Proceeds as
a result of or in connection with an Asset Sale by any
Consolidated Company, the Revolving Loan Commitments
shall be permanently and ratably reduced by an amount equal to
one hundred percent (100%) of such Net Proceeds plus
interest accrued and unpaid on the amount of such
prepayment. Any such reduction of the Revolving Loan
Commitments shall apply as a proportional and
permanent reduction of the Revolving Loan
Commitments of each of the Lenders. If the aggregate outstanding
amount of the Revolving Loans exceeds the amount of the
Revolving Loan Commitments as so reduced, ▇▇▇▇▇▇ shall
immediately repay the Revolving Loans by an amount equal
to such excess. Nothing in this Section 2.06 shall be
deemed to authorize any Asset Sale not permitted by
Section 11.03. Each mandatory prepayment of
Revolving Loans pursuant to this Section 2.06 shall be applied
first to Base Rate Advances to the full extent thereof
before application to LIBOR Advances; provided, however, that,
so long as no Default or Event of Default has occurred
and is continuing, in lieu of application of such
prepayment to LIBOR Advances prior to the expiration of
the respective Interest Periods with respect thereto,
▇▇▇▇▇▇, at its option, may execute an Escrow Letter with
respect to such prepayment and deposit with the Agent funds equal
to the amount of such prepayment for application in
accordance with the terms of such Escrow Letter.
Section 2.07. Voluntary Reduction of Revolving Loan
Commitments. Upon at least three (3) Business
Days prior telephonic notice (promptly confirmed in
writing) to the Agent, ▇▇▇▇▇▇ shall have the right,
without premium or penalty, to terminate the
Revolving Loan Commitments, in part or in whole,
provided that (a) any such termination shall apply to
proportionately and permanently reduce the
Revolving Loan Commitments of each of the Lenders,
(b) any prepayment of LIBOR Advances must be in minimum
principal amounts of $2,000,000 and in multiples of
$500,000, and any prepayment of Base Rate Advances
must be in minimum principal amounts of $250,000 and in
multiples of $100,000, and (c) no such reduction shall be
permitted that would require a prepayment that is not
permitted by Section 3.06. If the aggregate
outstanding amount of the Revolving Loans exceeds
the amount of the Revolving Loan Commitments as
so reduced, ▇▇▇▇▇▇ shall immediately repay the
Revolving Loans by an amount equal to such excess, together with
all accrued but unpaid interest on such excess amount
and any amounts due under Section 3.12.
Section 2.08. Extension of Initial Reduction Date and
Final Maturity Date. (a) As long as no Default or
Event of Default has occurred and is continuing,
▇▇▇▇▇▇ shall have the right to notify Agent in
writing at its Payment Office at least sixty (60)
Business Days prior to the Initial Reduction Date of
▇▇▇▇▇▇'▇ desire to extend the Initial Reduction Date for a one
(1) year period (a "Notice of Extension"). Each
Notice of Extension shall request an extension to
the Initial Reduction Date of a one (1) year
period, no more, no less, provided, however, ▇▇▇▇▇▇
may, but shall not be obligated to, submit an
unlimited number of Notices of Extensions to Agent prior to the
Initial Reduction Date provided such Notices of
Extension comply with this Section 2.08.
(b) The Agent shall promptly give each Lender notice in
writing of its receipt of any Notice of Extension.
Within twenty (20) Business Days of Agent's receipt of
the Notice of Extension, Agent shall notify ▇▇▇▇▇▇ in
writing of the Lenders' acceptance or rejection of such
Notice of Extension. The Notice of Extension shall only
be accepted upon Agent's receipt from one hundred
percent (100%) of the Lenders of their approval of the Notice of
Extension. The Lenders' determination shall be final,
conclusive and binding upon all parties hereto.
(c) Once ▇▇▇▇▇▇'▇ Notice of Extension has been agreed to
and accepted by one hundred percent (100%) of the Lenders
and the Agent has advised ▇▇▇▇▇▇ of such determination
in accordance with Section 2.08(b), such Notice of
Extension shall be irrevocable.
(d) In the event there is a one (1) year extension in
the Initial Reduction Date pursuant to the terms of this
Section 2.08, there shall be a corresponding one (1)
year extension to the Final Maturity Date automatically
without further amendment to this Agreement, provided
the Obligations are unsecured.
(e) The Agent's and Lenders' review of any Notice of
Extension shall in no way obligate the Lenders to agree
to extend the Initial Reduction Date in accordance
with such Notice of Extension. The acceptance of any
one (1) Notice of Extension by the Lenders shall in no
way obligate the Lenders to agree to or accept any
future Notices of Extensions received by Agent from
▇▇▇▇▇▇.
ARTICLE III.
GENERAL REVOLVING LOAN TERMS
Section 3.01. Funding Notices. (a) Whenever ▇▇▇▇▇▇
desires to make a Borrowing with respect to the
Revolving Loan Commitments (other than one resulting
from a conversion or continuation pursuant to
Section 3.01(b)), it shall give the Agent prior
written notice (or telephonic notice promptly
confirmed in writing) of such Borrowing (a "Notice of
Borrowing"), such Notice of Borrowing to be given prior
to 11:00 A.M. (local time for the Agent) at its Payment
Office (i) one (1) Business Day prior to the requested
date of such Borrowing in the case of Base Rate
Advances, and (ii) two (2) Business Days prior to the
requested date of such Borrowing in the case of LIBOR
Advances. Notices received after 11:00 A.M. shall be deemed
received on the next Business Day. Each Notice of
Borrowing shall be irrevocable and shall specify the
aggregate principal amount of the Borrowing, the date
of Borrowing (which shall be a Business Day), and
whether the Borrowing is to consist of Base Rate
Advances or LIBOR Advances.
(b) Whenever ▇▇▇▇▇▇ desires to convert all or a portion
of an outstanding Borrowing under the Revolving Loan
Commitments, which Borrowing consists of Base Rate
Advances or LIBOR Advances, into one or more
Borrowings consisting of Advances of another Type, or
to continue outstanding a Borrowing consisting of LIBOR
Advances for a new Interest Period, it shall give the Agent at
least one (1) Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of
each such Borrowing being converted into or continued
as Base Rate Advances, and at least two (2) Business
Days prior written notice (or telephonic notice
promptly confirmed in writing) of each such Borrowing to be
converted into or continued as LIBOR Advances. Such notice (a
"Notice of Conversion/Continuation") shall be given prior
to 11:00 A.M (local time for the Agent) on the date
specified at the Payment Office of the Agent.
Each such Notice of Conversion/Continuation shall
be irrevocable and shall specify the aggregate
principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether
the Advances are being converted into or continued as
Base Rate Advances or LIBOR Advances and (in the case
of LIBOR Advances) the Interest Period applicable
thereto. If, upon the expiration of any Interest
Period in respect of any Borrowing, ▇▇▇▇▇▇ shall have
failed to deliver the Notice of Conversion/Continuation,
▇▇▇▇▇▇ shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of
Base Rate Advances. So long as any Executive Officer of
▇▇▇▇▇▇ has knowledge that any Default or Event of
Default shall have occurred and be continuing, no
Borrowing may be converted into or continued as (upon
expiration of the current Interest Period) LIBOR Advances
unless the Agent and each of the Lenders shall have
otherwise consented in writing. No conversion of any
Borrowing of LIBOR Advances shall be permitted
except on the last day of the Interest Period in
respect thereof.
(c) Without in any way limiting ▇▇▇▇▇▇'▇ obligation to
confirm in writing any telephonic notice, the Agent
may act without liability upon the basis of telephonic
notice believed by the Agent in good faith to be from
▇▇▇▇▇▇ prior to receipt of written confirmation. In
each such case, ▇▇▇▇▇▇ hereby waives the right to
dispute the Agent's record of the terms of such
telephonic notice.
(d) The Agent shall promptly give each Lender notice by
telephone (confirmed in writing) or by telex,
telecopy or facsimile transmission of the matters
covered by the notices given to the Agent pursuant to
this Section 3.01 with respect to the Revolving Loan
Commitments.
Section 3.02. Disbursement of Funds. (a) No later than
noon (local time for the Agent) on the date of each
Borrowing pursuant to the Revolving Loan Commitments
(other than one resulting from a conversion or
continuation pursuant to Section 3.01(b)), each Lender
will make available its Pro Rata Share of the amount
of such Borrowing in immediately available funds at
the Payment Office of the Agent. The Agent will make available to
▇▇▇▇▇▇ the aggregate of the amounts (if any) so made
available by the Lenders to the Agent in a timely
manner by crediting such amounts to ▇▇▇▇▇▇'▇ demand
deposit account maintained with the Agent or at
▇▇▇▇▇▇'▇ option, to effect a wire transfer of such
amounts to ▇▇▇▇▇▇'▇ account specified by an authorized
representative of ▇▇▇▇▇▇ by the close of business
on such Business Day.
(b) Unless the Agent shall have been notified by any
Lender prior to the date of a Borrowing that such Lender
does not intend to make available to the Agent such
Lender's portion of the Borrowing to be made on such
date, the Agent may assume that such Lender will make
such amount available to the Agent on such date and the
Agent may make available to ▇▇▇▇▇▇ a corresponding
amount. If such corresponding amount is not in fact made
available to the Agent by such Lender on the date of
Borrowing, the Agent shall be entitled to recover such
corresponding amount on demand from such Lender
together with interest at the Federal Funds Rate. If
such Lender does not pay such corresponding amount
forthwith upon the Agent's demand therefor, the Agent shall
promptly notify ▇▇▇▇▇▇, and ▇▇▇▇▇▇ shall immediately
pay such corresponding amount to the Agent together
with interest at the rate specified for the Borrowing
which includes such amount paid and any amounts due
under Section 3.12. Nothing in this Section 3.02(b)
shall be deemed to relieve any Lender from its obligation
to fund its Total Commitments hereunder or to prejudice any
rights that ▇▇▇▇▇▇ may have against any Lender as a
result of any default by such Lender hereunder.
(c) All Borrowings under the Revolving Loan Commitments
shall be loaned by the Lenders on the basis of their
Pro Rata Share of the Revolving Loan Commitments. No
Lender shall be responsible for any default by
any other Lender in its obligations hereunder, and
each Lender shall be obligated to make the Revolving
Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fund its Total
Commitments hereunder.
Section 3.03. Interest. (a) ▇▇▇▇▇▇ agrees to pay interest
in respect of all unpaid principal amounts of the
Revolving Loans from the respective dates such principal
amounts were advanced to maturity (whether by
acceleration, notice of prepayment or otherwise) at
rates per annum equal to the applicable rates
indicated below:
(i) For Base Rate Advances -- The Base Rate;
(ii) For LIBOR Advances -- LIBOR plus the
Applicable LIBOR Rate Margin.
(b) Overdue principal and, to the extent not prohibited
by applicable law, overdue interest, in respect of the
Revolving Loans and all other overdue amounts owing
hereunder shall bear interest from each date that such
amounts are overdue at a rate equal to the higher of
(i) the Base Rate plus an additional two percent (2.0%)
per annum, or (ii) the interest rate otherwise
applicable to such amount plus two percent (2.0%) per annum.
(c) Interest on each Revolving Loan shall accrue from
and including the date of such Revolving Loan to but
excluding the date of any repayment thereof; provided that, if
a Loan is repaid on the same day made, one day's
interest shall be paid on such Revolving Loan.
Interest on all outstanding Base Rate Advances shall
be payable monthly in arrears on the last calendar day
of each calendar month each year. Interest on all outstanding
LIBOR Advances shall be payable on the last day of each
Interest Period applicable thereto, and, in the case
of LIBOR Advances having an Interest Period in excess
of three (3) months, on each day that occurs every three
(3) months after the initial date of such Interest
Period. Interest on all Revolving Loans shall be
payable on any conversion of any Advances comprising such
Revolving Loans into Advances of another Type, prepayment
(on the amount prepaid), at maturity (whether by
acceleration, notice of prepayment or otherwise) and,
after maturity, on demand.
Section 3.04. Interest Periods. In connection with the
making or continuation of, or conversion into, each
Borrowing of LIBOR Advances, ▇▇▇▇▇▇ shall select an
interest period (each an "Interest Period") to be
applicable to such LIBOR Advances, which Interest Period
shall be either a one (1), two (2), three (3) or six
(6) month period; provided that:
(a) The initial Interest Period for any Borrowing
of LIBOR Advances shall commence on the date
of such Borrowing (including the date of any
conversion from a Borrowing consisting of
Advances of another Type) and each Interest
Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the
next preceding Interest Period expires;
(b) If any Interest Period would otherwise expire
on a day that is not a Business Day, such
Interest Period shall expire on the next
succeeding Business Day, provided that if any
Interest Period in respect of LIBOR Advances
would otherwise expire on a day that is not a
Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest
Period shall expire on the next preceding
Business Day;
(c) Any Interest Period in respect of LIBOR
Advances that begins on a day for which
there is no numerically corresponding day in
the calendar month at the end of such Interest
Period shall expire on the last Business Day of
such calendar month;
(d) No Interest Period with respect to the
Revolving Loans shall extend beyond the Final
Maturity Date.
Section 3.05. Fees. (a) ▇▇▇▇▇▇ shall pay to the Agent,
for the account of and distribution of the respective
Pro Rata Share to each Lender, a closing fee equal
to .10% of the commitment amount of the Revolving Loan
Commitments closed on the Closing Date in accordance
with the terms of this Agreement (collectively, the
"Closing Fee"). The Closing Fee shall be paid on the
Closing Date.
(b) ▇▇▇▇▇▇ shall pay to the Agent, for the account of
and distribution of the respective Pro Rata Share to each
Lender, a commitment fee for the period commencing on
the Closing Date and continuing up to but excluding
the Final Maturity Date, computed at the applicable
Commitment Percentage on the average daily unused
portion of the Revolving Loan Commitments of such
Lenders, computed quarterly, such fee being payable quarterly in
arrears on the last calendar day of each fiscal quarter
of ▇▇▇▇▇▇ and on the Final Maturity Date.
(c) ▇▇▇▇▇▇ shall pay to the Agent an annual
administrative fee in an amount equal to Fifty
Thousand and No/100 Dollars ($50,000.00) per annum,
payable quarterly in advance on the Closing Date and
on the first day of each quarter thereafter as long as
any of the Obligations remain outstanding.
Section 3.06. Voluntary Prepayments of Borrowings. (a)
▇▇▇▇▇▇ may, at its option, prepay Borrowings consisting
of Base Rate Advances at any time in whole, or from time
to time in part, in amounts aggregating $250,000 or any
greater integral multiple of $100,000, by paying the
principal amount to be prepaid together with
interest accrued and unpaid thereon to the date of
prepayment. Those Borrowings consisting of LIBOR Advances may be
prepaid, at ▇▇▇▇▇▇'▇ option, in whole, or from time to
time in part, in amounts aggregating $2,000,000 or any
greater integral multiple of $500,000, by paying the
principal amount to be prepaid, together with interest
accrued and unpaid thereon to the date of prepayment,
and all compensation payments pursuant to Section 3.12
if such prepayment is made on a date other than the
last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with
Section 3.06(c).
(b) ▇▇▇▇▇▇ shall give written notice (or telephonic
notice confirmed in writing) to the Agent of any
intended prepayment of the Revolving Loans (i) not
less than one (1) Business Day prior to any prepayment
of Base Rate Advances, and (ii) not less than two (2)
Business Days prior to any prepayment of LIBOR
Advances. Such notice, once given, shall be irrevocable.
Upon receipt of such notice of prepayment pursuant to the first
sentence of this Section 3.06(b), the Agent shall
promptly notify each Lender of the contents of such
notice and of such Lender's share of such prepayment.
(c) ▇▇▇▇▇▇, when providing notice of prepayment pursuant
to Section 3.06(b), may designate the Types of Advances
and the specific Borrowing or Borrowings that are to be
prepaid, provided that (i) if any prepayment of LIBOR Advances
made pursuant to a single Borrowing of the
Revolving Loans shall reduce the outstanding
Advances made pursuant to such Borrowing to an amount
less than $2,000,000, such Borrowing shall immediately be
converted into Base Rate Advances; and (ii) each
prepayment made pursuant to a single Borrowing shall
be applied pro rata among the Revolving Loans
comprising such Borrowing. In the absence of a
designation by ▇▇▇▇▇▇, the Agent shall, subject to the
foregoing, make such designation in its sole discretion.
All voluntary prepayments shall be applied to the
payment of interest before application to principal.
Section 3.07. Payments, etc. (a) Except as otherwise
specifically provided herein, all payments under this
Agreement and the other Credit Documents shall be
made without defense, set-off or counterclaim to the
Agent, for the account of and distribution of the
respective Pro Rata Share to each Lender except in
the case of payments made under Section 3.05(c), which
shall be made solely to Agent, not later than 11:00 A.M. (local
time for the Agent) on the date when due and shall be
made in Dollars in immediately available funds at its
Payment Office.
(b)(i) All such payments shall be made free and
clear of and without deduction or withholding
for any Taxes in respect of this Agreement, the
Revolving Credit Notes or other Credit
Documents, or any payments of principal,
interest, fees or other amounts payable
hereunder or thereunder (but excluding, except as
provided in Section 3.07(b)(iii), (A) any Taxes imposed
on the overall net or gross income of the
Lenders pursuant to the laws of the
jurisdictions with taxing authority over such
Lenders, (B) any franchise or similar taxes
imposed on the Lenders pursuant to the laws of the
jurisdictions with taxing authority over such Lenders
(other than the state of Tennessee), but only where
such franchise or similar taxes are imposed in
lieu of Taxes on the overall net or gross
income of the Lenders, and (C) any franchise or
similar taxes imposed on the Lenders pursuant to
the laws of the state of Tennessee). If any
Taxes are so levied or imposed, ▇▇▇▇▇▇ agrees (I) to pay
the full amount of such Taxes, and such additional
amounts as may be necessary so that every net
payment of all amounts due hereunder and under
the Revolving Credit Notes and other Credit
Documents, after withholding or deduction for
or on account of any such Taxes (including
additional sums payable under this Section 3.07), will
not be less than the full amount provided for herein had
no such deduction or withholding been required,
(II) to make such withholding or deduction, and
(III) to pay the full amount deducted to
the relevant authority in accordance with
applicable law. ▇▇▇▇▇▇ will furnish to the
Agent and each Lender, within thirty (30) days after the
date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts
evidencing such payment by ▇▇▇▇▇▇. ▇▇▇▇▇▇ will
indemnify and hold harmless the Agent and each
Lender and reimburse the Agent and each Lender
upon written request for the amount of any
Taxes so levied or imposed and paid by the
Agent or Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were
correctly or illegally asserted. A
certificate as to the amount of such payment
by such Lender or the Agent, absent manifest
error, shall be final, conclusive and binding for all
purposes.
(ii) Notwithstanding Section 3.07(b)(i), ▇▇▇▇▇▇
shall be entitled, to the extent it is required
to do so by law, to deduct or withhold income
or other similar Taxes imposed by the
United States of America from interest, fees
or other amounts payable hereunder for the
account of any Lender other than a Lender who (A) is a
domestic corporation (as such term is defined in Section
7701 of the Tax Code) for federal income tax
purposes, or (B) has the Prescribed Forms on
file with ▇▇▇▇▇▇ for the applicable year to the
extent deduction or withholding of such Taxes
is not required as a result of the filing of
such Prescribed Forms, provided that if ▇▇▇▇▇▇ shall so
deduct or withhold any such Taxes, it shall provide a
statement to the Agent and such Lender setting
forth the amount of such Taxes so deducted
or withheld, the applicable rate and any
other information or documentation that
such Lender may reasonably request for assisting
such Lender to obtain any allowable credits or
deductions for the Taxes so deducted or withheld in the
jurisdiction or jurisdictions in which such Lender is
subject to tax.
(iii) ▇▇▇▇▇▇ shall also reimburse the Agent and each
Lender, upon written request, for any Taxes
imposed (including, without limitation, Taxes
imposed on the overall gross or net income of
the Agent or such Lender pursuant to the laws
of the jurisdictions with taxing authority
over Agent or such Lender) as the Agent or such
Lender shall determine are payable by the Agent or such
Lender in respect of amounts paid by or on behalf of
▇▇▇▇▇▇ to or on behalf of the Agent or such
Lender pursuant to Section 3.07(b)(i).
(c) Subject to Section 3.04(b), whenever any payment to
be made hereunder or under any Revolving Credit Note
shall be stated to be due on a day that is not a
Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to
payments of principal, interest thereon shall be
payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be made
on the basis of a year of three hundred and sixty (360)
days for the actual number of days (including the first
day but excluding the last day) occurring in the period
for which such interest or fees are payable (to the
extent computed on the basis of days elapsed).
Interest on Base Rate Advances shall be calculated
based on the Base Rate from and including the date of such
Revolving Loan to but excluding the date of the
repayment or conversion thereof. Interest on LIBOR
Advances shall be calculated as to each Interest
Period from and including the first day thereof to
but excluding the last day thereof. Each
determination by the Agent of an interest rate or fee hereunder
shall be made in good faith and, except for manifest
error, shall be final, conclusive and binding for all
purposes.
(e) Payment by ▇▇▇▇▇▇ to the Agent in accordance with
the terms of this Agreement shall, as to ▇▇▇▇▇▇,
constitute payment to the Lenders under this Agreement.
