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EXHIBIT 4.1
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CREDIT AGREEMENT
dated as of January 21, 1997
among
ROCK-TENN COMPANY,
THE LENDERS LISTED HEREIN,
and
SUNTRUST BANK, ATLANTA
as Agent
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CONTENTS
ARTICLE 1. DEFINITIONS; CONSTRUCTION ...................................... 1
Section 1.1. Definitions .............................................. 1
Section 1.2. Accounting Terms and Determination ....................... 19
Section 1.3. Other Definitional Terms ................................. 19
Section 1.4. Exhibits and Schedules ................................... 19
ARTICLE 2. REVOLVING LOANS; COMPETITIVE BID LOANS ......................... 20
Section 2.1. Commitment; Use of Proceeds .............................. 20
Section 2.2. Revolving Credit Notes; Repayment of Principal ........... 20
Section 2.3. Reduction of Revolving Credit and Swing Line
Commitments; Mandatory Prepayment......................... 21
Section 2.4. Change In Control of the Borrower ........................ 22
Section 2.5. Extension of Commitments ................................. 22
Section 2.6. Competitive Bid Loans .................................... 23
Section 2.7. Competitive Bid Notes; Repayment of Principal ............ 26
Section 2.8. Limitation on the Amount of Bid Loans .................... 26
Section 2.9. Pro Rata Payments ........................................ 26
ARTICLE 3. SWING LINE FACILITY ............................................ 28
Section 3.1. Swing Line Facility; Use of Proceeds ..................... 28
Section 3.2. Swing Line Note; Repayment of Principal .................. 29
Section 3.3. Voluntary Reduction of Swing Line Commitment ............. 29
Section 3.4. Refunding Swing Line Loans with Proceeds of
Mandatory Revolving Loans................................. 29
ARTICLE 4. GENERAL LOAN TERMS ............................................. 31
Section 4.1. Funding Notices .......................................... 31
Section 4.2. Disbursement of Funds .................................... 33
Section 4.3. Interest ................................................. 34
Section 4.4. Interest Periods; Maximum Number of Borrowings ........... 36
Section 4.5. Fees ..................................................... 37
Section 4.6. Effective Date for Adjustment to Facility Fee
Percentage and Applicable Margin.......................... 38
Section 4.7. Voluntary Prepayments of Borrowings ...................... 38
Section 4.8. Manner of Payment, Calculation of Interest, Taxes ........ 39
Section 4.9. Interest Rate Not Ascertainable, etc ..................... 42
Section 4.10. Illegality ............................................... 43
Section 4.11. Increased Costs .......................................... 43
Section 4.12. Lending Offices .......................................... 45
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Section 4.13. Funding Losses ......................................... 45
Section 4.14. Assumptions Concerning Funding of Eurodollar
and Competitive Bid Rate Advances....................... 46
Section 4.15. Apportionment of Payments .............................. 46
Section 4.16. Sharing of Payments, Etc ............................... 47
Section 4.17. Capital Adequacy ....................................... 47
Section 4.18. Limitation on Certain Payment Obligations .............. 48
ARTICLE 5. CONDITIONS TO BORROWINGS ....................................... 49
Section 5.1. Conditions Precedent to Initial Loans................... 49
Section 5.2. Conditions to All Loans. ............................... 51
ARTICLE 6. REPRESENTATIONS AND WARRANTIES ................................. 52
Section 6.1. Corporate Existence; Compliance with Law. .............. 52
Section 6.2. Corporate Power; Authorization. ........................ 52
Section 6.3. Enforceable Obligations. ............................... 52
Section 6.4. No Legal Bar. .......................................... 53
Section 6.5. No Material Litigation. ................................ 53
Section 6.6. Investment Company Act, Etc. ........................... 53
Section 6.7. Margin Regulations. .................................... 53
Section 6.8. Compliance With Environmental Laws. .................... 53
Section 6.9. Insurance. ............................................. 54
Section 6.10. No Default. ............................................ 54
Section 6.11. No Burdensome Restrictions. ............................ 54
Section 6.12. Taxes. ................................................. 55
Section 6.13. Subsidiaries. .......................................... 55
Section 6.14. Financial Statements. .................................. 55
Section 6.15. ERISA. ................................................. 56
Section 6.16. Patents, Trademarks, Licenses, Etc. .................... 57
Section 6.17. Ownership of Property; Liens. .......................... 57
Section 6.18. Indebtedness. .......................................... 57
Section 6.19. Financial Condition. ................................... 58
Section 6.20. Labor Matters. ......................................... 58
Section 6.21. Payment or Dividend Restrictions. ...................... 58
Section 6.22. Disclosure. ............................................ 59
ARTICLE 7. AFFIRMATIVE COVENANTS .......................................... 60
Section 7.1. Corporate Existence, Etc. ............................... 60
Section 7.2. Compliance with Laws, Etc. .............................. 60
Section 7.3. Payment of Taxes and Claims, Etc. ....................... 60
Section 7.4. Keeping of Books. ....................................... 60
Section 7.5. Visitation, Inspection, Etc. ............................ 61
Section 7.6. Insurance; Maintenance of Properties. ................... 61
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Section 7.7. Financial Reports. ..................................... 61