Section 3.08. Interest Rate Not Ascertainable, etc. In
the event that the Agent, in the case of LIBOR,
shall have determined (which determination shall be
made in good faith and, absent manifest error, shall
be final, conclusive and binding upon all parties)
that on any date for determining LIBOR for any Interest
Period, by reason of any changes arising after the date
of this Agreement affecting the London interbank market or the
Agent's position in such market, adequate and fair means
do not exist for ascertaining the applicable interest
rate on the basis provided for in the definition of
LIBOR, then, and in any such event, the Agent shall
forthwith give notice (by telephone confirmed in
writing) to ▇▇▇▇▇▇ and to the Lenders of such
determination and a summary of the basis for such determination.
Until the Agent notifies ▇▇▇▇▇▇ that the
circumstances giving rise to the notice described
herein no longer exist, the obligations of the
Lenders to make or permit portions of the Revolving
Loans to remain outstanding past the last day of then
current Interest Periods as LIBOR Advances shall be suspended,
and such affected Advances shall bear the same interest
as Base Rate Advances.
Section 3.09. Illegality. (a) In the event that any
Lender shall have determined (which determination shall
be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all
parties) at any time that the making or continuance of
any LIBOR Advance has become unlawful by compliance by
such Lender in good faith with any applicable law,
governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure
to comply therewith would be unlawful), then, in any
such event, the Lender shall give prompt notice (by telephone
confirmed in writing) to ▇▇▇▇▇▇ and to the Agent of
such determination and a summary of the basis for such
determination (which notice the Agent shall promptly
transmit to the other Lenders).
(b) Upon the giving of the notice to ▇▇▇▇▇▇ referred to
in Section 3.09(a), (i) ▇▇▇▇▇▇'▇ right to request
and such Lender's obligation to make LIBOR Advances
shall be immediately suspended, and such Lender shall
make an Advance as part of the requested Borrowing of
LIBOR Advances as a Base Rate Advance, which Base
Rate Advance shall, for all other purposes, be
considered part of such Borrowing, and (ii) if the affected LIBOR
Advance or Advances are then outstanding,
▇▇▇▇▇▇ shall immediately, or if permitted by applicable
law, no later than the date permitted thereby, upon at
least one Business Days written notice to the Agent
and the affected Lender, convert each such Advance
into a Base Rate Advance or Advances, provided that if
more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this
Section 3.09(b).
Section 3.10. Increased Costs. (a) If by reason of (i)
after the date hereof, the introduction of or any
change (including, without limitation, any change by
way of imposition or increase of reserve requirements)
in or in the interpretation of any law or regulation,
or (ii) the compliance with any guideline or request
from any central bank or other governmental authority
or quasi-governmental authority exercising control over
banks or financial institutions generally (whether or not having
the force of law):
(A) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other
charge with respect to its LIBOR Advances or
its obligation to make LIBOR Advances, or the
basis of taxation of payments to any Lender of
the principal of or interest on its LIBOR
Advances or its obligation to make LIBOR Advances shall
have changed (except for changes in the tax on the
overall gross or net income of such Lender
imposed by the jurisdictions with taxing
authority over such Lender); or
(B) any reserve (including, without limitation,
any reserve imposed by the Board of Governors
of the Federal Reserve System), special
deposit or similar requirement against assets
of, deposits with or for the account of, or
credit extended by, any Lender's applicable
Lending Office shall be imposed or deemed
applicable or any other condition affecting its LIBOR
Advances or its obligation to make LIBOR Advances shall
be imposed on any Lender or its applicable
Lending Office or the London interbank market;
and as a result thereof there shall be any increase in the cost
to such Lender of agreeing to make or making,
funding or maintaining LIBOR Advances (except to the
extent already included in the determination of LIBOR
for LIBOR Advances), or there shall be a reduction in
the amount received or receivable by such Lender or
its applicable Lending office, then ▇▇▇▇▇▇ shall from
time to time (subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b)), upon
written notice from and demand by such Lender on
▇▇▇▇▇▇ (with a copy of such notice and demand to the
Agent), pay to the Agent for the account of such Lender
within ten (10) days after the date of such notice and
demand, additional amounts sufficient to indemnify such
Lender against such increased cost. A certificate as to
the amount of such increased cost, submitted to ▇▇▇▇▇▇
and the Agent by such Lender in good faith and
accompanied by a statement prepared by such Lender
describing in reasonable detail the basis for and
calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all
purposes.
(b) If any Lender shall advise the Agent that at any
time, because of the circumstances described in
Section 3.10(a)(i) or Section 3.10(a)(ii) or any
other circumstances beyond such Lender's reasonable
control arising after the date of this Agreement
affecting such Lender or the London interbank market
or such Lender's position in such market, LIBOR as
determined by the Agent will not adequately and fairly reflect
the cost to such Lender of funding its LIBOR Advances,
then, and in any such event:
(i) the Agent shall forthwith give notice (by
telephone confirmed in writing) to ▇▇▇▇▇▇ and
to the other Lenders of such advice;
(ii) ▇▇▇▇▇▇'▇ right to request and such Lender's
obligation to make or permit portions of the
Revolving Loans to remain outstanding past the
last day of the then current Interest Periods
as LIBOR Advances shall be immediately
suspended; and
(iii) such Lender shall make a Revolving Loan as
part of the requested Borrowing of LIBOR
Advances as a Base Rate Advance, which such
Base Rate Advance shall, for all other
purposes, be considered part of such
Borrowing.
Section 3.11. Lending Offices. Each Lender agrees that,
if requested by ▇▇▇▇▇▇, it will use reasonable efforts
(subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with
respect to any of its LIBOR Advances affected by
the matters or circumstances described in Section
3.07(b), Section 3.08, Section 3.09 or Section 3.10 to reduce
the liability of ▇▇▇▇▇▇ or avoid the results provided
thereunder, so long as such designation is not disadvantageous
to such Lender as determined by such Lender, which
determination if made in good faith, shall be
conclusive and binding on all parties hereto.
Nothing in this Section 3.11 shall affect or
postpone any of the obligations of ▇▇▇▇▇▇ or any right of any
Lender provided hereunder.
Section 3.12. Funding Losses. ▇▇▇▇▇▇ shall compensate
each Lender, upon its written request to ▇▇▇▇▇▇ (which
request shall set forth the basis for requesting
such amounts in reasonable detail and which request
shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon
all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid
by such Lender to lenders of funds borrowed by it to
make or carry its LIBOR Advances, in either case to
the extent not recovered by such Lender in connection
with the reemployment of such funds), which the Lender
may sustain: (a) if for any reason (other than a
default by such Lender) a borrowing of, or
conversion to or continuation of, LIBOR Advances to ▇▇▇▇▇▇ does
not occur on the date specified therefor in a Notice of
Borrowing or Notice of Conversion/Continuation (whether
or not withdrawn), (b) if any repayment (including
mandatory prepayments and any conversions pursuant to
Section 3.09(b)) of any LIBOR Advances to ▇▇▇▇▇▇ occurs
on a date that is not the last day of an Interest
Period applicable thereto, or (c), if, for any reason, ▇▇▇▇▇▇
defaults in its obligation to repay its LIBOR
Advances when required by the terms of this Agreement.
Section 3.13. Assumptions Concerning Funding of LIBOR
Advances. Calculation of all amounts payable to a
Lender under this Article III shall be made as though
that Lender had actually funded its relevant LIBOR
Advances through the purchase of deposits in the
relevant market bearing interest at the rate
applicable to such LIBOR Advances in an amount equal to the
amount of the LIBOR Advances and having a maturity
comparable to the relevant Interest Period; provided,
however, that each Lender may fund each of its LIBOR
Advances in any manner it sees fit and the foregoing
assumption shall be used only for calculation of
amounts payable under this Article III.
Section 3.14. Apportionment of Payments. Aggregate
principal and interest payments in respect of Revolving
Loans and payments in respect of facility fees and
commitment fees shall be apportioned among all
outstanding Total Commitments and Revolving Loans to
which such payments relate proportionately to the
Lenders' respective Pro Rata Share of such Total Commitments and
outstanding Revolving Loans. The Agent shall use its
reasonable efforts to distribute promptly to each
Lender at its Payment Office its share of all such
payments received by the Agent on the same Business
Day such payments are received by Agent, but not later than the
next succeeding Business Day following receipt by Agent
of such payments if such payments are received by Agent
later than 11:00 A.M. (local time for the Agent).
Section 3.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment or reduction (including,
without limitation, any amounts received as adequate
protection of a deposit treated as cash collateral
under the Bankruptcy Code) of the Obligations (whether
voluntary, involuntary, through the exercise of any
right of set-off or otherwise) in excess of its Pro
Rata Share of payments or reductions of such Obligations
obtained by all the Lenders, such Lender shall forthwith
(a) notify each of the other Lenders and Agent of such
receipt, and (b) purchase from the other Lenders such
participations in the affected Obligations as shall
be necessary to cause such purchasing Lender to
share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of
them, provided that if all or any portion of such excess payment
or reduction is thereafter recovered from such
purchasing Lender or additional costs are incurred, the
purchase shall be rescinded and the purchase price
restored to the extent of such recovery or such
additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest
on such funds. ▇▇▇▇▇▇ agrees that any Lender so
purchasing a participation from another Lender
pursuant to this Section 3.15 may, to the fullest
extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct
creditor of ▇▇▇▇▇▇ in the amount of such participation.
Section 3.16. Capital Adequacy. Without limiting any
other provision of this Agreement, in the event that
any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital
adequacy not currently in effect or fully applicable
as of the Closing Date, or any change therein or in
the interpretation or application thereof after the Closing Date,
or compliance by such Lender with any request or
directive regarding capital adequacy not currently
in effect or fully applicable as of the Closing
Date (whether or not having the force of law and
whether or not failure to comply therewith would be
unlawful) from a central bank or governmental authority or
body having jurisdiction, does or shall have the
effect of reducing the rate of return on such
Lender's capital as a consequence of its obligations
hereunder to a level below that which such Lender could
have achieved but for such law, treaty, rule,
regulation, guideline or order, or such change or
compliance (taking into consideration such Lender's policies
with respect to capital adequacy) by an amount deemed
by such Lender to be material, then within ten (10)
Business Days after written notice and demand by such
Lender (with copies thereof to the Agent), ▇▇▇▇▇▇
shall from time to time pay to such Lender additional
amounts sufficient to compensate such Lender for such
reduction (but, in the case of outstanding Base Rate Advances,
without duplication of any amounts already recovered
by such Lender by reason of an adjustment in the
applicable Base Rate). Each certificate as to the
amount payable under this Section 3.16 (which
certificate shall set forth the basis for requesting such
amounts in reasonable detail), submitted to ▇▇▇▇▇▇ by any Lender
in good faith, shall, absent manifest error, be final,
conclusive and binding for all purposes.
Section 3.17. Benefits to Guarantors. In consideration
for the execution and delivery by the Guarantors
of their Guaranty Agreement, ▇▇▇▇▇▇ agrees to
make the benefit of extensions of credit hereunder
available to the Guarantors.
Section 3.18. Limitation on Certain Payment Obligations.
(a) Each Lender or Agent shall make written demand on
▇▇▇▇▇▇ for indemnification or compensation pursuant to
Section 3.07 no later than ninety (90) days after the
earlier of (i) the date on which such Lender or Agent
makes payment of such Taxes, or (ii) the date on
which the relevant taxing authority or other governmental
authority makes written demand upon such Lender or Agent for
payment of such Taxes.
(b) Each Lender or Agent shall make written demand on
▇▇▇▇▇▇ for indemnification or compensation pursuant to
Section 3.12 no later than ninety (90) days after the
event giving rise to the claim for indemnification or
compensation occurs.
(c) Each Lender or Agent shall make written demand on
▇▇▇▇▇▇ for indemnification or compensation pursuant to
Section 3.10 and Section 3.16 no later than three
hundred sixty-five (365) days after the occurrence
giving rise to a claim pursuant to such sections.
(d) In the event that the Lenders or Agent fail to give
▇▇▇▇▇▇ notice within the time limitations prescribed in
Section 3.18(a) or Section 3.18(b), ▇▇▇▇▇▇ shall not
have any obligation to pay such claim for compensation
or indemnification. In the event that the Lender or
Agent fail to give ▇▇▇▇▇▇ notice within the time
limitation prescribed in Section 3.18(c), ▇▇▇▇▇▇ shall
not have any obligation to pay any amount with respect to claims
accruing prior to the ninetieth (90th) day preceding such
written demand.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to ▇▇▇▇▇▇
hereunder is subject to the satisfaction of the
following conditions:
Section 4.01. Conditions Precedent to Initial Revolving
Loans. At the time of the funding of the initial
Revolving Loans hereunder, all obligations of ▇▇▇▇▇▇
hereunder incurred prior to the initial Revolving
Loans (including, without limitation, ▇▇▇▇▇▇'▇
obligations to reimburse the reasonable fees and
expenses of counsel to the Agent and any fees and expenses
payable to the Agent and the Lenders as previously
agreed with ▇▇▇▇▇▇), shall have been paid in full, and
the Agent shall have received the following, in
form and substance reasonably satisfactory in all
respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly completed Revolving Credit Notes evidencing
the Revolving Loan Commitments;
(c) the Guaranty Agreement, the Contribution Agreement,
the Word Pledge Agreement, the ▇▇▇▇▇▇
Pledge Agreement (all of which as to
▇▇▇▇▇▇ and its Subsidiaries shall be
deemed delivered immediately following
the consummation of the acquisition
referenced in Section 4.01(r)) and any and all other
Credit Documents required by Agent;
(d) closing certificate of ▇▇▇▇▇▇ in a form acceptable
to ▇▇▇▇▇▇, Lenders and their respective
counsel and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary
of each of the Credit Parties (all of
which as to ▇▇▇▇▇▇ and its
Subsidiaries shall be deemed delivered
immediately following the consummation of
the acquisition referenced in Section 4.01(r))
attaching and certifying copies of the resolutions
of the boards of directors of the Credit
Parties, authorizing as applicable (i)
the execution, delivery and performance
of the Credit Documents and (ii) the
granting of the pledges and security
interests granted pursuant to the Word Pledge
Agreement and the ▇▇▇▇▇▇ Pledge Agreement;
(f) certificates of the Secretary or an Assistant
Secretary of each of the Credit Parties
(all of which as to ▇▇▇▇▇▇ and its
Subsidiaries shall be deemed delivered
immediately following the consummation
of the acquisition referenced in
Section 4.01(r)) certifying (i) the name, title and
true signature of each officer of such entities
executing the Credit Documents, and (ii) the
bylaws or comparable governing documents of
such entities;
(g) certified copies of the certificate or articles of
incorporation of each Credit Party certified
by the Secretary of State, together with
certificates of good standing or existence,
as may be available from the Secretary of
State of the jurisdiction of
incorporation or organization of such Credit Party;
(h) examination reports from the Uniform Commercial Code
records of those locations set
forth on Schedule 4.01(h) attached
hereto, showing no outstanding liens
or security interests granted by any
Credit Party other than (i) Liens permitted by
Section 11.02, and (ii) Liens securing the
Refinanced Indebtedness which are being released on
the Closing Date;
(i) copies of all documents and instruments, including
all consents, approvals,
authorizations, registrations and filings
required or advisable under any
Requirement of Law or by any material
Contractual Obligation of the Credit Parties, in
connection with the execution, delivery,
performance, validity and enforceability of
the Credit Documents and the other
documents to be executed and delivered
hereunder, and such consents, approvals,
authorizations, registrations and filings
shall be in full force and effect and all applicable
waiting periods shall have expired;
(j) agreement by the lenders of the Refinanced
Indebtedness to accept payment in full
of all obligations outstanding under
the Refinanced Indebtedness and
termination of all credit facilities
relating thereto and to release all Liens
securing Refinanced Indebtedness, and the
establishment of escrow or other arrangements for
such repayment and release of Liens acceptable
to the Agent and the Lenders;
(k) certified copies of indentures, credit agreements,
instruments and other documents
evidencing or securing Indebtedness of
any Consolidated Company described on
Schedule 11.01(b), in any single case in
an amount not less than $500,000;
(l) certificates, reports and other information as the
Agent may reasonably request from any
Consolidated Company in order to satisfy
the Lenders as to the absence of any
material liabilities or obligations
arising from matters relating to employees of the
Consolidated Companies, including employee
relations, collective bargaining agreements,
Plans, and other compensation and employee
benefit plans;
(m) certificates, reports, environmental audits and
investigations, and other information as
the Agent may reasonably request from any
Consolidated Company in order to satisfy
the Lenders as to the absence of any
material liabilities or obligations arising from
Environmental Laws, including without limitation,
OSHA laws and regulations to which the Consolidated
Companies may be subject, and the plans
of the Consolidated Companies with respect
thereto;
(n) certificates, reports and other information as the
Agent may reasonably request from any
Consolidated Company in order to satisfy
the Lenders as to the absence of any
material liabilities or obligations
arising from litigation (including without
limitation, products liability and patent
infringement claims) pending or threatened
against the Consolidated Companies;
(o) a summary set forth in format and detail reasonably
acceptable to the Agent of the types and
amounts of insurance (property and
liability) maintained by the Consolidated
Companies;
(p) the favorable opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ and in-
house counsel to ▇▇▇▇▇▇, counsel to the
Credit Parties, in a form acceptable to
▇▇▇▇▇▇, Lenders and their respective
counsel and addressed to the Agent and
each of the Lenders; and
(q) financial statements of the Consolidated Companies
for their most recently completed fiscal
quarter on a consolidated basis.
(r) evidence that ▇▇▇▇▇▇'▇ acquisition of all of the
outstanding common stock of ▇▇▇▇▇▇ pursuant
to the terms of the Tender Offer and
Merger Agreement between ▇▇▇▇▇▇
Acquisition Corp. and ▇▇▇▇▇▇ dated
September 13, 1995, as amended October 16, 1995,
will be closed prior to or contemporaneously with
the funding of the Revolving Loans.
In addition to the foregoing, the following conditions shall have
been satisfied or shall exist, all to the satisfaction
of the Agent, as of the time the initial Revolving
Loans are made hereunder:
(x) the Revolving Loans to be made on the Closing Date
and the use of proceeds thereof
shall not contravene, violate or conflict
with, or involve the Agent or any Lender
in a violation of, any law, rule,
injunction or regulation, or determination of
any court of law or other governmental authority;
and
(y) all corporate proceedings and all other legal
matters in connection with the
authorization, legality, validity and
enforceability of the Credit Documents
shall be reasonably satisfactory in form
and substance to the Required Lenders.
Section 4.02. Conditions to Revolving Loans. At the time
of the making of all Revolving Loans (before as well
as after giving effect to such Revolving Loans and to
the proposed use of the proceeds thereof), the
following conditions shall have been satisfied or shall
exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by ▇▇▇▇▇▇
contained herein shall be true and correct
in all material respects with the same
effect as though such representations and
warranties had been made on and as of the
date of such Revolving Loans (except that
the representations and warranties set forth in
Section 6.19 shall not be deemed to relate to any
time subsequent to the date of the initial Revolving
Loans hereunder);
(c) since the date of the most recent financial
statements of the Consolidated Companies
described in Section 6.14, there shall
have been no change that has had or could
reasonably be expected to have a
Materially Adverse Effect in any Consolidated
Company's financial condition, properties, business,
operations or prospects (whether or not any notice
with respect to such change has been
furnished to the Lenders pursuant to
Section 9.07);
(d) there shall be no action or proceeding instituted or
pending before any court or other
governmental authority or, to the knowledge
of ▇▇▇▇▇▇, threatened that reasonably
could be expected to have a
Materially Adverse Effect in any Consolidated
Company's financial condition, properties, business,
operations or prospects, including without
limitation any action or proceeding seeking
to prohibit or restrict one or more
Credit Party's ownership or operation
of any portion of its business or
assets, or to compel one or more Credit
Party to dispose of or hold separate all or any
portion of its businesses or assets, where such
portion or portions of such business(es) or
assets, as the case may be, constitute a
material portion of the total businesses
or assets of the Consolidated Companies;
(e) the Revolving Loans to be made and the use of
proceeds thereof shall not contravene,
violate or conflict with, or involve the
Agent or any Lender in a violation of,
any law, rule, injunction or
regulation, or determination of any court of law or
other governmental authority applicable to ▇▇▇▇▇▇;
and
(f) the Agent shall have received such other documents
or legal opinions as the Agent or any
Lender may reasonably request, all in
form and substance reasonably
satisfactory to the Agent.
Each request for a Borrowing and the acceptance by elson
of the proceeds thereof shall constitute a
representation and warranty by ▇▇▇▇▇▇, as of the
date of the Revolving Loans comprising such
Borrowing, that the applicable conditions specified
in Section 4.01 and Section 4.02 have been satisfied.
ARTICLE V.
NOTICE PERIOD REGARDING CONDITIONS
▇▇▇▇▇▇, Agent and the Lenders hereby acknowledge that
prior to or contemporaneously with the funding of the
Revolving Loans, ▇▇▇▇▇▇ is acquiring all of the
outstanding common stock of ▇▇▇▇▇▇. Pursuant to Section
4.01(d), Section 4.01(f)(ii), Section 4.01(g), Section
4.01(h), Section 4.01(i), Section 4.01(k), Section
4.01(l), Section 4.01(m), Section 4.01(n), Section
4.01(o) and Section 4.01(q) and Section 4.02(b), Section 4.02(c)
and Section 4.02(d), ▇▇▇▇▇▇ is required to provide and
confirm to Agent certain information with respect
to the Consolidated Companies, including ▇▇▇▇▇▇ and
its Subsidiaries. Although ▇▇▇▇▇▇ has performed
certain due diligence in connection with its
acquisition of ▇▇▇▇▇▇, ▇▇▇▇▇▇ has not owned or been in control of
▇▇▇▇▇▇ and its Subsidiaries prior to the funding of the
Revolving Loans. Consequently, in order to provide
▇▇▇▇▇▇ with an opportunity to further review the
records and affairs of ▇▇▇▇▇▇ and its Subsidiaries in
connection with the information to be provided and confirmed
pursuant to Section 4.01(d), Section 4.01(f)(ii),
Section 4.01(g), Section 4.01(h), Section 4.01(i),
Section 4.01(k), Section 4.01(l), Section 4.01(m), Section
4.01(n), Section 4.01(o) and Section 4.01(q) and Section
4.02(b), Section 4.02(c) and Section 4.02(d),
▇▇▇▇▇▇, Agent and the Lenders agree that beginning
on the Closing Date and continuing for the three (3)
month period thereafter (the "Notice Period"), ▇▇▇▇▇▇
shall have the right to provide and confirm the
information required by Section 4.01(d), Section 4.01(f)(ii),
Section 4.01(g), Section 4.01(h), Section 4.01(i),
Section 4.01(k), Section 4.01(l), Section 4.01(m),
Section 4.01(n), Section 4.01(o) and Section 4.01(q)
and Section 4.02(b), Section 4.02(c) and Section 4.02(d)
with respect to ▇▇▇▇▇▇ and any of its Subsidiaries (the
"▇▇▇▇▇▇ Information"). During the Notice Period,
any information provided or confirmed pursuant to Section
4.01(d), Section 4.01(f)(ii), Section 4.01(g), Section 4.01(h),
Section 4.01(i), Section 4.01(k), Section 4.01(l),
Section 4.01(m), Section 4.01(n), Section 4.01(o) and
Section 4.01(q) and Section 4.02(b), Section 4.02(c) and
Section 4.02(d) with respect to ▇▇▇▇▇▇ and its
Subsidiaries shall not be subject to the provisions
of Section 12.03 hereto. All ▇▇▇▇▇▇ Information must
be in writing and received by Agent during the Notice Period.
Agent's receipt of the ▇▇▇▇▇▇ Information prior to the
end of the Notice Period shall not constitute an Event
of Default hereunder. In no event shall any ▇▇▇▇▇▇
Information be permitted with respect to ▇▇▇▇▇▇ or
any of its Subsidiaries other than ▇▇▇▇▇▇ and its
Subsidiaries. Upon termination of the Notice Period, all
information provided and confirmed pursuant to Section 4.01(d),
Section 4.01(f)(ii), Section 4.01(g), Section 4.01(h),
Section 4.01(i), Section 4.01(k), Section 4.01(l),
Section 4.01(m), Section 4.01(n), Section 4.01(o) and
Section 4.01(q) and Section 4.02(b), Section 4.02(c)
and Section 4.02(d), as amended by any ▇▇▇▇▇▇
Information, if any, shall be subject to the provisions of
Section 12.03. In addition to the foregoing, ▇▇▇▇▇▇, Agent
and the Lenders agree that during the Notice Period,
▇▇▇▇▇▇ shall have the right to provide and confirm the
information required by Section 4.01(h) with respect
to ▇▇▇▇▇▇ and any of its Subsidiaries (the
"UCC Information"). Any UCC Information delivered
to Agent during the Notice Period shall be added to
Schedule 11.02. During the Notice Period, any information
provided or confirmed pursuant to Section 4.01(h) shall
not be subject to the provisions of Section 12.03
hereto. All UCC Information must be in writing and
received by Agent during the Notice Period. Agent's
receipt of the UCC Information prior to the end of
the Notice Period shall not constitute an Event of
Default hereunder. Upon termination of the Notice Period, all
information provided and confirmed pursuant to Section
4.01(h), as amended by any UCC Information, shall
be subject to the provisions of Section 12.03.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
▇▇▇▇▇▇ (as to itself and all other Consolidated
Companies) represents and warrants (subject to the
provisions of Article VII) as follows:
Section 6.01. Corporate Existence; Compliance with Law.
Each of the Credit Parties is a corporation duly
organized, validly existing, and in good standing
under the laws of the jurisdiction of its
incorporation. Each of the Credit Parties (a) has the
corporate power and authority and the legal right to own
and operate its property and to conduct its business, (b) is duly
qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership
of property or the conduct of its business requires
such qualification, and (c) is in compliance with all
Requirements of Law, where (i) the failure to have such
power, authority and legal right as set forth in
Section 6.01(a), (ii) the failure to be so qualified or in good
standing as set forth in Section 6.01(b), or (iii) the
failure to comply with Requirements of Law as set forth
in Section 6.01(c), would reasonably be expected, in
the aggregate, to have a Materially Adverse Effect.
The jurisdiction of incorporation or organization, and
the ownership of all issued and outstanding capital
stock, for each Credit Party (other than ▇▇▇▇▇▇) as of
the date of this Agreement is accurately described on Schedule
6.01.
Section 6.02. Corporate Power; Authorization. Each of the
Credit Parties has the corporate power and authority
to make, deliver and perform the Credit Documents to
which it is a party and has taken all necessary
corporate action to authorize the execution, delivery
and performance of such Credit Documents. No consent
or authorization of, or filing with, any Person
(including, without limitation, any governmental authority), is
required in connection with the execution,
delivery or performance by any Credit Party,
or the validity or enforceability against any
Credit Party, of the Credit Documents, other than such
consents, authorizations or filings that have been
made or obtained.
Section 6.03. Enforceable Obligations. This Agreement has
been duly executed and delivered, and each other Credit
Document will be duly executed and delivered, by the
respective Credit Parties, and this Agreement
constitutes, and each other Credit Document when
executed and delivered will constitute, legal, valid
and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in
accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, or
similar laws affecting the enforcement of creditors'
rights generally and by general principles of
equity.
Section 6.04. No Legal Bar. The execution, delivery and
performance by the Credit Parties of the Credit
Documents will not violate any Requirement of Law or
cause a breach or default under any of their respective
Contractual Obligations which would have a Materially
Adverse Effect.
Section 6.05. No Material Litigation. Except as set forth
on Schedule 6.05, no litigation, investigations or
proceedings of or before any courts, tribunals,
arbitrators or governmental authorities are pending
or, to the knowledge of ▇▇▇▇▇▇, threatened by or
against any of the Consolidated Companies, or against
any of their respective properties or revenues, whether
such properties or revenues currently exist or may exist in the
future, (a) with respect to any Credit Document, or any
of the transactions contemplated hereby or thereby,
or (b) which, if adversely determined, would
reasonably be expected to have a Materially Adverse
Effect.
Section 6.06. Investment Company Act, Etc. None of the
Credit Parties is an "investment company" or a
company "controlled" by an "investment company" (as
each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended). None of
the Credit Parties is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money
borrowed, guarantee such indebtedness, or pledge its
assets to secure such indebtedness, as contemplated
hereby or by any other Credit Document.
Section 6.07. Margin Regulations. No part of the proceeds
of any of the Revolving Loans will be used for any
purpose that violates, or that would be inconsistent
or not in compliance with, the provisions of the
applicable Margin Regulations.
Section 6.08. Compliance With Environmental Laws. (a) The
Consolidated Companies have received no notices of
claims or potential liability under, and are in
compliance with, all applicable Environmental Laws,
where such claims and liabilities under, and failures
to comply with, such statutes, regulations, rules,
ordinances, laws or licenses, would reasonably be expected
to result in penalties, fines, claims or other liabilities to
the Consolidated Companies in amounts in excess of
$1,000,000, either individually or in the aggregate
(including any such penalties, fines, claims, or
liabilities relating to the matters set forth on
Schedule 6.08(a)), except as set forth on Schedule 6.08(a).
(b) Except as set forth on Schedule 6.08(b), none of the
Consolidated Companies has received any notice of
violation, or notice of any action, either judicial or
administrative, from any governmental authority
(whether United States or foreign) relating to the
actual or alleged violation of any Environmental Law,
including, without limitation, any notice of any actual or
alleged spill, leak or other release of any Hazardous
Substance, waste or hazardous waste by any
Consolidated Company or its employees or agents, or
as to the existence of any contamination on any
properties owned by any Consolidated Company, where any
such violation, spill, leak, release or contamination would
reasonably be expected to result in penalties, fines,
claims or other liabilities to the Consolidated
Companies in amounts in excess of $1,000,000, either
individually or in the aggregate.
(c) Except as set forth on Schedule 6.08(c), the
Consolidated Companies have obtained all necessary
governmental permits, licenses and approvals that
are material to the operations conducted on their
respective properties, including without limitation,
all required material permits, licenses and approvals
for (i) the emission of air pollutants or contaminants,
(ii) the treatment or pretreatment and discharge of waste water
or storm water, (iii) the treatment, storage,
disposal or generation of hazardous wastes, (iv) the
withdrawal and usage of ground water or surface water,
and (v) the disposal of solid wastes.
Section 6.09. Insurance. The Consolidated Companies
currently maintain insurance with respect to their
respective properties and businesses, with financially
sound and reputable insurers, having coverages against
losses or damages of the kinds customarily insured
against by reputable companies in the same or similar
businesses, such insurance being in amounts no less than
those amounts that are customary for such companies under similar
circumstances. The Consolidated Companies have paid all
material amounts of insurance premiums now due and
owing with respect to such insurance policies and
coverages, and such policies and coverages are in full
force and effect.
Section 6.10. No Default. None of the Consolidated
Companies is in default under or with respect to any
Contractual Obligation in any respect that has had or
is reasonably expected to have a Materially Adverse
Effect.
Section 6.11. No Burdensome Restrictions. Except as set
forth on Schedule 6.11, none of the Consolidated
Companies is a party to or bound by any Contractual
Obligation or Requirement of Law that has had or
would reasonably be expected to have a Materially
Adverse Effect.
Section 6.12. Taxes. Except as set forth on
Schedule 6.12, each of the Consolidated Companies has
filed or caused to be filed all declarations, reports
and tax returns or tax extensions that are required to
have been filed, and has paid all taxes, custom duties,
levies, charges and similar contributions ("taxes"
in this Section 6.12) shown to be due and payable on
said returns or on any assessments made against them
or their properties, and all other taxes, fees or other charges
imposed on them or any of their properties by any
governmental authority (other than those the amount or
validity of which is currently being contested in
good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have
been provided in its books); and no tax liens have been
filed and, to the knowledge of ▇▇▇▇▇▇, no claims are being
asserted with respect to any such taxes, fees or other
charges.
Section 6.13. Subsidiaries. Except as disclosed on
Schedule 6.13, on the date of this Agreement, ▇▇▇▇▇▇
has no Subsidiaries and neither ▇▇▇▇▇▇ nor any
Subsidiary is a joint venture partner or general
partner in any partnership. After the date of this
Agreement and funding of the Obligations, except as
disclosed on Schedule 6.13, ▇▇▇▇▇▇ shall have no Subsidiaries.
PrintPlus Publications, Inc., a Tennessee
corporation and previously a Subsidiary of ▇▇▇▇▇▇, is
no longer a Subsidiary of ▇▇▇▇▇▇. ▇▇▇▇▇▇ has no
interest in PrintPlus Publications, Inc. TNI Cassette
Corp., a validly existing Texas corporation and
Subsidiary of ▇▇▇▇▇▇, was previously known as International
Cassette Corp. prior to its name change. Attached
hereto as Exhibit C is a true and correct copy of the
document evidencing the name change from International
Cassette Corp. to TNI Cassette Corp. ▇▇▇▇▇▇ Word
Limited, a validly existing United Kingdom
corporation and Subsidiary of ▇▇▇▇▇▇, was previously known as
Word (UK) Limited prior to its name change. Attached
hereto as Exhibit D is a true and correct copy of the
document evidencing the name change from Word (UK)
Limited to ▇▇▇▇▇▇ Word Limited.
Section 6.14. Financial Statements. ▇▇▇▇▇▇ has furnished
to the Agent and the Lenders (a) the audited consolidated
balance sheet as of March 31, 1995 of the Consolidated
Companies and the related consolidated statements of
income, shareholders' equity and cash flows for the
fiscal year then ended, including in each case the
related schedules and notes, and (b) the unaudited
balance sheet of the Consolidated Companies presented on a
consolidated basis as at the end of the second fiscal
quarter of 1995, and the related unaudited
consolidated statements of income, shareholders'
equity and cash flows presented on a consolidated
basis for the year-to-date period then ended,
setting forth in each case in comparative form the figures for
the corresponding quarter of the Consolidated Companies'
previous fiscal year. The foregoing financial statements
fairly present in all material respects the consolidated
financial condition of the Consolidated Companies as at
the dates thereof and results of operations for such
periods in conformity with GAAP consistently applied
(subject, in the case of the quarterly financial
statements, to normal year-end audit adjustments and the absence
of certain footnotes). The Consolidated Companies
taken as a whole do not have any material contingent
obligations, material contingent liabilities, or
material liabilities for known taxes, long-term leases
(except leases as set forth on Schedule 6.14 hereto)
or unusual forward or long-term commitments not reflected
in the foregoing financial statements or the notes thereto. Since
March 31, 1995, there have been no changes with
respect to the Consolidated Companies that has had
or would reasonably be expected to have a Materially
Adverse Effect.
Section 6.15. ERISA. Except as disclosed on Schedule
6.15:
(a) Identification of Plans. None of the Consolidated
Companies nor any of their respective ERISA Affiliates
maintains or contributes to, or has during the past two
years maintained or contributed to, any Plan that is
subject to Title IV of ERISA.
(b) Compliance. Each Plan maintained by the Consolidated
Companies has at all times been maintained by its terms
and in operation in compliance with all applicable
laws, and the Consolidated Companies are subject to
no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof,
including without limitation, any tax or penalty
under Title I or Title IV of ERISA or under Chapter 43 of
the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 162, 404 or 419 of the Tax
Code, where the failure to comply with such laws,
and such taxes and penalties, together with all
other liabilities referred to in this Section 6.15
(taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(c) Liabilities. The Consolidated Companies are subject
to no liabilities (including withdrawal liabilities) with
respect to any Plans of such Consolidated Companies or
any of their ERISA Affiliates, including without
limitation, any liabilities arising from Titles I or
IV of ERISA, other than obligations to fund benefits
under an ongoing Plan and to pay current contributions,
expenses and premiums with respect to such Plans where such
liabilities, together with all other liabilities
referred to in this Section 6.15 (taken as a whole),
would in the aggregate have a Materially Adverse Effect;
(d) Funding. The Consolidated Companies and, with
respect to any Plan that is subject to Title IV of ERISA,
each of their respective ERISA Affiliates, have made
full and timely payment of all amounts (i) required to
be contributed under the terms of each Plan and
applicable law, and (ii) required to be paid as
expenses (including PBGC or other premiums) of each Plan,
where the failure to pay such amounts (when taken as a whole,
including any penalties attributable to such amounts)
would have a Materially Adverse Effect. No Plan subject
to Title IV of ERISA has an "amount of unfunded benefit
liabilities" (as defined in Section 4001(a)(18) of ERISA),
determined as if such Plan terminated on any date
on which this representation and warranty is deemed
made, in any amount that, together with all other
liabilities referred to in this Section 6.15 (taken as a whole),
would have a Materially Adverse Effect if such amount
were then due and payable. The Consolidated Companies
are subject to no liabilities with respect to post-
retirement medical benefits in any amounts that,
together with all other liabilities referred to in this
Section 6.15 (taken as a whole), would have a Materially
Adverse Effect if such amounts were then due and payable.
Section 6.16. Patents, Trademarks, Licenses, Etc. Except
as set forth on Schedule 6.16, (a) the Consolidated
Companies have obtained and hold in full force and
effect all material patents, trademarks, service
marks, trade names, copyrights, licenses and other
such rights, free from burdensome restrictions,
that are necessary for the operation of their
respective businesses as presently conducted, and (b) to the best
of ▇▇▇▇▇▇'▇ knowledge, no product, process, method,
service or other item presently sold by or employed
by any Consolidated Company in connection with such
business infringes any patents, trademark, service
▇▇▇▇, trade name, copyright, license or other right
owned by any other Person and there is not presently
pending, or to the knowledge of ▇▇▇▇▇▇, threatened, any claim
or litigation against or affecting any
Consolidated Company contesting such Person's right to
sell or use any such product, process, method,
substance or other item where the result of such failure
to obtain and hold such benefits or such infringement
would have a Materially Adverse Effect.
Section 6.17. Ownership of Property. Except as set forth
on Schedule 6.17, each Consolidated Company has
good and marketable fee simple title to or a valid
leasehold interest in all of its real property and good
title to, or a valid leasehold interest in, all of its
other property, as such properties are reflected in
the consolidated balance sheet of the Consolidated
Companies as of March 31, 1995 referred to in Section 6.14, other
than properties disposed of in the ordinary course of
business since such date or as otherwise permitted by
the terms of this Agreement, subject to no Lien or
title defect of any kind, except Liens permitted
hereby and title defects not constituting material
impairments in the intended use for such properties. The
Consolidated Companies enjoy peaceful and undisturbed possession
under all of their respective leases. Those locations
set forth on Schedule 4.01(h) are all of the
locations (a) at which property owned or leased by the
Consolidated Companies is located other than property
in transit in the ordinary course of business,
and (b) representing each of the Consolidated
Companies' place of business if only one (1) exists or chief
executive office if more than one (1) place of business
exists.
Section 6.18. Indebtedness. (a) Except as set forth on
Schedule 6.18 and Schedule 11.01(b), none of the
Consolidated Companies is an obligor in respect of
any Indebtedness for borrowed money, or any
commitment to create or incur any Indebtedness for
borrowed money, in an amount not less than $500,000
in any single case, and such Indebtedness and
commitments for amounts less than $500,000 do not exceed
$2,000,000 in the aggregate for all such
Indebtedness and commitments of the Consolidated
Companies.
(b) The Indebtedness listed on Schedule 6.18 (the
"Refinanced Indebtedness") and accrued and unpaid
interest thereon and fees in respect thereof have
been paid in full or provision for restructuring such
Indebtedness hereunder has been made such that, in
accordance with the express provisions of the
instruments governing the same, upon funding of the initial
Revolving Loans hereunder, the Consolidated Companies
will be released from all liability and contractual
obligations with respect thereto other than
indemnifications contained therein, and releases in
recordable form of any and all Liens previously
securing the Refinanced Indebtedness will be obtained, including
terminations of all financing statements and other
filings in respect thereof.
Section 6.19. Financial Condition. On the Closing Date
and after giving effect to the transactions contemplated
by this Agreement and the other Credit Documents,
including without limitation, the use of the proceeds
as provided in Section 2.02, (a) the assets of each
Credit Party at fair valuation and based on their
present fair saleable value (including, without
limitation, the fair and realistic value of any contribution or
subrogation rights in respect of any Guaranty Agreement
given by such Credit Party) will exceed such
Credit Party's debts, including contingent
liabilities (as such liabilities may be limited under
the express terms of any Guaranty Agreement of such
Credit Party), (b) the remaining capital of such Credit Party
will not be unreasonably small to conduct the Credit
Party's business, and (c) such Credit Party will not
have incurred debts, or have intended to incur
debts, beyond the Credit Party's ability to pay such
debts as they mature. For purposes of this Section
6.19, "debt" means any liability on a claim, and "claim"
means (A) the right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (B) the
right to an equitable remedy for breach of performance
if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
Section 6.20. Labor Matters. Except as set forth in
Schedule 6.20, the Consolidated Companies have
experienced no strikes, labor disputes, slow downs or work
stoppages due to labor disagreements that have had,
or would reasonably be expected to have, a
Materially Adverse Effect, and, to the best knowledge
of ▇▇▇▇▇▇, there are no such strikes, disputes, slow
downs or work stoppages threatened against any Consolidated
Company. The hours worked and payment made to
employees of the Consolidated Companies have not been in
violation in any material respect of the Fair Labor
Standards Act or any other applicable law dealing
with such matters. All payments due from the
Consolidated Companies, or for which any claim may be made
against the Consolidated Company, on account of
wages and employee health and welfare insurance and
other benefits have been paid or accrued as
liabilities on the books of the Consolidated
Companies where the failure to pay or accrue such
liabilities would reasonably be expected to have a Materially
Adverse Effect.
Section 6.21. Payment or Dividend Restrictions. Except as
set forth in Section 11.04 or described on Schedule 6.21,
none of the Consolidated Companies is party to or
subject to any agreement or understanding restricting
or limiting the payment of any dividends or other
distributions by any such Consolidated Company.
Section 6.22. Disclosure. No factual information,
representation or warranty contained in this Agreement
(including the Schedules attached hereto) or in any
other document furnished from time to time pursuant to
the terms of this Agreement, when viewed in
conjunction with all such other factual information,
representations or warranties in this Agreement or in any other
document furnished pursuant to the terms of this
Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit to
state any material fact necessary to make the
statements herein or therein not misleading in any
material respect as of the date made or deemed to be made. Except
as may be set forth herein (including the Schedules
attached hereto) or in any notice furnished to the
Lenders pursuant to Section 9.07 at or prior to
the respective times the representations and
warranties set forth in this Section 6.22 are made or
deemed to be made hereunder, there is no fact known to
▇▇▇▇▇▇ that has had, or is reasonably expected to have, a
Materially Adverse Effect.
Section 6.23. Financial Covenants. Schedule 6.23 sets
forth the true and correct calculation of the financial
covenant amounts, ratios, and percentages required
by Section 9.08(a) through Section 9.08(c) calculated
as of September 30, 1995.
ARTICLE VII.
REPRESENTATION AND WARRANTY NOTICE PERIOD
▇▇▇▇▇▇, Agent and the Lenders hereby acknowledge that
prior to or contemporaneously with the funding of the
Revolving Loans, ▇▇▇▇▇▇ is acquiring all of the
outstanding common stock of ▇▇▇▇▇▇. Pursuant to
Article VI, ▇▇▇▇▇▇ is making certain
representations and warranties with respect to the Consolidated
Companies, including ▇▇▇▇▇▇ and its Subsidiaries.
Although ▇▇▇▇▇▇ has performed certain due diligence
in connection with its acquisition of ▇▇▇▇▇▇, ▇▇▇▇▇▇
has not owned or been in control of ▇▇▇▇▇▇ and its
Subsidiaries prior to the funding of the Revolving
Loans. Consequently, in order to provide ▇▇▇▇▇▇ with an
opportunity to further review the records and affairs
of ▇▇▇▇▇▇ and its Subsidiaries in connection with the
representations and warranties made in Article VI,
▇▇▇▇▇▇, Agent and the Lenders agree that during the
Notice Period, ▇▇▇▇▇▇ shall have the right to modify
this Agreement by adding to Article VI any schedules
that ▇▇▇▇▇▇ ▇▇▇▇▇ necessary to correct, clarify and/or modify any
representation or warranty made with respect to ▇▇▇▇▇▇
and any of its Subsidiaries (the "▇▇▇▇▇▇
Corrections"). During the Notice Period, any
representations and warranties contained in Article VI
with respect to ▇▇▇▇▇▇ and its Subsidiaries shall not be
subject to the provisions of Section 12.04. All
▇▇▇▇▇▇ Corrections must be in writing and received by
Agent during the Notice Period. Agent's receipt of a
▇▇▇▇▇▇ Correction prior to the end of the Notice
Period shall not constitute an Event of Default
hereunder. In no event shall any ▇▇▇▇▇▇ Correction be
permitted with respect to ▇▇▇▇▇▇ or any of its Subsidiaries other
than ▇▇▇▇▇▇ and its Subsidiaries. Upon termination of
the Notice Period, all representations and warranties
contained in Article VI, as amended by any ▇▇▇▇▇▇
Corrections, if any, shall be subject to the
provisions of Section 12.04.
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES REGARDING
ARTICLE VIII SUBSIDIARIES
▇▇▇▇▇▇ represents and warrants that the market value of
the assets owned by those Subsidiaries of ▇▇▇▇▇▇ set
forth on Schedule VIII are within the ranges set
forth opposite the respective names of such
Subsidiaries on Schedule VIII. Any Subsidiary that
executes a Guaranty Agreement and related
documents as set forth in Section 9.12 or Section 12.13 shall be
deemed removed from Schedule VIII.
ARTICLE IX.
AFFIRMATIVE COVENANTS
So long as any Revolving Loan Commitment remains in
effect hereunder or any Revolving Credit Note shall
remain unpaid, ▇▇▇▇▇▇ will:
Section 9.01. Corporate Existence, Etc. Preserve and
maintain, and cause each of the Credit Parties to
preserve and maintain, its corporate existence,
its material rights, franchises, and licenses, and
its material patents and copyrights (for the scheduled
duration thereof), trademarks, trade names, and
service marks, necessary or desirable in the normal conduct
of its business, and its qualification to do business as
a foreign corporation in all jurisdictions where
it conducts business or other activities making such
qualification necessary, where the failure to be so
qualified would reasonably be expected to have a
Materially Adverse Effect.
Section 9.02. Compliance with Laws, Etc. Comply, and
cause each of its Subsidiaries to comply with all
Requirements of Law (including, without limitation,
the Environmental Laws subject to the exception set
forth in Section 6.08 where the penalties, claims,
fines, and other liabilities resulting from
noncompliance with such Environmental Laws do not involve amounts
in excess of $1,000,000 in the aggregate) and
Contractual Obligations applicable to or binding on
any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would
reasonably be expected to have a Materially Adverse
Effect.
Section 9.03. Payment of Taxes and Claims, Etc. Pay, and
cause each of its Subsidiaries to pay, (a) all taxes,
assessments and governmental charges imposed upon it
or upon its property, and (b) all claims (including,
without limitation, claims for labor, materials,
supplies or services) that might, if unpaid, become a
Lien upon its property, unless, in each case, the
validity or amount thereof is being contested in good faith by
appropriate proceedings and adequate reserves are
maintained with respect thereto.
Section 9.04. Keeping of Books. Keep, and cause each of
its Subsidiaries to keep, proper books of record and
account, containing complete and accurate entries in all
material respects of all their respective financial and
business transactions.
Section 9.05. Visitation, Inspection, Etc. Permit, and
cause each of its Subsidiaries to permit, any
representative of the Agent or any Lender to visit and
inspect any of its property, to examine its books and
records and to make copies and take extracts
therefrom, and to discuss its affairs, finances and accounts
with its officers, all at such reasonable times and as
often as the Agent or such Lender may reasonably request after
reasonable prior notice to ▇▇▇▇▇▇; provided, however,
that at any time following the occurrence and during
the continuance of a Default or an Event of Default,
no prior notice to ▇▇▇▇▇▇ shall be required.
Section 9.06. Insurance; Maintenance of Properties. (a)
Maintain or cause to be maintained with financially
sound and reputable insurers, insurance with respect to
its properties and business, and the properties and
business of its Subsidiaries, against loss or damage
of the kinds customarily insured against by reputable
companies in the same or similar businesses, such
insurance to be of such types and in such amounts as is customary
for such companies under similar circumstances;
provided, however, that in any event ▇▇▇▇▇▇ shall use
its best efforts to maintain, or cause to be
maintained, insurance in amounts and with coverages
not materially less favorable to any Consolidated
Company as in effect on the date of this Agreement, except where
the costs of maintaining such insurance would, in the
judgment of both ▇▇▇▇▇▇ and the Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies
to cause, all properties used or useful in the
conduct of its business to be maintained and kept in
good condition, repair and working order and supplied
with all necessary equipment and will cause to be made
all necessary repairs, renewals, replacements,
settlements and improvements thereof, all as in the judgment of
▇▇▇▇▇▇ may be necessary so that the business carried
on in connection therewith may be properly and
advantageously conducted at all times; provided,
however, that nothing in this Section 9.06(b) shall
prevent ▇▇▇▇▇▇ from discontinuing the operation or
maintenance of any such properties if such discontinuance is, in
the judgment of ▇▇▇▇▇▇, desirable in the conduct of its
business or the business of any Consolidated Company.
Section 9.07. Reporting Covenants. Furnish to each
Lender:
(a) Annual Financial Statements. As soon as available
and in any event within ninety (90) days after the end
of each fiscal year of ▇▇▇▇▇▇, balance sheets of
the Consolidated Companies as at the end of such year,
presented on a consolidated and consolidating basis,
and the related statements of income, shareholders'
equity, and cash flows of the Consolidated
Companies for such fiscal year, presented on a consolidated and
consolidating basis (which consolidating report need
not be audited), setting forth in each case in
comparative form the figures for the previous fiscal
year as then reported, all in reasonable detail and
accompanied by a report thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Co. or other independent public accountants of
comparable recognized national standing, which such report shall
be unqualified as to going concern and scope of audit and shall
state that such financial statements present fairly
in all material respects the financial condition as at
the end of such fiscal year on a consolidated
basis, and the results of operations and
statements of cash flows of the Consolidated
Companies for such fiscal year in accordance with GAAP and that
the examination by such accountants in connection
with such consolidated financial statements has been
made in accordance with generally accepted auditing
standards;
(b) Quarterly Financial Statements. As soon as available
and in any event within sixty (60) days after the end
of each fiscal quarter of ▇▇▇▇▇▇ (other than the fourth
fiscal quarter), balance sheets of the Consolidated
Companies as of the end of such quarter presented on
a consolidated basis and the related statements of
income, shareholders' equity, and cash flows of the
Consolidated Companies for such fiscal quarter and for the
portion of ▇▇▇▇▇▇'▇ fiscal year ended at the end of such
quarter, presented on a consolidated basis setting
forth in each case in comparative form the figures
for the corresponding quarter and the corresponding
portion of ▇▇▇▇▇▇'▇ previous fiscal year, all in
reasonable detail and certified by the chief financial officer
or principal accounting officer of ▇▇▇▇▇▇ that such
financial statements fairly present in all material
respects the financial condition of the Consolidated
Companies as of the end of such fiscal quarter on a
consolidated basis, and the results of operations
and statements of cash flows of the Consolidated
Companies for such fiscal quarter and such portion of ▇▇▇▇▇▇'▇
fiscal year, in accordance with GAAP consistently
applied (subject to normal year-end audit adjustments
and the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to Section
9.07(a) and Section 9.07(b), a certificate of the
president, chief financial officer or principal
accounting officer of ▇▇▇▇▇▇ (i) to the effect that,
based upon a review of the activities of the
Consolidated Companies and such financial statements during the
period covered thereby, there exists no Event of Default
and no Default under this Agreement, or if there
exists an Event of Default or a Default hereunder,
specifying the nature thereof and the proposed
response thereto, and (ii) demonstrating in
reasonable detail compliance as of the end of such fiscal year or
such fiscal quarter with Section 9.08 and Section 11.01
through Section 11.05;
(d) Auditor's No Default Certificate. Together with the
financial statements required pursuant to Section
9.07(a), a certificate of the accountants who prepared
the report referred to therein, to the effect that,
based upon their audit, there exists no Default or
Event of Default under this Agreement, or if there exists a
Default or Event of Default hereunder, specifying the
nature thereof;
(e) Notice of Default. Promptly after any Executive
Officer of ▇▇▇▇▇▇ has notice or knowledge of the
occurrence of an Event of Default or a Default, a
certificate of the chief financial officer or
principal accounting officer of ▇▇▇▇▇▇ specifying the
nature thereof and the proposed response thereto;
(f) Asset Sales. Together with the financial statements
required pursuant to Section 9.07(a), a certificate of
the chief financial officer or principal accounting
officer of ▇▇▇▇▇▇ reporting all Asset Sales effected
by the Consolidated Companies during the fiscal year
covered by such financial statements which involved
Asset Values in excess of $100,000 in any single
transaction or related series of transactions, including the
Asset Value of such assets and the amounts received
by the Consolidated Companies with respect to such
sales, and such other information regarding such
transactions as the Agent or any Lender may
reasonably request;
(g) Litigation. Promptly after (i) the occurrence
thereof, notice of the institution of or any material
adverse development in any material action, suit or
proceeding or any governmental investigation or any
arbitration, before any court or arbitrator or any
governmental or administrative body, agency or official,
against any Consolidated Company, or any material
property of any thereof, or (ii) actual knowledge thereof, notice
of the threat of any such action, suit, proceeding,
investigation or arbitration;
(h) Environmental Notices. Promptly after receipt
thereof, notice of any actual or alleged violation, or
notice of any action, claim or request for information,
either judicial or administrative, from any
governmental authority relating to any actual or
alleged claim, notice of potential liability under or
violation of any Environmental Law, or any actual or alleged
spill, leak, disposal or other release of any waste,
petroleum product, or hazardous waste or Hazardous
Substance by any Consolidated Company that could
result in penalties, fines, claims or other
liabilities to any Consolidated Company in amounts
in excess of $250,000;
(i) ERISA. (i) Promptly after ▇▇▇▇▇▇ has knowledge
or should have had knowledge of the occurrence
thereof with respect to any Plan of any
Consolidated Company or any ERISA Affiliate
thereof, or any trust established thereunder,
notice of (A) a "reportable event" described in
Section 4043 of ERISA and the regulations issued from
time to time thereunder (other than a "reportable event"
not subject to the provisions for 30-day notice
to the PBGC under such regulations), or (B)
any other event which could reasonably be expected
to subject any Consolidated Company to any
tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Tax
Code, or any tax or penalty resulting from a loss of
deduction under Sections 162, 404 or 419 of the Tax Code,
or any tax, penalty or liability under any
Requirement of Law applicable, where any
such taxes, penalties or liabilities exceed
or could reasonably be expected to exceed
$250,000 in the aggregate;
(ii) Promptly after such notice must be provided to
the PBGC, or to a Plan participant,
beneficiary or alternative payee, any notice
referred to or required under Section
101(d), 302(f)(4), 303, 307 or
4041(c)(1)(A) of ERISA or under Section 412 of the Tax
Code with respect to any Plan of any Consolidated Company
or any ERISA Affiliate thereof;
(iii) Promptly after receipt, (A) any notice
received by any Consolidated Company or
any ERISA Affiliate thereof concerning the
intent of the PBGC or any other governmental
authority to terminate a Plan of such
Consolidated Company or ERISA Affiliate thereof that
is subject to Title IV of ERISA, (B) any notice received
by any Consolidated Company or any ERISA
Affiliate thereof concerning the intent of the
PBGC or any other governmental authority to
impose any liability on such Consolidated
Company or ERISA Affiliate thereof under
Title IV of ERISA, or (C) any notice received by any
Consolidated Company or any ERISA Affiliate thereof
concerning the intent of the Internal Revenue
Service or any other governmental authority to
impose any liability on such Consolidated
Company or ERISA Affiliate thereof under
Chapter 43 of the Tax Code, which action under
Section 9.07(i)(iii)(C) could reasonably be expected to
have a Materially Adverse Effect;
(iv) Upon the request of the Agent, promptly upon
the filing thereof with the Internal Revenue
Service ("IRS") or the Department of Labor
("DOL"), a copy of IRS Form 5500 or annual
report for each Plan of any Consolidated
Company or ERISA Affiliate thereof that is
subject to Title IV of ERISA;
(v) Upon the request of the Agent, (A) true and
complete copies of any and all documents,
government reports and IRS determination or
opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL,
(B) any reports filed with the IRS, PBGC or
DOL with respect to a Plan of the Consolidated
Companies or any ERISA Affiliate thereof, or (C) a
current statement of withdrawal liability for each
Multiemployer Plan of any Consolidated Company or any
ERISA Affiliate thereof;
(j) Liens. Promptly upon any Consolidated Company
becoming aware thereof, notice of the filing of any
federal statutory Lien, tax or other state or local
government Lien or any other Lien affecting their
respective properties, other than those Liens expressly
permitted by Section 11.02;
(k) Public Filings, Etc. Promptly upon the filing
thereof or otherwise becoming available, copies of all
financial statements, annual, quarterly and
special reports, proxy statements and notices sent or
made available generally by ▇▇▇▇▇▇ to its public
security holders, of all regular and periodic
reports and all registration statements and prospectuses, if any,
filed by any of them with any securities exchange,
and of all financial press releases and other
statements made available generally to the public
containing material developments in the business or
financial condition of ▇▇▇▇▇▇ and the other
Consolidated Companies;
(l) Accountants' Reports. Promptly upon receipt thereof,
copies of all financial statements of, and all reports
submitted by, independent public accountants to any
of the Consolidated Companies in connection with
each annual, interim or special audit of the
Consolidated Companies' financial statements,
including without limitation, the comment letter submitted by
such accountants to management in connection with
their annual audit;
(m) Burdensome Restrictions, Etc. Promptly upon the
existence or occurrence thereof, notice of the
existence or occurrence of (i) any Contractual
Obligation or Requirement of Law described in Section
6.11, (ii) failure of any Consolidated Company to
hold in full force and effect those material
trademarks, service marks, patents, trade names, copyrights,
licenses and similar rights necessary in the normal
conduct of its business, and (iii) any strike, labor
dispute, slow down or work stoppage as described in
Section 6.20;
(n) New Subsidiaries. Within thirty (30) days after the
formation or acquisition of any Subsidiary, or any
other event resulting in the creation of a new
Subsidiary, notice of the formation or acquisition of
such Subsidiary or such occurrence, including a
description of the assets of such entity, the
activities in which it will be engaged, and such other
information as the Agent may request;
(o) Intercompany Asset Transfers. Promptly upon the
occurrence thereof, notice of the transfer of any assets
from any Consolidated Company to any other
Consolidated Company (in any transaction or series of
related transactions), excluding sales or other transfers of
assets in the ordinary course of business, where the
Asset Value of such assets is greater than $1,000,000;
(p) Asset sales. At any time that the aggregate amount
of Asset Sales made by the Consolidated Companies after
December 13, 1995 exceeds $2,500,000 (based on the
Asset Values), prompt notice of any additional Asset
Sale or related series of Asset Sales involving Asset
Values of $100,000 or more; and
(q) Other Information. With reasonable promptness, such
other information about the Consolidated Companies as
the Agent or any Lender may reasonably request from time
to time.
Section 9.08. Financial Covenants.
(a) Interest Coverage Ratio. Maintain as of the last day
of each fiscal quarter, a minimum Interest Coverage
Ratio, calculated for the immediately preceding four
fiscal quarters, as shown below for each fiscal quarter
indicated:
Fiscal Quarter Minimum Ratio
-------------- -------------
Through March 31, 1997 2.00:1.00
Thereafter 2.50:1.00
(b) Funded Debt to Total Capital. Cause the Consolidated
Companies to maintain on a consolidated basis as of the
last day of each fiscal quarter, a maximum ratio of
Funded Debt to Total Capital, calculated quarterly, as
shown below for each fiscal quarter ending during the
fiscal quarters indicated:
Fiscal Quarter Maximum Ratio
-------------- -------------
Through March 31, 1997 .65:1.00
Thereafter .60:1.00
(c) Senior Funded Debt to Total Capital. Cause the
Consolidated Companies to maintain on a consolidated
basis as of the last day of each fiscal quarter, a
maximum ratio, expressed as a percentage, of Senior
Funded Debt to Total Capital, calculated quarterly,
of 50% (.50:1.00) for each fiscal quarter.
Section 9.09. Notices under Certain Other Indebtedness.
Immediately upon ▇▇▇▇▇▇'▇ receipt thereof, furnish the
Agent a copy of any notice received by it or any
other Consolidated Company from the holder(s) of
Indebtedness referred to in Section 11.01(b), Section
11.01(e) or Section 11.01(f) (or from any trustee,
agent, attorney, or other party acting on behalf of such
holder(s)) in an amount that exceeds $500,000, where such notice
states or claims (a) the existence or occurrence of any
actual or alleged default or event of default with
respect to such Indebtedness under the terms of any
indenture, loan or credit agreement, debenture, note or
other document evidencing or governing such
Indebtedness, or (b) the existence or occurrence of any
event or condition that requires or permits holder(s) of
any Indebtedness to exercise rights under any Change in
Control Provision. ▇▇▇▇▇▇ agrees to take such actions as
may be necessary to require the holder(s) of any
Indebtedness (or any trustee or agent acting on their
behalf) incurred pursuant to documents executed or
amended and restated after the Closing Date, to
furnish copies of all such notices directly to the Agent
simultaneously with the furnishing thereof to ▇▇▇▇▇▇,
and that such requirement may not be altered or
rescinded without the prior written consent of the
Agent.
Section 9.10. Additional Credit Parties and Collateral.
Promptly after the formation, creation or acquisition
(provided that nothing in this Section 9.10 shall be
deemed to authorize the acquisition of any entity) of
any Subsidiary not listed on Schedule 6.13 or the
name change of any Subsidiary listed on Schedule
6.01, ▇▇▇▇▇▇ shall execute and deliver, and cause to be
executed and delivered a Guaranty Agreement from each such
Subsidiary, together with related documents of the kind
described in Article IV as Agent shall require, all in
form and substance satisfactory to the Agent and the
Required Lenders.
Section 9.11. ▇▇▇▇▇▇ Debt. On or before January 5, 1996,
assume the ▇▇▇▇▇▇ Debt on terms (a) with respect to
negative covenants and financial covenants, that
conform to the remaining Senior Debt, and (b) with
respect to the remaining terms of the ▇▇▇▇▇▇ Debt, that
remain as those terms exist as of the date of this
Agreement. ▇▇▇▇▇▇ shall be released from its obligation to
repay the ▇▇▇▇▇▇ Debt.
Section 9.12. Schedule VIII Subsidiaries. If any one of
the Subsidiaries listed on Part A of Schedule VIII
ever owns assets having a market value of greater than
$50,000, execute and deliver, and cause to be
executed and delivered a Guaranty Agreement from
each such Subsidiary, together with related
documents of the kind described in Article IV as Agent shall
require, all in form and substance satisfactory to the
Agent and the Required Lenders. ▇▇▇▇▇▇ shall review the
market value of the assets held by each of the
Subsidiaries listed on Part A of Schedule VIII
quarterly and shall promptly notify Agent in
writing if the market value of the assets owned by any Subsidiary
listed on Part A of Schedule VIII exceeds $50,000 and
provide Agent with the documentation required by this
Section 9.12. If any one of the Subsidiaries listed
on Part B of Schedule VIII ever owns assets having a
market value of greater than $250,000, execute and
deliver, and cause to be executed and delivered a
Guaranty Agreement from each such Subsidiary, together with
related documents of the kind described in Article IV
as Agent shall require, all in form and substance
satisfactory to the Agent and the Required Lenders.
▇▇▇▇▇▇ shall review the market value of the assets held by
each of the Subsidiaries listed on Part B of Schedule
VIII quarterly and shall promptly notify Agent in
writing if the market value of the assets owned by any
Subsidiary listed on Part B of Schedule VIII exceeds $250,000
and provide Agent with the documentation required by
this Section 9.12. ▇▇▇▇▇▇'▇ failure to comply with the
terms of this Section 9.12 shall constitute an Event of
Default under Section 12.03.
ARTICLE X.
SCHEDULE AMENDMENTS
In the event notice is provided by ▇▇▇▇▇▇ pursuant to the
terms of Article IX ("Notice of Change"), any
information contained in a Notice of Change shall
become a part of the Schedule relating to such
information only upon the written approval of the
Required Lenders as evidenced by an amendment to this
Agreement.
ARTICLE XI.
NEGATIVE COVENANTS
So long as any Revolving Loan Commitment remains in
effect hereunder or any Revolving Credit Note shall
remain unpaid, ▇▇▇▇▇▇ will not and will not permit any
Subsidiary to:
Section 11.01. Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, other than:
(a) Indebtedness evidenced by the Revolving Credit
Notes;
(b) Indebtedness outstanding on the date hereof or
pursuant to lines of credit in effect on the date
hereof, all as described on Schedule 11.01(b)
attached hereto (excluding Refinanced Indebtedness);
(c) purchase money Indebtedness acceptable to Agent and
Lenders not to exceed an aggregate amount of
$1,000,000 outstanding at any one time;
(d) unsecured current liabilities (other than
liabilities for borrowed money or liabilities
evidenced by promissory notes, bonds or similar
instruments) incurred in the ordinary course of
business and either (i) not more than sixty (60) days
past due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such disputed liability
maintained in conformity with GAAP;
(e) Subordinated Debt not to exceed $55,000,000;
(f) Indebtedness owed to Agent by ▇▇▇▇▇▇, which
Indebtedness is evidenced by an Amended and Restated
Revolving Credit Promissory Note in the principal
amount of $10,000,000 substantially in the form
attached hereto as Exhibit E (the "SunTrust Ten
Million Dollar Revolving Credit Facility");
(i) Senior Debt;
(j) ▇▇▇▇▇▇ Debt, subject to the terms of Section 9.11;
(k) Other Indebtedness not to exceed $1,000,000 at any
one time outstanding.
Section 11.02. Liens. Create, incur, assume or suffer to
exist any Lien on any of its property now owned or
hereafter acquired to secure any Indebtedness other
than:
(a) any Lien required under this Agreement;
(b) Liens existing on the date hereof disclosed on
Schedule 11.02 (excluding Liens securing
Refinanced Indebtedness);
(c) any Liens securing purchase money Indebtedness
described in Section 11.01(c);
(d) Liens for taxes not yet due (and in the case of
Liens on real property in Tennessee, not then
delinquent), and Liens for taxes that are being
contested in good faith by appropriate proceedings
and with respect to which adequate reserves are
being maintained;
(e) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens
imposed by law created in the ordinary course of
business for amounts not yet due or that are being
contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being
maintained;
(f) Liens incurred or deposits made in the ordinary
course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
and
(g) Liens (other than those permitted by
Section 11.02(a) through Section 11.02(f) encumbering
assets having an Asset Value not greater than
$1,000,000 in the aggregate at any one time.
Section 11.03. Mergers, Acquisitions, Sales, Etc. Merge
or consolidate with any other Person, or sell, lease or
otherwise dispose of its accounts, property or other
assets (including capital stock of Subsidiaries), or
purchase, lease or otherwise acquire all or any
substantial portion of the property or assets (including
capital stock) of any Person; provided, however, that
the foregoing restrictions on asset sales shall not be applicable
to (a) sales of equipment or other personal
property being replaced by other equipment or other
personal property purchased as a capital expenditure
item, (b) other sales of assets (including stock of
Subsidiaries) in an aggregate amount not to exceed ten
percent (10%) of Consolidated Net Worth computed as of
March 31, 1996 subject to Section 2.06, and (c) sales of
inventory in the ordinary course of business; provided
further, that the foregoing restrictions on mergers
shall not apply to mergers between Subsidiaries or
▇▇▇▇▇▇ provided that upon consummation of such
merger, ▇▇▇▇▇▇ is in compliance with Section 9.08
and is the surviving corporation of such merger;
provided, however, that no transaction pursuant to Section
11.03(a) or Section 11.03(b) or the second proviso
in this Section 11.03 shall be permitted if any
Default or Event of Default otherwise exists at the
time of such transaction or would otherwise exist as a
result of such transaction.
Section 11.04. Dividends, Etc. Declare or pay any
dividend on its capital stock, or make any payment to
purchase, redeem, retire or acquire any of its
Subordinated Debt or capital stock or any option,
warrant, or other right to acquire such Subordinated
Debt or capital stock, other than:
(a) dividends payable solely in shares of capital stock;
(b) cash dividends declared and paid, and all other such
payments made, after March 31, 1995 in an
aggregate amount at any time not to
exceed the sum of (i) $5,000,000, plus
(ii) fifty percent (50%) of
Consolidated Net Income (or minus one hundred
percent (100%) of Consolidated Net Loss) earned
during ▇▇▇▇▇▇'▇ 1995 fiscal year and thereafter
on a cumulative basis (such period to be
treated as one accounting period);
(c) redemption of Subordinated Debt upon the exercise of
conversion rights contained in the
Indenture; and
(d) payment of Subordinated Debt at maturity as set
forth in the Indenture,
provided, however, no such dividend or other payment may be
declared or paid pursuant to Section 11.04(b) unless (A)
the full amount of any mandatory prepayment required
by Article II has been made, and (B) no Default or
Event of Default exists at the time of such declaration or
payment, or would exist as a result of such declaration
or payment.
Section 11.05. Investments, Loans, Etc. Make, permit or
hold any Investments in any Person, or otherwise acquire
or hold any Subsidiaries, other than:
(a) Investments in (i) Subsidiaries that are Guarantors
under this Agreement, whether such Subsidiaries are
Guarantors on the Closing Date or become Guarantors in
accordance with Section 9.10 after the Closing Date and
(ii) Subsidiaries that are listed on Part B of Schedule
VIII; provided, however, nothing in this Section 11.05
shall be deemed to authorize an investment pursuant to
this Section 11.05(a) in any entity that is not (A) a
Subsidiary and a Guarantor or (B) a Subsidiary that is
listed on Part B of Schedule VIII prior to such
investment;
(b) direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United
States or any agency thereof, in each case supported by
the full faith and credit of the United States and
maturing within one year from the date of creation
thereof;
(c) commercial paper maturing within one year from the
date of creation thereof rated in the highest
grade by a nationally recognized credit rating agency;
(d) time deposits maturing within one (1) year from the
date of creation thereof with, including certificates of
deposit issued by, any office located in the United
States of any bank or trust company that is organized
under the laws of the United States or any state
thereof and has capital, surplus and undivided
profits aggregating at least $500,000,000, including
without limitation, any such deposits in eurodollars issued by a
foreign branch of any such bank or trust company;
(e) those loans or extensions of credit made by any
Consolidated Company to another Consolidated Company; and
(f) Investments (other than those permitted by
Section 11.05(a) through Section 11.05(e)) in an
aggregate amount not to exceed $10,000,000.
Section 11.06. Sale and Leaseback Transactions. Sell or
transfer any property, real or personal, whether now
owned or hereafter acquired, and thereafter rent or
lease such property or other property that any
Consolidated Company intends to use for substantially
the same purpose or purposes as the property being sold
or transferred.
Section 11.07. Transactions with Affiliates. Enter into
any material transaction or series of related
transactions with any Affiliate of any Consolidated Company
(but excluding any Affiliate that is also a
Consolidated Company), other than on terms and
conditions substantially as favorable to such
Consolidated Company as would be obtained by such Consolidated
Company at the time in a comparable arm's-length
transaction with a Person other than an Affiliate.
Section 11.08. Optional Prepayments. Directly or
indirectly, prepay, purchase, redeem, retire,
defease or otherwise acquire or make any optional
payment on account of any principal of, interest on, or
premium payable in connection with the optional
prepayment, redemption or retirement of, any of its
Indebtedness, or give a notice of redemption with respect to any
such Indebtedness, or make any payment in violation
of the subordination provisions of any Subordinated
Debt, except with respect to (a) the Obligations
under this Agreement and the Revolving Credit Notes,
(b) those loans or extensions of credit made by any
Consolidated Company to another Consolidated Company,
(c) the Indebtedness more particularly described in Section
11.01(f), and (d) redemption of Subordinated Debt
upon the exercise of conversion rights contained
in the Indenture; provided, however, that no
prepayment pursuant to this Section 11.08 shall be
permitted if any Default or Event of Default
otherwise exists at the time of such prepayment or would
otherwise exist as a result of such prepayment.
Section 11.09. Changes in Business. Enter into any
business that is substantially different from that
presently conducted by the Consolidated Companies taken
as a whole (which includes the publishing,
distribution and sale of bibles, music and other
books and periodicals, the manufacture, sale and
distribution of gift products, and the design and production of
multi-media programming, including television and
radio production and broadcasting), except where
the aggregate Investment made and other funds
expended or committed with respect to such business
does not exceed $2,500,000; provided, however, that
any Investment permitted by this Section 11.09 shall
be included in the calculation of Investments as set forth
in Section 11.05(f).
Section 11.10. ERISA. Take or fail to take any action
with respect to any Plan or any Consolidated Company
or, with respect to its ERISA Affiliates, any Plans
which are subject to Title IV of ERISA or to
continuation health care requirements for group health
plans under the Tax Code, including without
limitation (a) establishing any such Plan, (b) amending any such
Plan (except where required to comply with applicable
law), (c) terminating or withdrawing from any such
Plan, or (d) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of
ERISA, or any withdrawal liability under Title IV of
ERISA with respect to any such Plan, without first obtaining
the written approval of the Required Lenders, where such
actions or failures could reasonably be expected to have a
Materially Adverse Effect.
Section 11.11. Additional Negative Pledges. Create or
otherwise cause or suffer to exist or become effective,
directly or indirectly, any prohibition or restriction
on the creation or existence of any Lien upon any asset
of any Consolidated Company, other than pursuant to (a)
Section 11.02, (b) the terms of any agreement,
instrument or other document pursuant to which any
Indebtedness, permitted by Section 11.01(c) is incurred by any
Consolidated Company, so long as such prohibition or
restriction applies only to the property or asset
being financed by such Indebtedness and (c) any
requirement of applicable law or any regulatory
authority having jurisdiction over any of the
Consolidated Companies.
Section 11.12. Limitation on Payment Restrictions
Affecting Consolidated Companies. Create or otherwise
cause or suffer to exist or become effective any
consensual encumbrance or restriction on the ability of
any Consolidated Company to (a) pay dividends or make
any other distributions on such Consolidated Company's
stock, (b) pay any indebtedness owed to ▇▇▇▇▇▇ or any
other Consolidated Company, or (c) transfer any of its property
or assets to ▇▇▇▇▇▇ or any other Consolidated Company,
except any consensual encumbrance or restriction
existing under the Credit Documents.
Section 11.13. Actions Under Certain Documents. Without
the prior written consent of the Agent (which consent
shall not be unreasonably withheld), modify, amend,
cancel or rescind any agreements or documents
evidencing or governing Subordinated Debt, except
that current interest accrued thereon as of the date of
this Agreement and all interest subsequently accruing thereon
(whether or not paid currently) may be paid unless a
Default or Event of Default has occurred and is
continuing.
Section 11.14. Schedule VIII Subsidiaries.
Notwithstanding any other provision set forth in this
Agreement, as long as any Revolving Loan Commitment
remains in effect hereunder or any Revolving Credit
Note shall remain unpaid, permit any Subsidiary
listed on Schedule VIII to receive any proceeds of
the Revolving Loans, either directly or indirectly.
ARTICLE XII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of
the following specified events (each an "Event of
Default"):
Section 12.01. Payments. ▇▇▇▇▇▇ shall fail to make
promptly when due (including, without limitation, by
mandatory prepayment) any principal payment with respect to the
Revolving Loans, or ▇▇▇▇▇▇ shall fail to make within
three (3) days after the due date thereof any payment
of interest, fee or other amount payable hereunder;
Section 12.02. Covenants Without Notice. ▇▇▇▇▇▇ shall
fail to observe or perform any covenant or agreement
contained in Section 9.07(e), Section 9.08, Section
11.01 through Section 11.06, Section 11.08, Section
11.09 and Section 11.11 through Section 11.13;
Section 12.03. Other Covenants. ▇▇▇▇▇▇ shall fail to
observe or perform any covenant or agreement contained
in this Agreement, other than those referred to in
Section 12.01 and Section 12.02, and, if capable of
being remedied, such failure shall remain unremedied
for thirty (30) days after the earlier of (a) ▇▇▇▇▇▇'▇
obtaining knowledge thereof, or (b) written notice
thereof shall have been given to ▇▇▇▇▇▇ by Agent or any Lender;
Section 12.04. Representations. Any representation or
warranty made or deemed to be made by ▇▇▇▇▇▇ or any
other Credit Party or by any of its officers under this
Agreement or any other Credit Document (including the
Schedules attached thereto), or any certificate or
other document submitted to the Agent or the Lenders
by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any
material respect when made or deemed to be made or
submitted;
Section 12.05. Non-Payments of Other Indebtedness. Any
Consolidated Company shall fail to make when due
(whether at stated maturity, by acceleration, on
demand or otherwise, and after giving effect to any
applicable grace period) any payment of principal,
interest or any other amount owed on any
Indebtedness (other than the Obligations) exceeding $1,000,000 in
the aggregate;
Section 12.06. Defaults Under Other Agreements. Any
Consolidated Company shall fail to observe or perform
within any applicable grace period any covenants or
agreements contained in any agreements or instruments
relating to any of its Indebtedness (other than the
Obligations) exceeding $1,000,000 in the
aggregate, or any other event shall occur if the effect of such
failure or other event is to accelerate, or to permit
the holder of such Indebtedness or any other Person
to accelerate, the maturity of such Indebtedness, or
any such Indebtedness shall be required to be prepaid
(other than by a regularly scheduled required
prepayment) in whole or in part prior to its stated
maturity;
Section 12.07. Bankruptcy. ▇▇▇▇▇▇ or any other
Consolidated Company shall commence a voluntary case
concerning itself under the Bankruptcy Code; or an
involuntary case for bankruptcy is commenced against any
Consolidated Company and the petition is not
controverted within ten (10) days, or is not
dismissed within sixty (60) days, after commencement of the case;
or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or any
substantial part of the property of any Consolidated
Company; or any Consolidated Company commences
proceedings of its own bankruptcy or to be granted a
suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction, whether
now or hereafter in effect, relating to any
Consolidated Company or there is commenced against any
Consolidated Company any such proceeding that remains
undismissed for a period of sixty (60) days; or any
Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or any
Consolidated Company suffers any appointment of any custodian
or the like for it or any substantial part of its
property to continue undischarged or unstayed for a
period of sixty (60) days; or any Consolidated
Company makes a general assignment for the benefit of
creditors; or any Consolidated Company shall fail to
pay, or shall state that it is unable to pay, or shall be
unable to pay, its debts generally as they become due;
or any Consolidated Company shall call a meeting of its
creditors with a view to arranging a composition or
adjustment of its debts; or any Consolidated Company
shall by any act or failure to act indicate its
consent to, approval of or acquiescence in any of the
foregoing; or any corporate action is taken by any
Consolidated Company for the purpose of effecting any of
the foregoing;
Section 12.08. ERISA. A Plan of a Consolidated Company or
a Plan subject to Title IV of ERISA of any of
its ERISA Affiliates
(a) shall fail to be funded in accordance with the
minimum funding standard required by applicable
law, the terms of such Plan, Section 412 of the
Tax Code or Section 302 of ERISA for any plan
year or a waiver of such standard is sought or
granted with respect to such Plan under
applicable law, the terms of such Plan or Section 412 of the
Tax Code or Section 303 of ERISA; or
(b) is terminated, or is the subject of termination
proceedings under applicable law or the terms of
such Plan; or
(c) shall require a Consolidated Company to provide
security under applicable law, the terms of
such Plan, Section 412 of the Tax Code or Section
306 or 307 of ERISA;
and any such failure, waiver, termination or other event shall
result in a liability of a Consolidated Company to the
PBGC or a Plan that would have a Materially Adverse
Effect.
Section 12.09. Money Judgment. A judgment or order for the
payment of money in excess of $1,000,000 (for
which the Consolidated Company is not insured) or
otherwise having a Materially Adverse Effect shall
be rendered against any Consolidated Company and
such judgment or order shall continue unsatisfied (in
the case of a money judgment) and in effect for a period
of thirty (30) days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
Section 12.10. Change in Control of ▇▇▇▇▇▇. (a) Any "person"
or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act), other than ▇▇▇ ▇▇▇▇▇ or
his estate, heirs or beneficiaries, shall become the
"beneficial owner(s)" (as defined in said Rule 13d-3) of
more than twenty five percent (25%) of the shares of the
outstanding common stock of ▇▇▇▇▇▇ entitled to vote for
members of ▇▇▇▇▇▇'▇ board of directors, or (b) any event or
condition shall occur or exist that, pursuant to the terms of
any Change in Control Provision, requires or permits the
holder(s) of Indebtedness of any Consolidated Company
to require that such Indebtedness be redeemed,
repurchased, defeased, prepaid or repaid, in whole or
in part, or the maturity of such Indebtedness to be
accelerated in any respect;
Section 12.11. Default Under Other Credit Documents.
There shall exist or occur any "Event of Default" as
provided under the terms of any other Credit Document,
or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is
disaffirmed by or on behalf of ▇▇▇▇▇▇ or any other
Credit Party, or at any time it is or becomes unlawful for ▇▇▇▇▇▇
or any other Credit Party to perform or comply
with its obligations under any Credit Document, or
the obligations of ▇▇▇▇▇▇ or any other Credit Party
under any Credit Document are not or cease to be legal,
valid and binding on ▇▇▇▇▇▇ or any such Credit Party;
Section 12.12. Attachments. An attachment or similar
action shall be made on or taken against any of the
assets of any Consolidated Company with an Asset Value
exceeding $1,000,000 in aggregate and is not removed,
suspended or enjoined within thirty (30) days of the
same being made or any suspension or injunction being
lifted;
then, and in any such event, and at any time thereafter if any
Event of Default shall then be continuing, the Agent
may, and upon the written or telex request of the
Required Lenders, shall, by written notice to ▇▇▇▇▇▇,
take any or all of the following actions, without
prejudice to the rights of the Agent, any Lender or the holder of
any Revolving Credit Note to enforce its claims against
▇▇▇▇▇▇ or any other Credit Party: (a) declare the Total
Commitments terminated, whereupon the pro rata Total Commitments
of each Lender shall terminate immediately and any
commitment fee shall forthwith become due and payable
without any other notice of any kind; and (b) declare
the principal of and any accrued interest on the
Revolving Loans, and all other Obligations owing
hereunder, to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby
waived by ▇▇▇▇▇▇; provided, that, if an Event of
Default specified in Section 12.07 shall occur, the
result which would occur upon the giving of written
notice by the Agent to any Credit Party, as specified in clauses
(a) and (b) of this Section, shall occur automatically
without the giving of any such notice.
Section 12.13. Schedule VIII Subsidiaries. ▇▇▇▇▇▇ may
cure an Event of Default caused by a breach of Section 9.12
or Section 11.14 as provided in this Section 12.13.
▇▇▇▇▇▇ may execute and deliver, and cause to be
executed and delivered a Guaranty Agreement from each
Subsidiary causing a violation under Section 9.12 or
Section 11.14, as applicable, together with related
documents of the kind described in Article IV as Agent shall
require, all in form and substance satisfactory to the
Agent and the Required Lenders, whereupon such
Subsidiary causing such violation shall be deemed
removed from Schedule VIII.
Section 12.14. Adjustment to Pro Rata Share. Upon
the occurrence of any Event of Default, the Pro Rata
Share of each Lender shall be amended to the amount
designated opposite such Lender's name below in the
following chart in order to recognize the outstanding
indebtedness evidenced by (a) the SunTrust Ten Million
Dollar Revolving Credit Facility, (b) the SunTrust Letter
of Credit Facility, and (c) the National City Bank, Kentucky
(formerly known as First National Bank of Louisville)
Letter of Credit Facility:
SunTrust Bank, Nashville,
N. A. (formerly known
as Third National Bank
in Nashville): SunTrust Adjusted Pro Rata
Share as of the occurrence of
such Event of Default.
National City Bank, Kentucky
(formerly known as
First National Bank
of Louisville): National City Bank, Kentucky
(formerly known as
First National Bank of
Louisville) Adjusted Pro Rata
Share as of the occurrence of
such Event of Default.
First American National Bank: First American National Bank
Adjusted Pro Rata
Share as of the occurrence of
such Event of Default.
NationsBank of Texas, N.A.: NationsBank of Texas, N.A.
Adjusted Pro Rata
Share as of the
occurrence of such Event
of Default.
Creditanstalt - Bankverein: Creditanstalt - Bankverein
Adjusted Pro Rata
Share as of the
occurrence of such Event
of Default.
ARTICLE XIII.
THE AGENT
Section 13.01. Appointment of Agent. Each Lender hereby
designates SunTrust as Agent to administer all matters
concerning the Revolving Loans and to act as herein
specified. Each Lender hereby irrevocably authorizes,
and each holder of any Revolving Credit Note by the
acceptance of a Revolving Credit Note shall be deemed
irrevocably to authorize, the Agent to take such actions
on its behalf under the provisions of this Agreement, the
other Credit Documents and all other instruments
and agreements referred to herein or therein, and to
exercise such powers and to perform such duties
hereunder and thereunder as are specifically delegated
to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental
thereto. The Agent may perform any of its duties
hereunder by or through its agents or employees.
Section 13.02. Authorization of Agent with Respect to
the Security Documents. (a) Each Lender hereby
authorizes the Agent to enter into each of the
Security Documents, and to take all action contemplated
thereby. All rights and remedies under the Security
Documents may be exercised by the Agent for the
benefit of the Agent and the Lenders and the other beneficiaries
thereof upon the terms thereof. The Lenders further
agree that the Agent may assign its rights and
obligations under any of the Security Documents to any
Affiliate of the Agent or to any trustee, if
necessary or appropriate under applicable law, which
assignee in each such case shall (subject to compliance with any
requirements of applicable law governing the assignment
of such Security Documents) be entitled to all the
rights of the Agent under and with respect to the
applicable Security Document.
(b) In each circumstance where, under any provision of
any Security Document, the Agent shall have the right to
grant or withhold any consent, exercise any remedy, make
any determination or direct any action by the Agent
under such Security Document, the Agent shall act in
respect of such consent, exercise of remedies,
determination or action, as the case may be, with the
consent of and at the direction of the Required Lenders;
provided, however, that no such consent of the Required
Lenders shall be required with respect to any consent,
determination or other matter that is, in the
Agent's reasonable judgment, ministerial or
administrative in nature. In each circumstance where
any consent of or direction from the Required Lenders is
required, the Agent shall send to the Lenders a notice
setting forth a description in reasonable detail of
the matter as to which consent or direction is
requested and the Agent's proposed course of action
with respect thereto. In the event the Agent shall
not have received a response from any Lender within five
(5) Business Days after such Lender's receipt of such
notice, such Lender shall be deemed to have agreed
to the course of action proposed by the Agent.
Section 13.03. Nature of Duties of Agent. The Agent
shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other
Credit Documents. None of the Agent nor any of its
respective officers, directors, employees or agents
shall be liable for any action taken or omitted by
it as such hereunder or in connection herewith, unless
caused by its or their gross negligence or willful misconduct.
The duties of the Agent shall be ministerial and
administrative in nature; the Agent shall not have by
reason of this Agreement a fiduciary relationship in
respect of any Lender; and nothing in this Agreement,
express or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect
of this Agreement or the other Credit Documents
except as expressly set forth herein.
Section 13.04. Lack of Reliance on the Agent. (a)
Independently and without reliance upon the Agent, each
Lender, to the extent it deems appropriate, has made
and shall continue to make (i) its own independent
investigation of the financial condition and affairs
of the Credit Parties in connection with the taking
or not taking of any action in connection herewith,
and (ii) its own appraisal of the creditworthiness of the Credit
Parties, and, except as expressly provided in this
Agreement, the Agent shall have no duty or
responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its
possession before the making of the Revolving Loans or at
any time or times thereafter.
(b) The Agent shall not be responsible to any Lender for
any recitals, statements, information,
representations or warranties herein or in any
document, certificate or other writing delivered in
connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this
Agreement, the Revolving Credit Notes, the Guaranty
Agreement, the ▇▇▇▇▇▇ Pledge Agreement, the Word
Pledge Agreement or any other documents contemplated
hereby or thereby, or the financial condition of the
Credit Parties, or be required to make any inquiry concerning
either the performance or observance of any of the
terms, provisions or conditions of this Agreement, the
Revolving Credit Notes, the Guaranty Agreement, the
▇▇▇▇▇▇ Pledge Agreement, the Word Pledge Agreement or
the other documents contemplated hereby or thereby, or
the financial condition of the Credit Parties or the
existence or possible existence of any Default or Event of
Default; provided, however, to the extent that the Agent has
been advised that a Lender has not received any
information formally delivered to the Agent pursuant to
Section 9.07, the Agent shall deliver or cause to be
delivered such information to such Lender.
Section 13.05. Certain Rights of the Agent. If the Agent
shall request instructions from the Required Lenders with
respect to any action or actions (including the
failure to act) in connection with this Agreement, the
Agent shall be entitled to refrain from such act or
taking such act, unless and until the Agent shall have
received instructions from the Required Lenders; and the
Agent shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Lender shall
have any right of action whatsoever against the Agent as
a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of
the Required Lenders.
Section 13.06. Reliance by Agent. The Agent shall be
entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier
message, cable gram, radiogram, order or other
documentary, teletransmission or telephone message believed by it
to be genuine and correct and to have been signed, sent
or made by the proper Person. The Agent may consult with
legal counsel (including counsel for any Credit
Party), independent public accountants and other
experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel,
accountants or experts.
Section 13.07. Indemnification of Agent. To the extent
the Agent is not reimbursed and indemnified by
the Credit Parties, each Lender will reimburse and
indemnify the Agent, ratably according to the
respective amounts of the Revolving Loans outstanding
under all Revolving Loan Commitments (or if no amounts
are outstanding, ratably in accordance with the Total
Commitments), in either case, for and against any and all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of
any kind or nature whatsoever that may be imposed on,
incurred by or asserted against the Agent in performing
its duties hereunder, in any way relating to or
arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to the Agent
for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful
misconduct; provided further, that a Lender shall not be
liable to the Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements
resulting from the Agent's negligence, if such
Lender shall have given the Agent timely written
notice of the Lender's objections to the act or
omission constituting negligence on the Agent's part.
Section 13.08. The Agent in its Individual Capacity.
With respect to its obligation to lend under this
Agreement, the Revolving Loans made by it and the
Revolving Credit Notes issued to it, the Agent shall
have the same rights and powers hereunder as any other
Lender or holder of a Revolving Credit Note and may
exercise the same as though it were not performing the duties of
Agent specified herein; and the terms "Lenders,"
"Required Lenders," "holders of Revolving Credit
Notes," or any similar terms shall, unless the
context clearly otherwise indicates, include the
Agent in its individual capacity. The Agent may
accept deposits from, lend money to, and generally engage in any
kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any
Affiliate of the Consolidated Companies as if it
were not performing the duties specified herein as
Agent, and may accept fees and other consideration from
the Consolidated Companies for services in connection with this
Agreement and otherwise without having to account for the
same to the Lenders.
Section 13.09. Holders of Revolving Credit Notes. The
Agent may deem and treat the payee of any Revolving
Credit Note as the owner thereof for all purposes
hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed
with the Agent. Any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Revolving
Credit Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such
Revolving Credit Note or of any Revolving Credit Note
or Revolving Credit Notes issued in exchange
therefor.
Section 13.10. Successor Agent. (a) The Agent may resign
at any time by giving written notice thereof to the
Lenders and ▇▇▇▇▇▇ and may be removed at any time with
or without cause by the Required Lenders; provided,
however, the Agent may not resign or be removed until
a successor Agent has been appointed and shall have
accepted such appointment. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint
a successor Agent subject to ▇▇▇▇▇▇'▇ prior written
approval. If no successor 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 giving of notice of
resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent subject to
▇▇▇▇▇▇'▇ prior written approval, which shall be a bank
that maintains an office in the United States, or a
commercial bank organized under the laws of the United
States of America or any State thereof, or any
Affiliate of such bank, having a combined capital and surplus of
at least $100,000,000. If at any time SunTrust is
removed as a Lender pursuant to Section
14.06(g), SunTrust shall simultaneously resign as
Agent.
(b) Upon the acceptance of any appointment as the 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 under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions
of this Article XIII shall inure to its benefit as to
any actions taken or omitted to be taken by it while
it was an Agent under this Agreement.
ARTICLE XIV.
MISCELLANEOUS
Section 14.01. Notices. All notices, requests and other
communications to any party hereunder shall be in
writing (including bank wire, telex, telecopy or similar
teletransmission or writing) and shall be given to such party
at its address or applicable teletransmission number
set forth opposite such party's name on the signature
pages hereof, or such other address or applicable
teletransmission number as such party may hereafter
specify by notice to the Agent and ▇▇▇▇▇▇. Each such notice,
request or other communication shall be effective (a) if
given by telex, when such telex is transmitted to
the telex number specified in this Section 14.01 and
the appropriate answerback is received, (b) if given by
mail, seventy-two (72) hours after such communication is
deposited in the mails with first class postage
prepaid, addressed as aforesaid, (c) if given by telecopy, when
such telecopy is transmitted to the telecopy number
specified in this Section 14.01 and the appropriate
confirmation is received, or (d) if given by any
other means (including, without limitation, by air
courier), when delivered or received at the address
specified in this Section 14.01; provided that notices to
the Agent shall not be effective until received.
Section 14.02. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the other Credit
Documents, nor consent to any departure by any Credit
Party therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the
specific purpose for which given; provided that no amendment,
waiver or consent shall, unless in writing and signed by
all the Lenders do any of the following: (a) waive any
of the conditions specified in Section 4.01 or Section
4.02 or amend either such Section or, for the purposes
of such Sections, the definition of any term contained
in, or otherwise material to, either Section, (b)
increase any of the Total Commitments or other contractual
obligations to ▇▇▇▇▇▇ under this Agreement, (c) reduce
the principal of, or interest on, the Revolving Credit
Notes or any fees hereunder, (d) postpone any date
fixed for the payment in respect of principal of, or
interest on, the Revolving Credit Notes or any fees
hereunder, (e) change the percentage of any of the Total
Commitments or of the aggregate unpaid principal amount
of the Revolving Credit Notes, or the number or identity of
Lenders that shall be required for the Lenders or any of
them to take any action hereunder, (f) agree to
release (i) any of the outstanding common stock of
▇▇▇▇▇▇ (except pursuant to the terms of the ▇▇▇▇▇▇
Pledge Agreement) from the Lien of the Security
Documents to the extent securing the Obligations, (ii) any of the
outstanding common stock of Word, Incorporated (except
pursuant to the terms of the Word Pledge Agreement)
from the Lien of the Security Documents to the extent
securing the Obligations, or (iii) any Guarantor from
its obligations under any Guaranty Agreement, (g)
modify the definition of "Required Lenders," or (h)
modify this Section 14.02. Notwithstanding the foregoing, no
amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Lenders required
hereinabove to take such action, affect the rights or duties of
the Agent under this Agreement or under any other
Credit Document.
Section 14.03. No Waiver; Remedies Cumulative. No
failure or delay on the part of the Agent, any Lender
or any holder of a Revolving Credit Note in
exercising any right or remedy hereunder or under
any other Credit Document, and no course of dealing
between any Credit Party and the Agent, any Lender or
the holder of any Revolving Credit Note shall operate
as a waiver thereof, nor shall any single or partial exercise of
any right or remedy hereunder or under any other Credit
Document preclude any other or further exercise thereof
or the exercise of any other right or remedy hereunder
or thereunder. The rights and remedies herein
expressly provided are cumulative and not
exclusive of any rights or remedies that the Agent, any Lender or
the holder of any Revolving Credit Note would otherwise
have. No notice to or demand on any Credit Party not
required hereunder or under any other Credit Document
in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of
the Agent, the Lenders or the holder of any Revolving Credit Note
to any other or further action in any circumstances
without notice or demand.
Section 14.04. Payment of Expenses, Etc. ▇▇▇▇▇▇ shall:
(a) whether or not the transactions hereby contemplated
are consummated, pay all reasonable, out-of-pocket costs
and expenses of the Agent in the administration (both
before and after the execution hereof and including
reasonable expenses actually incurred relating to
advice of counsel as to the rights and duties of the
Agent and the Lenders with respect thereto) of, and in
connection with the preparation, execution and delivery of,
preservation of rights under, enforcement of, and,
after a Default or Event of Default, refinancing,
renegotiation or restructuring of, this Agreement and
the other Credit Documents and the documents and
instruments referred to therein, and any amendment,
waiver or consent relating thereto (including, without
limitation, the reasonable fees actually incurred and
disbursements of counsel for the Agent), and in the
case of enforcement of this Agreement or any Credit
Document after an Event of Default, all such
reasonable, out-of-pocket costs and expenses
(including, without limitation, the reasonable fees
actually incurred and disbursements of counsel), for any of the
Lenders; provided, however, that in no event shall
▇▇▇▇▇▇ be obligated to pay any attorneys' fees
and related expenses incurred by any Lender other
than Agent prior to the occurrence of an Event of
Default;
(b) subject, in the case of certain Taxes, to
the applicable provisions of Section 3.07(b), pay and
hold each of the Lenders harmless from and against any
and all present and future stamp, documentary, and other
similar Taxes with respect to this Agreement, the
Revolving Credit Notes and any other Credit
Documents, any collateral described therein, or any
payments due thereunder, and save each Lender harmless from and
against any and all liabilities with respect to or
resulting from any delay or omission to pay such Taxes;
and
(c) indemnify the Agent and each Lender, and
their respective officers, directors, employees,
representatives and agents from, and hold each of them
harmless against, any and all costs, losses,
liabilities, claims, damages or expenses incurred by any
of them (whether or not any of them is designated a party
thereto) (an "Indemnitee") arising out of or by reason of
any investigation, litigation or other proceeding
related to any actual or proposed use of the
proceeds of any of the Revolving Loans or any Credit
Party's entering into and performing of the Agreement,
the Revolving Credit Notes or the other Credit
Documents, including, without limitation, the reasonable fees
actually incurred and disbursements of counsel
incurred in connection with any such investigation,
litigation or other proceeding; provided, however,
▇▇▇▇▇▇ shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct;
(d) without limiting the indemnities set forth
in Section 14.04(c), indemnify each Indemnitee for any
and all expenses and costs (including without
limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs),
losses, claims (including claims for contribution
or indemnity and including the cost of investigating or
defending any claim and whether or not such claim is
ultimately defeated, and whether such claim arose before,
during or after any Credit Party's ownership,
operation, possession or control of its business,
property or facilities or before, on or after the date
hereof, and including also any amounts paid
incidental to any compromise or settlement by the Indemnitee or
Indemnitees to the holders of any such claim),
lawsuits, liabilities, obligations, actions,
judgments, suits, disbursements, encumbrances,
liens, damages (including without limitation damages
for contamination or destruction of natural
resources), penalties and fines of any kind or nature whatsoever
(including without limitation in all cases the
reasonable fees actually incurred, other charges and
disbursements of counsel in connection therewith)
incurred, suffered or sustained by that Indemnitee
based upon, arising under or relating to Environmental
Laws based on, arising out of or relating to in whole or in part,
the existence or exercise of any rights or remedies
by any Indemnitee under this Agreement, any other
Credit Document or any related documents.
If and to the extent that the obligations of ▇▇▇▇▇▇ under this
Section 14.04 are unenforceable for any reason,
▇▇▇▇▇▇ hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations that
is permissible under applicable law.
Section 14.05. Right of Setoff. In addition to and not
in limitation of all rights of offset that any Lender
or other holder of a Revolving Credit Note may have
under applicable law, each Lender or other holder of a
Revolving Credit Note shall, upon the occurrence of
any Event of Default and whether or not such Lender or
such holder has made any demand or any Credit
Party's obligations are matured, have the right to appropriate
and apply to the payment of any Credit Party's
obligations hereunder and under the other Credit
Documents owed to such Lender or other holder of a
Revolving Credit Note, all deposits of any Credit
Party (general or special, time or demand,
provisional or final) then or thereafter held by and other
Indebtedness or property then or thereafter owing by
such Lender or other holder to any Credit Party,
whether or not related to this Agreement or any
transaction hereunder. Each Lender shall promptly
notify ▇▇▇▇▇▇ of any offset hereunder.
Section 14.06. Benefit of Agreement. (a) This
Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective
successors and assigns of the parties hereto,
provided that ▇▇▇▇▇▇ may not assign or transfer any of
its interest hereunder without the prior written consent
of the Lenders.
(b) Any Lender may make, carry or transfer Revolving
Loans at, to or for the account of, any of its branch
offices or the office of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of
its interests, rights and obligations under this Agreement
(including all or a portion of any of its Total
Commitments and the Revolving Loans at the time owing
to it and the Revolving Credit Notes held by it) to any
Eligible Assignee; provided, however, that (i) the
Agent and ▇▇▇▇▇▇ must give their prior written
consent to such assignment (which consent shall not be
unreasonably withheld) unless such assignment is to an
Affiliate of the assigning Lender, (ii) the amount
of any of the Total Commitments of the assigning
Lender subject to each assignment (determined as of
the date the assignment and acceptance with respect
to such assignment is delivered to the Agent) shall not
be less than $5,000,000, and (iii) the parties to each such
assignment shall execute and deliver to the Agent an
Assignment and Acceptance, together with a
Revolving Credit Note or Revolving Credit Notes
subject to such assignment and, unless such assignment
is to an Affiliate of such Lender, a processing and
recordation fee of $2,500 payable to Agent by such Eligible
Assignee. ▇▇▇▇▇▇ shall not be responsible for such processing
and recordation fee or any costs or expenses incurred
by any Lender or the Agent in connection with such assignment.
From and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof, the
assignee thereunder shall be a party hereto and to the extent
of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this
Agreement. Notwithstanding the foregoing, the assigning Lender
must retain after the consummation of such Assignment and
Acceptance, a minimum aggregate amount of Total Commitments of
$10,000,000; provided, however, no such minimum amount shall
be required with respect to any such assignment made at any time
there exists an Event of Default hereunder. Within five (5)
Business Days after receipt of the notice and the
Assignment and Acceptance, ▇▇▇▇▇▇, at its own expense, shall
execute and deliver to the Agent, in exchange for the surrendered
Revolving Credit Note or Revolving Credit Notes, a new
Revolving Credit Note or Revolving Credit Notes to
the order of such assignee in a principal amount
equal to the applicable Total Commitments assumed by
it pursuant to such Assignment and Acceptance and
new Revolving Credit Note or Revolving Credit Notes
to the assigning Lender in the amount of its retained Total
Commitments. Such new Revolving Credit Note or Revolving
Credit Notes shall be dated the date of the surrendered
Revolving Credit Note or Revolving Credit Notes that
they replace, and shall otherwise be in
substantially the forms of the appropriate Revolving
Credit Notes described herein.
(d) Each Lender may, without the consent of ▇▇▇▇▇▇ or
the Agent, sell participations to one or more banks or
other entities in all or a portion of its post-
assignment rights and obligations under this Agreement
(including all or a portion of its Total Commitments
in the Revolving Loans owing to it and the Revolving
Credit Notes held by it), provided, however, that (i) no Lender
may sell a participation in its aggregate Total
Commitments (after giving effect to any permitted
assignment hereof) in an amount in excess of fifty
percent (50%) of such aggregate Total Commitments and
any such Lender must retain after consummation of the
sale of such participation a minimum aggregate amount of
Total Commitments of $10,000,000, provided, however, sales
of participations to an Affiliate of such Lender
shall not be included in such calculations;
provided, however, no such limitation shall be
applicable to any such participation sold at any time
there exists an Event of Default hereunder, (ii) such
Lender's obligations under this Agreement shall remain unchanged,
(iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such
obligations, (iv) the participating bank or other
entity shall not be entitled to the benefit (except
through its selling Lender) of the cost
protection provisions contained in Article III of this Agreement,
and (v) ▇▇▇▇▇▇ and the Agent and other Lenders shall
continue to deal solely and directly with each Lender in
connection with such Lender's rights and obligations
under this Agreement and the other Credit Documents, and such
Lender shall retain the sole right to enforce the
obligations of ▇▇▇▇▇▇ relating to the Revolving
Loans and to approve any amendment, modification or
waiver of any provisions of this Agreement. Any Lender selling a
participation hereunder shall provide prompt written
notice to ▇▇▇▇▇▇ of the name of such participant.
(e) Any Lender or participant may, in connection with
the assignment or participation or proposed
assignment or participation, pursuant to this Section
14.06(e), disclose to the assignee or participant or
proposed assignee or participant any information
relating to ▇▇▇▇▇▇ or the other Consolidated
Companies furnished to such Lender by or on behalf of ▇▇▇▇▇▇ or
any other Consolidated Company. With respect to any
disclosure of confidential, non-public, proprietary
information, such proposed assignee or participant
shall agree to use the information only for the
purpose of making any necessary credit judgments with
respect to the Revolving Loan Commitments and not to use the
information in any manner prohibited by any law,
including without limitation, the securities laws of the
United States. The proposed participant or assignee
shall agree not to disclose any of such information
except (i) to directors, employees, auditors or counsel
to whom it is necessary to show such information, each
of whom shall be informed of the confidential nature of the
information, (ii) in any statement or testimony
pursuant to a subpoena or order by any court,
governmental body or other agency asserting jurisdiction
over such entity, or as otherwise required by law
(provided prior notice is given to ▇▇▇▇▇▇ and the Agent
unless otherwise prohibited by the subpoena, order or law),
and (iii) upon the request or demand of any
regulatory agency or authority with proper
jurisdiction. The proposed participant or assignee
shall further agree to return all documents or other
written material and copies thereof received from any Lender, the
Agent or ▇▇▇▇▇▇ relating to such confidential
information unless otherwise properly disposed of by
such entity.
(f) Any Lender may at any time assign all or any portion
of its rights in this Agreement and the Revolving
Credit Notes issued to it to a Federal Reserve Bank;
provided that no such assignment shall release the
Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 3.07(b)
have been levied or imposed so as to require
withholdings or deductions by ▇▇▇▇▇▇ and payment by
▇▇▇▇▇▇ of additional amounts to any Lender as a
result thereof, (ii) any Lender shall make demand for
payment of any material additional amounts as
compensation for increased costs pursuant to Section 3.10 or for
its reduced rate of return pursuant to Section 3.16, or
(iii) any Lender shall decline to consent to a
modification or waiver of the terms of this
Agreement or the other Credit Documents requested
by ▇▇▇▇▇▇, then and in such event, upon request from ▇▇▇▇▇▇
delivered to such Lender and the Agent, such Lender shall
assign, in accordance with the provisions of Section 14.06(c),
all of its rights and obligations under this Agreement
and the other Credit Documents to another Lender or an
Eligible Assignee selected by ▇▇▇▇▇▇, in
consideration for the payment by such assignee to the
Lender of the principal of, and interest on, the
outstanding Revolving Loans accrued to the date of such
assignment, and the assumption of such Lender's Total
Commitment hereunder, together with any and all other
amounts owing to such Lender under any provisions of
this Agreement or the other Credit Documents accrued to
the date of such assignment.
Section 14.07. Governing Law; Submission to
Jurisdiction. (a) THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND UNDER THE
REVOLVING CREDIT NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF
TENNESSEE.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT, THE REVOLVING CREDIT NOTES OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE
CHANCERY COURTS FOR DAVIDSON COUNTY, TENNESSEE OR
IN THE FEDERAL COURTS FOR THE MIDDLE DISTRICT OF
TENNESSEE, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, ▇▇▇▇▇▇ HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND
▇▇▇▇▇▇ HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) ▇▇▇▇▇▇ IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO ▇▇▇▇▇▇ AT ITS SAID ADDRESS, SUCH SERVICE
TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH
MAILING.
(d) Nothing herein shall affect the right of the Agent,
any Lender, any holder of a Revolving Credit Note or any
Credit Party to serve process in any other manner
permitted by law or to commence legal proceedings or
otherwise proceed against ▇▇▇▇▇▇ in any other
jurisdiction.
Section 14.08. Independent Nature of Lenders, Rights.
The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each
Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Revolving
Credit Notes, and it shall not be necessary for any other Lender
to be joined as an additional party in any
proceeding for such purpose.
Section 14.09. Counterparts. This Agreement may be
executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of
which when so executed and delivered shall be an
original, but all of which shall together constitute
one and the same instrument.
Section 14.10. Effectiveness; Survival. (a) This
Agreement shall become effective on the date on which all
of the parties hereto shall have executed a copy
hereof (whether the same or different copies) and
shall have delivered the same to the Agent pursuant to
Section 14.01 or, in the case of the Lenders, shall
have given to the Agent written or telex notice (actually
received) that the same has been executed and mailed to
them.
(b) The obligations of ▇▇▇▇▇▇ under Section
3.07(b), Section 3.10, Section 3.12, Section 3.16 and
Section 14.04 shall survive the payment in full of the
Revolving Credit Notes after the Final Maturity Date.
All representations and warranties made herein, in the
certificates, reports, notices and other documents
delivered pursuant to this Agreement shall survive the execution
and delivery of this Agreement, the other Credit
Documents, and such other agreements and documents, the
making of the Revolving Loans hereunder, and the
execution and delivery of the Revolving Credit Notes.
Section 14.11. Severability. In case any provision in
or obligation under this Agreement or the other Credit
Documents shall be invalid, illegal or unenforceable,
in whole or in part, in any jurisdiction, the validity,
legality and enforceability of the remaining provisions
or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 14.12. Independence of Covenants. All
covenants hereunder shall be given independent effect
so that if a particular action or condition is not
permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise
within the limitation of, another covenant, shall not
avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
Section 14.13. Change in Accounting Principles, Fiscal
Year or Tax Laws. If (a) any preparation of the financial
statements referred to in Section 9.07 hereafter
occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the
Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) (other than changes
mandated by FASB-106) result in a material change in
the method of calculation of financial covenants, standards or
terms found in this Agreement, (b) there is any change
in ▇▇▇▇▇▇'▇ fiscal quarter or fiscal year, or (c)
there is a material change in federal tax laws that
materially affects any of the Consolidated Companies'
ability to comply with the financial covenants,
standards or terms found in this Agreement, ▇▇▇▇▇▇ and the
Required Lenders agree to enter into negotiations in
order to amend such provisions so as to equitably
reflect such changes with the desired result that the
criteria for evaluating any of the Consolidated
Companies' financial condition shall be the same after
such changes as if such changes had not been made. Unless
and until such provisions have been so amended, the provisions
of this Agreement shall govern.
Section 14.14. Headings Descriptive; Entire Agreement.
The headings of the several Sections and subsections
of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or
construction of any provision of this Agreement. This
Agreement, the other Credit Documents, and the
agreements and documents required to be delivered pursuant to the
terms of this Agreement constitute the entire agreement
among the parties hereto and thereto regarding the
subject matters hereof and thereof and supersede all
prior agreements, representations and understandings
related to such subject matters.
Section 14.15. Interest. The parties to this
Agreement intend to conform strictly to applicable usury
laws as presently in effect. Accordingly, if the
transactions contemplated hereby would be usurious under
applicable law (including the laws of the United States
of America and the State of Tennessee), then, in that
event, notwithstanding anything to the contrary in any
Credit Document or agreement executed in connection with or
as security for any of the Revolving Credit Notes,
▇▇▇▇▇▇ and Lenders agree as follows: (a) the aggregate
of all consideration that constitutes interest under
applicable law which is contracted for, charged or
received under any of the Revolving Credit Notes, this
Agreement or any of the other Credit Documents or
agreements, or otherwise in connection with the Revolving
Credit Notes, shall under no circumstances exceed the
maximum lawful rate of interest permitted by
applicable law, and any excess shall be credited on the
applicable Revolving Credit Notes by the holder thereof
(or, if the Revolving Credit Notes shall have been
paid in full, refunded to ▇▇▇▇▇▇); and (b) in the event
that the maturity of any of the Revolving Credit Notes is
accelerated by reason of an election of the holder
resulting from any Event of Default under this Agreement
or otherwise, or in the event of any required or
permitted prepayment, then such consideration that
constitutes interest may never include more than the
maximum amount of interest permitted by applicable law,
and excess interest, if any, for which this Agreement provides,
or otherwise, shall be cancelled automatically as of the
date of such acceleration or prepayment and, if
previously paid, shall be credited on the applicable Revolving
Credit Notes (or, if the Revolving Credit Notes shall
have been paid in full, refunded to ▇▇▇▇▇▇).
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered in
Nashville, Tennessee, by their duly authorized
officers as of the day and year first above written.
Address for Notices: ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice Title: Executive Vice President
President and Chief
Financial Officer
Address for Notices: SUNTRUST BANK, NASHVILLE, N. A.
(formerly known as Third National
Bank in Nashville), As Agent
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Payment Office:
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Address for Notices: SUNTRUST BANK, NASHVILLE, N. A.
(formerly known as Third National
Bank in Nashville)
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Payment Office:
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
REVOLVING LOAN COMMITMENT: $45,500,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 26%
Address for Notices: NATIONAL CITY BANK, KENTUCKY
(formerly known as First National
Bank of Louisville)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Assistant Vice President
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Payment Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
REVOLVING LOAN COMMITMENT: $29,750,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 17%
Address for Notices: FIRST AMERICAN NATIONAL BANK
National Division
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Vice President Title: Senior Vice President
Telex No.: ▇▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Payment Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Fernisa Joy
Commercial Loan Operations
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
REVOLVING LOAN COMMITMENT: $35,000,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 20%
Address for Notices: NATIONSBANK OF TEXAS, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
or Title: Vice President
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telex No.: 6829317
Answerback: NationsBK DAL
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Payment Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
REVOLVING LOAN COMMITMENT: $35,000,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 20%
Address for Notices: CREDITANSTALT - BANKVEREIN
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: 212/856-1234 Title: Senior Vice President
With a copy to: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Two Ravinia Drive Title: Vice President
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy No.: 404/390-1851
Payment Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: 212/▇▇▇-▇▇▇▇
Telecopy No.: 212/856-1234
REVOLVING LOAN COMMITMENT: $29,750,000
PRO RATA SHARE OF REVOLVING
LOAN COMMITMENTS: 17%
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Amended and Restated Credit
Agreement dated as of December 13, 1995 (as may be
amended, modified or supplemented to the date
hereof, the "Credit Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇,
INC. as borrower ("▇▇▇▇▇▇"), the lenders listed on the
signature pages thereof (collectively, the "Lenders"),
and SUNTRUST BANK, NASHVILLE, N. A. (formerly known
as Third National Bank in Nashville) as Agent. Terms
defined in the Credit Agreement are used herein with the
same meanings.
1. Assignor (as identified below) hereby sells and
assigns to Assignee (as identified below), without
recourse against Assignor, and Assignee hereby
purchases and assumes from Assignor, without
recourse against Assignor, effective as of the
Effective Date (as identified below) the interests set forth
below (collectively, the "Assigned Interest"), in
Assignor's rights and obligations under the Credit
Agreement, including without limitation, the below
specified Revolving Loan Commitment of Assignor on the
Effective Date, and the below specified Revolving
Loans owing to Assignor that are outstanding on the
Effective Date, together with unpaid interest accrued on the
assigned Revolving Loans to the Effective Date, and
the amount (if any) set forth below of the fees
referred to in Section 3.05(b) of the Credit Agreement
accrued to the Effective Date for the account of
Assignor. From and after the Effective Date, (a)
Assignee shall be a party to and be bound by the provisions of
the Credit Agreement, and to the extent of the Assigned
Interest, have the rights and obligations of a Lender
thereunder and under the Credit Documents (except for
any such obligations that are due and payable on, or
that become due and payable before, the Effective
Date), and (b) Assignor shall, to the extent of the
Assigned Interest and otherwise to the extent set forth in the
foregoing clause (a), relinquish its rights and be
released from its obligations under the Credit
Agreement and the Credit Documents.
2. Each of the Assignor and the Assignee
represents, warrants and agrees to and with the other
and the Agent as follows: (a) Assignor warrants
that it is the legal and beneficial owner of the
Assigned Interest free and clear of any adverse claim
and that its Revolving Loan Commitment and the
outstanding balances of its Revolving Loans under the Revolving
Loan Commitment, in each case, without giving
effect to assignments thereof which have not become
effective, are as set forth below, (b) except as set
forth in (a), Assignor makes no representation or
warranty and assumes no responsibility with respect
to any statements, warranties or representations made in
or in connection with the Credit Agreement, or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other Credit
Document or any instrument or documents furnished
pursuant thereto, or the financial condition of
▇▇▇▇▇▇ or any other Credit Party or the performance
or observance by any Credit Party of any of its
obligations under the Credit Documents; (c) the Assignee
represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (d)
Assignee confirms that it has received a copy of the
Credit Agreement, such financial statements and other
documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (e) Assignee agrees that it
will perform its obligations as a Lender under the
Credit Documents as required by the terms thereof;
and (f) Assignee appoints and authorizes the Agent to
take such actions as agent on its behalf and to
exercise such powers under the Credit Agreement and
the other Credit Documents as are delegated to the Agent
by the terms of the Credit Agreement and the other Credit
Documents, together with such powers as are reasonably
incidental thereto.
3. This Assignment and Acceptance is being delivered to
the Agent, together with (a) the Revolving Credit
Notes evidencing the Revolving Loans included in the
Assigned Interest, and (b) a copy of this Assignment
and Acceptance after it is duly executed by each of the
Assignee and the Assignor.
4. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State
of Tennessee, without regard to the conflict of laws
principles thereof.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address (Including Telex and Telecopy Numbers) for
Notices:
Assignee's Lending Office:
Effective Date of Assignment (may not be fewer than five (5)
Business Days after the date of the Assignment and
Acceptance):
Percentage of
Principal Amount Facility
Facility Assigned Assigned -
------- ---------------- -------------
Revolving
Loan Facility $ %
Immediately after giving effect to this Assignment and
Acceptance:
(a) The aggregate amount of the Revolving Loan
Commitment of Assignor is .
The terms set forth herein are
hereby agreed to by
, as Assignor.
By:
Name:
Title:
As Assignor
The terms set forth herein are
hereby agreed to by
, as Assignee.
By:
Name:
Title:
As Assignee
CONSENTED TO:
SUNTRUST BANK, NASHVILLE, N. A.
(formerly known as Third
National Bank in Nashville),
as Agent
By:
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:
Name:
Title:
EXHIBIT B
FORM OF ESCROW LETTER
[Date]
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
---------------------------
---------------------------
Attention:
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated
Credit Agreement dated as of December 13, 1995 (as it
may be amended and/or restated from time to
time, the "Credit Agreement") by and among ▇▇▇▇▇▇
▇▇▇▇▇▇, Inc. ("▇▇▇▇▇▇"), SunTrust Bank, Nashville, N.
A. (formerly known as Third National Bank in Nashville)
as Agent (the "Escrow Agent"), and each of the
financial institutions listed on the signature pages thereto,
together with their successors and assigns
(collectively, the "Lenders"). All capitalized terms
used herein without definition shall have the meanings
assigned to those terms in the Credit Agreement.
By signing in the space provided below, each of ▇▇▇▇▇▇ and
the Escrow Agent agree as follows:
1. ▇▇▇▇▇▇ hereby establishes with Escrow Agent an account
(Account No. _________) (the "Escrow Account") at its
office in _____________________ and hereby transfers
to the Escrow Agent the sole and exclusive dominion
over and control of the Escrow Account and all property
from time to time deposited therein.
2. The Escrow Agent hereby acknowledges receipt from
▇▇▇▇▇▇ of $________________ (the "Delivered
Funds") in immediately available funds in the Escrow
Account, which delivery is made pursuant to the
requirements of the Credit Agreement.
3. The Delivered Funds shall be deemed to be mandatory
prepayments under the Credit Agreement for purposes of
ownership and to have been relinquished forever by
▇▇▇▇▇▇. The Escrow Agent shall hold the Delivered Funds
for the account of Lenders pending release pursuant to
Paragraph 4 and the Delivered Funds shall be subject to
a lien in favor of the Escrow Agent for the benefit of
the Lenders. The Escrow Agent shall invest the Delivered Funds;
provided, however, the Escrow Agent may invest the
Delivered Funds only in investments described in
Section 11.05(b), Section 11.05(c) and Section 11.05(d)
of the Credit Agreement or other deposits with any
Lender ("Permitted Investments"). All earnings on the Delivered
Funds (the "Investment Earnings") shall be for the
account of ▇▇▇▇▇▇. The Escrow Agent shall not be liable to
▇▇▇▇▇▇ for any loss suffered in connection with any
investment of funds made by it in accordance with this
letter agreement.
4. On the earliest date following the date hereof on which
an Interest Period with respect to a LIBOR Advance
pursuant to the relevant Revolving Loan Commitment
ends, the Escrow Agent shall release the Delivered
Funds or relevant portion thereof to the Escrow Agent
or the Lender, as appropriate, for application to the
prepayment of the relevant Revolving Loan Commitment in
accordance with the terms thereof. If after such application the
full amount of the required prepayment has not been
made, the Escrow Agent shall hold the remaining
Delivered Funds until the next occurring ending
date(s) for Interest Period(s) on LIBOR Advances under
the relevant Revolving Loan Commitment, on which
date(s) the Escrow Agent shall similarly release such remaining
Delivered Funds for application as aforesaid. Such
application by the Escrow Agent shall continue until
the full amount of the required prepayment has been
made, at which time all remaining Investment Earnings
shall be distributed to ▇▇▇▇▇▇ for application
as ▇▇▇▇▇▇ may determine.
5. ▇▇▇▇▇▇ agrees to indemnify the Escrow Agent, and its
officers, directors, employees and agents, in connection
with any actions taken or omitted to be taken by it
in its capacity as Escrow Agent under this letter
agreement, to the same extent that each Lender is
indemnified pursuant to Section 14.04 of the Credit
Agreement. The provisions of this Paragraph 5 shall
survive the termination of this letter agreement.
6. In order to induce the Escrow Agent to act hereunder,
▇▇▇▇▇▇ agrees that:
(a) The duties and obligations of the Escrow Agent are
those herein specifically provided and no other.
The Escrow Agent shall not have any liability under,
nor duty to inquire into, the terms and
provisions of any agreement or instrument,
other than this letter agreement and the Credit
Agreement. Escrow Agent's duties are ministerial in nature
and the Escrow Agent shall not incur any liability
whatsoever other than for its own willful
misconduct or gross negligence.
(b) The Escrow Agent shall not incur any liability for
following the instructions herein contained or
expressly provided for in written instructions
given by all of the parties hereto.
(c) The Escrow Agent shall not have any responsibility
for the genuineness or validity of any document
or other material presented to or deposited with
Escrow Agent nor any liability for any action taken,
suffered or omitted in accordance with any
written instructions or certificates given to
Escrow Agent hereunder and believed by Escrow Agent
to be signed by the proper party or parties.
(d) The Escrow Agent may consult with counsel of its
choice, including in-house counsel, and shall not
be liable for any action taken, suffered or omitted
by Escrow Agent in accordance with the advice of
such counsel; provided, however, that the Escrow
Agent shall be liable for its own gross negligence
or wilful misconduct.
(e) If the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive
instructions, claims or demands from any party
hereto which, in its opinion, conflict with any
of the provisions of this letter agreement, Escrow
Agent shall be entitled to refrain from taking
any action and its sole obligation shall be to keep
all property held in escrow until Escrow Agent shall be
directed otherwise in writing by all of the other
parties hereto and the Required Lenders or by a
final order or judgment of a court of competent
jurisdiction.
(f) The Escrow Agent shall not be required to institute
legal proceedings of any kind and shall not be
required to initiate or defend any legal
proceedings that may be instituted against it in
respect of the subject matter of this letter
agreement. If the Escrow Agent does elect to act,
Escrow Agent will do so only to the extent that Escrow Agent
is indemnified to its satisfaction against the cost
and expense of such defense or initiation.
(g) The Escrow Agent shall not be bound by any
modification, amendment, termination,
cancellation, rescission or supersession of this
letter agreement unless the same shall be in
writing and signed by all of the other parties
hereto and the Required Lenders and, if Escrow
Agent's rights, duties, immunities or indemnities as Escrow
Agent are affected thereby, unless Escrow Agent shall
have given its prior written consent thereto.
(h) This letter agreement sets forth exclusively the
duties of the Escrow Agent with respect to any
and all matters pertinent hereto and no implied
duties or obligations shall be read into this
letter agreement against the Escrow Agent.
7. The Escrow Agent shall have all rights and remedies
with respect to the Delivered Funds of a secured
party under applicable law.
8. THIS LETTER AGREEMENT SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF TENNESSEE.
9. This letter agreement may be executed and accepted
in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be
deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same
agreement.
Very truly yours,
ESCROW AGENT
SUNTRUST BANK, NASHVILLE, N.A.
(formerly known as Third National
Bank in Nashville)
By:_____________________________
Name:___________________________
Title:__________________________
AGREED TO THIS ____ DAY
OF __________________, 19__:
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:_____________________________
Name:___________________________
Title:__________________________
Exhibit C
Document evidencing the
name change from International Cassette Corp.
to TNI Cassette Corp.
Exhibit D
Document evidencing the name change
From Word (UK) Limited to ▇▇▇▇▇▇ Word Limited
See Exhibit A to the Secretary's Certificate for ▇▇▇▇▇▇ Word
Limited required by Section 4.01 of the Amended and
Restated Credit Agreement to which this Exhibit D is
attached.
EXHIBIT E
Evidence of
SunTrust Ten Million Dollar Revolving Credit Facility
AMENDED AND RESTATED
REVOLVING CREDIT
PROMISSORY NOTE
Nashville, Tennessee $10,000,000.00
November 30, 1992
Amended November 30, 1993
Amended May 17, 1994
Amended May 24, 1995
Amended and restated
December 13, 1995 to
be effective as of
July 25, 1995
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a Tennessee corporation (the
"Borrower"), executed a certain Revolving Credit
Promissory Note in the original principal amount of up
to $5,000,000.00 dated November 30, 1992 and payable
to the order of SunTrust Bank, Nashville, N. A.
(formerly known as Third National Bank in
Nashville) ("Lender"), as amended by First Amendment to Revolving
Credit Promissory Note dated November 30, 1993, as
further amended by Second Amendment to Revolving
Credit Promissory Note dated May 17, 1994, and as
further amended by Third Amendment to Revolving Credit
Promissory Note dated May 24, 1995 (as amended to
date, the "Original Note");
WHEREAS, Borrower has requested that Lender modify the
Original Note to increase the amount available under the
Original Note from $5,000,000.00 to up to
$10,000,000.00, and Lender is willing to modify the
Original Note upon the terms contained herein.
The parties therefore wish to amend and restate the Original
Note in its entirety as follows:
NOW, THEREFORE, FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC., a
Tennessee corporation (the "Borrower"), promises and
agrees to pay to the order of SUNTRUST BANK,
NASHVILLE, N. A. (formerly known as Third National
Bank in Nashville) (the "Lender") at its offices in
Nashville, Tennessee, or at such other place as may be
designated in writing by the holder, in lawful money of the
United States of America, the principal sum of up to Ten
Million and No/100 Dollars ($10,000,000.00), together
with interest on the unpaid principal balance
outstanding from time to time hereon computed from the
date hereof until the Maturity Date (as hereinafter
defined), at a varying rate of interest that is equal to
the base rate of interest from time to time charged by Lender.
Interest for each year shall be computed based upon a 360-day
year. The "base rate of interest" is defined as that
rate of interest established from time to time and
announced by Lender as its "base rate," such rate
being an interest rate used as an index for
establishing interest rates on loans. The rate of
interest provided herein shall be determined daily to reflect
changes in the base rate of interest charged by Lender
as such base rate of interest may change from time
to time. Interest shall be paid to the Lender on the
first (1st) day of each month for the preceding month
(or portion thereof) following the date of execution
until the Maturity Date. This Note shall mature July 30,
1997 (the "Maturity Date"), at which time all outstanding
principal, accrued interest and other amounts owed
hereunder shall be due and payable in full to
Lender in immediately available funds. This Note
may be renewed for a subsequent period of one (1)
year at Lender's sole option.
Provided Borrower is not in default under the terms of this
Note, the Letter Agreement (as hereinafter defined) or
the Credit Agreement (as hereinafter defined), prior to
the Maturity Date, Borrower may borrow, repay, reborrow
and repay hereunder up to the principal amount of this
Note.
Notwithstanding any provision to the contrary, it is the
intent of the Lender, the Borrower, and all parties
liable on this Note, that neither the Lender nor
any subsequent holder shall be entitled to receive,
collect, reserve or apply, as interest, any amount
in excess of the maximum lawful rate of interest
permitted to be charged by applicable law or
regulations, as amended or enacted from time to time. In the
event the Note calls for an interest payment that
exceeds the maximum lawful rate of interest then
applicable, such interest shall not be received,
collected, charged, or reserved until such time as that
interest, together with all other interest then
payable, falls within the then applicable maximum lawful rate of
interest. In the event the Lender, or any subsequent
holder, receives any such interest in excess of the
then maximum lawful rate of interest, such amount
which would be excessive interest shall be deemed a
partial prepayment of principal and treated hereunder
as such, or, if the principal indebtedness evidenced
hereby is paid in full, any remaining excess funds shall
immediately be paid to the Borrower. In determining
whether or not the interest paid or payable, under any
specific contingency, exceeds the maximum lawful rate of
interest, the Borrower and the Lender shall, to the
maximum extent permitted under applicable law, (a)
exclude voluntary prepayments and the effects thereof,
and (b) amortize, prorate, allocate, and spread, in equal parts,
the total amount of interest throughout the entire
term of the indebtedness; provided that if the
indebtedness is paid in full prior to the end of the
full contemplated term hereof, and if the interest
received for the actual period of existence hereof
exceeds the maximum lawful rate of interest, the holder of the
Note shall refund to the Borrower the amount of such excess or
credit the amount of such excess against the principal
portion of the indebtedness as of the date it was
received, and, in such event, the Lender shall not be
subject to any penalties provided by any laws for
contracting for, charging, reserving, collecting or
receiving interest in excess of the maximum lawful rate of
interest.
Privilege is reserved to pay all or part of the indebtedness
at any time before the Maturity Date without penalty.
Any such payment shall be applied first to accrued
interest and secondly to principal.
Principal and unpaid interest bear interest following any
default in payment of principal and interest as herein
provided at the maximum lawful rate of interest
permitted by law until paid. In case of suit, or if
this obligation is placed in an attorney's hands for
collection, or to protect the security for its
payment, the undersigned will pay all costs of collection and
litigation, including a reasonable attorney's fee.
In the event that (a) there occurs any breach of any promise
made in this Note, in the Letter Agreement by and
between Borrower and Lender of even date herewith (as
it may be amended and/or restated from time to time,
the "Letter Agreement"), in the Amended and Restated
Credit Agreement by and among Borrower, the lenders
listed therein and Lender, as Agent, of even date
herewith (as it may be amended and/or restated from time to time,
the "Credit Agreement"), or in any other document
relating to, securing, or otherwise executed in
connection with the Note; or (b) any party liable
hereon shall (i) petition any court for an order of
relief under any Chapter of the Federal Bankruptcy Code
or (ii) be generally unable to pay its debts as they become due,
(iii) file, or consent to the filing against it of, a
petition for relief or reorganization or arrangement
or any petition in bankruptcy for liquidation or to
take advantage of any bankruptcy or insolvency law of
any jurisdiction, (iv) make an assignment for the
benefit of its creditors, (v) consent to the appointment
of a custodian, receiver, trustee, or other officer with similar
powers of any substantial part of its property, or (vi)
initiate any action for the purpose of the foregoing;
or (c) a court or governmental authority of competent
jurisdiction shall enter an order, without the consent
of any party liable hereon, appointing a custodian,
receiver, trustee, or other officer with similar
powers with respect to such party or with respect to any
substantial part of its property, or constituting an
Order for Relief or approving a petition for relief
or reorganization or any other petition in bankruptcy
or for liquidation or to take advantage of any
bankruptcy or insolvency law of any
jurisdiction; or (d) the dissolution, winding-up or liquidation
of any partnership or corporation liable hereon; or (e)
any party liable hereon becomes insolvent (each, an
"Event of Default"); then, in any of such Events of Default,
at the option of the holder, the entire indebtedness
hereby evidenced shall become due, payable and
collectible then or thereafter, without notice, as the
holder may elect regardless of the Maturity Date. The
holder may waive any Event of Default before or after the same
has been declared and restore this Note to full force
and effect without impairing any rights hereunder,
such right of waiver being a continuing one.
The makers, endorsers, guarantors and all parties to his
Note and all who may become liable for same,
ointly and severally waive presentment for
payment, protest, notice of protest, notice of
nonpayment of this Note, demand and all legal diligence
in enforcing collection, and hereby expressly agree
that the lawful owner or holder of this Note may defer or
postpone collection of the whole or any part
thereof, either principal and/or interest, or may
extend or renew the whole or any part thereof, either
principal and/or interest, or may accept additional
collateral or security for the payment of this Note,
or may release the whole or any part of any collateral security
and/or liens given to secure the payment of this Note,
or may release from liability on account of this Note
any one or more of the makers, endorsers, guarantors
and/or other parties thereto, all without notice to
them or any of them; and such deferment, postponement,
renewal, extension, acceptance of additional
collateral or security and/or release shall not in any way affect
or change the obligation of any such maker, endorser,
guarantor or other party to this Note, or of any who
may become liable for the payment thereof.
The Borrower shall pay a "late charge" of five percent (5%)
of any payments of principal and/or interest due when
paid after the due date thereof (provided that in no
event shall said "late charge" result in the payment
of interest in excess of the maximum lawful rate of
interest permitted by applicable law), to cover the
extra expenses involved in handling delinquent
payments.
The term "maximum lawful rate of interest" as used herein
shall mean a rate of interest equal to the higher or
greater of the following: (a) the "applicable
formula rate" defined in Tennessee Code Annotated
Section 47-14-102(2), or (b) such other rate of
interest as may be charged under other applicable laws or
regulations.
This Note is an unsecured Note.
This Note amends and restates that certain Revolving Credit
Promissory Note in the original principal amount of
up to $5,000,000.00 executed November 30, 1992 by
Borrower and payable to Lender, as amended by First
Amendment to Revolving Credit Promissory Note dated
November 30, 1993, as further amended by Second Amendment to
Revolving Credit Promissory Note dated May 17, 1994,
and as further amended by Third Amendment to Revolving
Credit Promissory Note dated May 24, 1995, and does not
constitute a novation of such original note or the
indebtedness evidenced thereby.
This Note has been executed and delivered in, and shall be
governed by and construed according to the laws of the
State of Tennessee except to the extent pre-empted by
applicable laws of the United States of America.
This Note may not be changed or terminated without the prior
written approval of the Lender and the Borrower. No
waiver of any term or provision hereof shall be valid
unless in writing signed by the holder.
Executed as of the 13th day of December, 1995 to be effective
as of July 25, 1995.
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:
Title:
Agreed to by:
SunTrust Bank, Nashville, N.A.
(formerly known as Third National
Bank in Nashville)
By:
Title:
SCHEDULE 4.01(h)
UCC Search Locations
1. Nashville, Davidson County, Tennessee
2. Atlanta, ▇▇▇▇▇▇ County, Georgia
3. Miami, Dade County, Florida
4. Camden, Camden County, New Jersey
5. Winona Lake, Kosciasko County, Indiana
6. Waco, McLennan County, Texas
7. Dallas, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
9. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇.
10. Cherryville, ▇▇▇▇▇▇ County, North Carolina
11. Beacon Falls, New Haven County, Connecticut
12. Guilford, New Haven County, Connecticut
13. Clifton, Passaic County, New Jersey
14. Norwalk, Fairfield County, Connecticut
15. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
16. ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
SCHEDULE 6.01
Material Subsidiaries
Percent of Capital
Jurisdiction Stock Owned by ▇▇▇▇▇▇ or
Subsidiary Organization a Subsidiary Thereof
---------- ------------ ------------------------
Word, Incorporated Delaware 100%
PPC, Inc. North Carolina 100%
Editorial Caribe,
Inc. Florida 100%
Morningstar Radio
Network, Inc. Texas 80%
▇▇▇▇▇▇ Word Limited United Kingdom 100%
Word Communications,
Ltd. Canada, British 100%
Columbia
Word Direct, Inc. Texas 100%
Word Direct Partners,
L.P. Texas 100%
The ▇.▇. ▇▇▇▇▇▇
Company Delaware 100%
855763 Ontario
Limited Canada, Ontario 100%
SCHEDULE 6.05
Pending or Threatened Litigation
NONE
SCHEDULE 6.08(a)
Environmental Compliance
NONE
SCHEDULE 6.08(b)
Environmental Notices
NONE
SCHEDULE 6.08(c)
Environmental Permits
NONE
SCHEDULE 6.11
Burdensome Restrictions
NONE
SCHEDULE 6.12
Tax Filings and Payments
▇▇▇▇▇▇ is in the process of registering for all necessary
Canadian General Sales Tax ("G.S.T.") and Provincial
Sales Tax ("P.S.T.") certifications necessary for
▇▇▇▇▇▇'▇ third party fulfillment vendors in the U.S.
to collect Canadian GST and/or PST on mail order
shipments to Canadian customers. Annual remittance
under these registrations is anticipated to be less
than $80,000 (Canadian), and any amounts collected to date are
reflected on the U.S. consolidated books and records of
▇▇▇▇▇▇.
SCHEDULE 6.13
Subsidiaries
Word, Incorporated
PPC, Inc.
Editorial Caribe, Inc.
Morningstar Radio Network, Inc.
▇▇▇▇▇▇ Word Limited
Word Communications, Ltd.
Word Direct, Inc.
Word Direct Partners, L.P.
The ▇.▇. ▇▇▇▇▇▇ Company
855763 Ontario Limited
Elm Hill Press, Inc.
▇▇▇▇▇▇ Acquisition Corp.
Triunity, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Export, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Service Corp.
Royal Publishers, Inc.
Dominion Publishers, Inc.
▇▇▇▇▇▇ Media, Inc.
▇▇▇▇▇▇ Communications, Inc.
TNI Cassette Corporation
▇.▇. ▇▇▇▇▇▇ Catalogue, Inc.
American Sings, Inc.
American Bible Company, Inc.
Lars Desert Oasis
Suncare Products, Inc.
CRG Acquisition, Inc.
Word Direct Marketing
Services, Inc.
SCHEDULE 6.14
Leases
Premises Landlord Documents
-------- -------- ---------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ Lease
Meridian Village Plaza Realty Co. 4/29/94
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇, Month to
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Inc. Month
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇. P.L.C. Realty Lease
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Associates 11/1/93
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ Real Lease
▇▇▇▇ #▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇/▇/▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Atlanta Gift Mart Atlanta Gift Lease
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Market, L.P. 9/26/89
Suite 1521 Amend.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 4/16/90
Dallas Trade Mart Dallas Market Lease
Room 1058 Center Company, 10/19/94
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Chrysantheum First Lease
Suites 303-305 Operating 10/19/93
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Corporation
SCHEDULE 6.15
Employee Benefit Matters
▇▇▇▇▇▇ has, through its subsidiary, CRG Acquisition, Inc.,
administrative and trustee responsibility for the Rytex Company
Employees Pension Plan, a defined benefit pension plan. ▇▇▇▇▇▇
also administers for its employees the ▇.▇. ▇▇▇▇▇▇ Company
Employee Stock Ownership Plan and the ▇.▇. ▇▇▇▇▇▇ Company
401(k) Savings and Investment Plan.
SCHEDULE 6.16
Intellectual Property Matters
NONE
SCHEDULE 6.17
Ownership of Properties
NONE
SCHEDULE 6.18
Refinanced Indebtedness
NONE
SCHEDULE 6.20
Labor Matters
NONE
SCHEDULE 6.21
Dividend Restrictions
NONE
SCHEDULE 6.23
Second Fiscal Quarter 1995 Calculations
(calculated as of September 30, 1995)
(a) Interest Coverage Ratio 2.6 : 1.00
(b) Funded Debt to Total Capital .445 : 1.00
(c) Senior Funded Debt to Total
Capital .210 : 1.00
SCHEDULE VIII
Subsidiaries of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Excluded from
Certain Provisions of Amended and Restated
Credit Agreement
Subsidiary Approximate Market Value
of Assets Owned
---------- ------------------------
PART A
Elm Hill Press, Inc. $40,000
▇▇▇▇▇▇ Acquisition Corp. $-0-
Triunity, Inc. $-0-
▇▇▇▇▇▇ ▇▇▇▇▇▇ Export, Inc. $-0-
▇▇▇▇▇▇ ▇▇▇▇▇▇ Service Corp. $-0-
Royal Publishers, Inc. $-0-
Dominion Publishers, Inc. $-0-
▇▇▇▇▇▇ Media, Inc. $-0-
▇▇▇▇▇▇ Communications, Inc. $-0-
American Sings, Inc. $-0-
CRG Acquisition, Inc. $-0-
Word Direct Marketing
Services, Inc. $-0-
PART B
American Bible Company, Inc. $-0-
Lars Desert Oasis
Suncare Products, Inc. $-0-
TNI Cassette Corporation $200,000
▇.▇. ▇▇▇▇▇▇ Catalogue, Inc. $-0-
SCHEDULE 11.01(b)
Existing Indebtedness
1. Indebtedness of ▇▇▇▇▇▇ in connection with
$2,850,000 Industrial Development Revenue Refunding
Bonds, Series 1990 (▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Project) of
the Industrial Development Board of the Metropolitan
Government of Nashville and Davidson County (the
"Board"), as evidenced by:
(a) Loan Agreement dated as of May 1, 1990 from the
Board to ▇▇▇▇▇▇; and
(b) Reimbursement Agreement dated as of May 1, 1990
between ▇▇▇▇▇▇ and SunTrust.
2. $5,000,000 Construction Loan from SunTrust to ▇▇▇▇▇▇,
made pursuant to a Construction Loan Agreement dated as
of March 31, 1992 and evidenced by a $5,000,000
Promissory note of the same date.
3. Indebtedness of ▇▇▇▇▇▇ in connection with
$1,215,000 Industrial Development Revenue Refunding
Bonds, Series 1976 (▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Project) of
the Board, as evidenced by Loan Agreement dated as
of December 1, 1976 from the Board to ▇▇▇▇▇▇.
4. Capitalized lease for computer equipment between
Comdisco, Inc. and ▇▇▇▇▇▇ dated December 21, 1990 in
the approximate amount of $1,600,000.
5. The SunTrust Letter of Credit Facility.
6. The National City Bank, Kentucky (formerly known as
First National Bank of Louisville) Letter of Credit
Facility.
7. Promissory note dated June 26, 1989 in the aggregate
principal amount of $2,250,000 from Word
Communications Limited (a British Columbia
corporation) and Word, Incorporated (the parent
corporation of Word Communications Limited).
8. $10,000,000 Loan from Metropolitan Life Insurance
Company to ▇▇▇▇▇▇ (to be assumed by ▇▇▇▇▇▇) made
pursuant to a Loan Agreement dated September 21, 1989.
9. $5,000,000 Loan from Metropolitan Life Insurance Company
to ▇▇▇▇▇▇ (to be assumed by ▇▇▇▇▇▇) made pursuant to a
Loan Agreement dated June 23, 1994.
10. $55,000,000 of Subordinated Debt evidenced by that
certain Indenture dated as of November 30, 1992,
between ▇▇▇▇▇▇ and Boatmen's Trust Company, as
Trustee.
SCHEDULE 11.02
Existing Liens
1. Liens securing the indebtedness described in Item 1 of
Schedule 11.01(b), including:
a. Deed of Trust from ▇▇▇▇▇▇ to A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as
Trustee dated as of May 1, 1990, of record in
Book 8111, page 986, Register's Office for
Davidson County, Tennessee ("RODCT")
b. Collateral Assignment of Rents and Leases dated as
of May 1, 1990 between ▇▇▇▇▇▇ and the Board and
Third National Bank in Nashville, of record in Book
8112, page 1, RODCT.
c. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as
Debtor and Third National Bank in Nashville as
Secured Party, filed with the Tennessee
Secretary of State as #971857.
2. Liens securing the indebtedness described in Item 2 of
Schedule 11.01(b), including:
a. Tennessee Deed of Trust, Assignment of Rents and
Fixture Filing (Construction Mortgage) dated March
31, 1992 from ▇▇▇▇▇▇ to A. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Trustee, for the benefit of Third National Bank in
Nashville, of record in Book 8589, page 428, RODCT.
b. Security Agreement dated as of March 31, 1992
between ▇▇▇▇▇▇ and Third National Bank in Nashville.
c. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as
Debtor and Third National Bank in Nashville as
secured party, of record in Book 8589, page 448,
RODCT.
d. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as
Debtor and Third National Bank in Nashville as
secured party, filed with the Tennessee Secretary
of State as #971857.
3. Liens securing the indebtedness described in Item 3 of
Schedule 11.01(b), including:
a. Deed of Trust from ▇▇▇▇▇▇ to Third National Bank in
Nashville, as Trustee, dated as of December 1, 1976,
of record in Book 5099, page 628, RODCT.
b. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as
Debtor and Third National Bank in Nashville as
Secured Party, filed with the Tennessee Secretary
of State as #919595.
c. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as
Debtor and Third National Bank in Nashville as
Secured Party, of record in Book 5099, page 724,
RODCT.
4. UCC-1 Financing Statement showing Word, Incorporated as
Debtor and Banc One Leasing Corporation as Secured
Party, filed with the Tennessee Secretary of State as
#920537.
5. UCC-1 Financing Statement showing Word, Incorporated as
Debtor and Banc One Leasing Corporation as Secured
Party, filed with the Tennessee Secretary of State as
#956590.
6. UCC-1 Financing Statement showing Word, Incorporated
as Debtor and Vanguard Financial Service Corp. as
Secured Party, filed with the Tennessee Secretary of
State as #898863.
7. UCC-1 Financing Statement showing Printplus Publications,
Inc. as Debtor and Capital Leasing and Financial, Inc. as
Secured Party, filed with the Tennessee Secretary of State
as #949193.
8. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as the Debtor and
Comdisco, Inc. (Hitachi Credit as assignee) as Secured
Party, filed with the Tennessee Secretary of State as
#857974.
9. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as Debtor and
Comdisco, Inc. as Secured Party, filed with the Tennessee
Secretary of State as #864520.
10. UCC-1 Financing Statement showing ▇▇▇▇▇▇ as Debtor and
Capitol Systems, Inc. (Contel Credit Corporation as
assignee) as Secured Party, filed with the Tennessee
Secretary of State as #688961.
11. UCC-1 Financing Statement showing Editorial Caribe, Inc.
as the Debtor and Latin America Mission Publications,
Incorporated as the Secured Party, filed with the
Florida Secretary of State as # 91 ▇▇▇▇▇▇▇▇▇▇.
12. UCC-1 Financing Statement showing Editorial Caribe, Inc.
as the Debtor and Garborg's Heart'n Home, Inc. as the
Secured Party, filed with the Florida Secretary of State
as 92 0000164003.
13. UCC-1 Financing Statement showing Morning Star as the
Debtor and ▇▇▇▇ Deere Co. as the Secured Party, filed
with the Florida Secretary of State as #91 0000084244.
14. Liens disclosed in UCC Searches of ▇▇▇▇▇▇ in Dade County,
Florida and the Secretary of State of New Jersey.