Section 7.8. Notices Under Certain Other Indebtedness. .............. 63
Section 7.9. Notice of Litigation. .................................. 63
Section 7.10. Subsidiary Guarantees. ................................. 64
ARTICLE 8. NEGATIVE COVENANTS .............................................. 65
Section 8.1. Financial Requirements. ................................ 65
Section 8.2. Liens. ................................................. 65
Section 8.3. Limitations on Funded Debt of Restricted Subsidiaries... 67
Section 8.4. Merger and Sale of Assets. ............................. 67
Section 8.5. Transactions with Affiliates. .......................... 69
Section 8.6. Nature of Business. .................................... 69
Section 8.7. Regulations G, T, U and X. ............................. 69
Section 8.8. ERISA Compliance. ...................................... 69
Section 8.9. Limitations on Subsidiaries which are not
Restricted Subsidiaries................................. 69
ARTICLE 9. EVENTS OF DEFAULT............................................... 71
Section 9.1. Payments ............................................... 71
Section 9.2. Covenants Without Notice ............................... 71
Section 9.3. Other Covenants ........................................ 71
Section 9.4. Representations ........................................ 71
Section 9.5. Non-Payments of Other Indebtedness ..................... 71
Section 9.6. Defaults Under Other Agreements ........................ 72
Section 9.7. Bankruptcy ............................................. 72
Section 9.8. ERISA .................................................. 72
Section 9.9. Money Judgment ......................................... 73
Section 9.10. Default Under Other Credit Documents ................... 74
ARTICLE 10. THE AGENT...................................................... 75
Section 10.1. Appointment of Agent ................................... 75
Section 10.2. Authorization of Agent with Respect to the
Security Documents. .................................... 75
Section 10.3. Nature of Duties of Agent .............................. 76
Section 10.4. Lack of Reliance on the Agent .......................... 76
Section 10.5. Certain Rights of the Agent ............................ 76
Section 10.6. Reliance by Agent ...................................... 77
Section 10.7. Indemnification of Agent ............................... 77
Section 10.8. The Agent in its Individual Capacity ................... 77
Section 10.9. Holders of Notes ....................................... 78
Section 10.10. Successor Agent ........................................ 78
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ARTICLE 11. MISCELLANEOUS...................................................... 79
Section 11.1. Notices ................................................... 79
Section 11.2. Amendments, Etc ........................................... 79
Section 11.3. No Waiver; Remedies Cumulative ............................ 79
Section 11.4. Payment of Expenses, Etc .................................. 80
Section 11.5. Right of Setoff ........................................... 82
Section 11.6. Benefit of Agreement; Assignments and Participations....... 82
Section 11.7. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial....................................... 85
Section 11.8. Independent Nature of Lenders' Rights ..................... 85
Section 11.9. Counterparts .............................................. 85
Section 11.10. Effectiveness; Survival.................................... 86
Section 11.11. Severability............................................... 86
Section 11.12. Independence of Covenants.................................. 86
Section 11.13. Change in Accounting Principles, Fiscal Year or Tax Laws... 86
Section 11.14. Headings Descriptive; Entire Agreement..................... 87
Section 11.15. Disclosure of Confidential Information..................... 87
Section 11.16. Interest................................................... 88
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SCHEDULES
Schedule 6.1. Organization and Ownership of Subsidiaries
Schedule 6.5. Certain Pending and Threatened Litigation
Schedule 6.8. Environmental Compliance
Schedule 6.8. Environmental Notices
Schedule 6.8. Environmental Permits
Schedule 6.11. Burdensome Restrictions
Schedule 6.13 Subsidiaries
Schedule 6.15 ERISA Matters
Schedule 6.16. Patent, Trademark, License, and Other Intellectual Property
Matters
Schedule 6.17. Ownership of Properties
Schedule 6.18. Indebtedness; Liens
Schedule 6.20. Labor Matters
Schedule 6.21. Dividend Restrictions
TABLE OF EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Competitive Bid Note
Exhibit C Form of Swing Line Note
Exhibit D Form of Compliance Certificate
Exhibit E Form of Competitive Bid Request
Exhibit F Form of Notice of Competitive Bid Request
Exhibit G Form of Competitive Bid
Exhibit H Form of Competitive Bid Accept/Reject Letter
Exhibit I Closing Certificate
Exhibit J-1 Form of Opinion of Corporate Counsel
Exhibit J-2 Form of Opinion of King & Spalding
Exhibit K Form of Assignment and Acceptance Agreement
Exhibit L Form of Contribution Agreement
Exhibit M Form of Subsidiary Guarantee
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Table of Definitions
Acquired Company, 1
Adjusted LIBO Rate, 1
Advance, 2
Affiliate, 2
Agent, 1, 2
Agreement, 2
Applicable Commitment Percentage, 2
Applicable Margin, 3
Applicable Percentages, 38
Assignment and Acceptance, 3
Available Revolving Credit Commitment, 3
Bankruptcy Code, 3
Base Rate, 3
Base Rate Advance, 3
Borrower, 1, 3
Borrowing, 4
Business Day, 4
Calculation Date, 38
Capital Assets, 4
Capital Lease, 4
Capital Lease Obligation, 4
Change in Control, 4
Change in Control Provision, 4
Closing Date, 5
Commitment, 5
Competitive Bid, 5
Competitive Bid Accept/Reject Letter, 5
Competitive Bid Facility, 5
Competitive Bid Loan, 5
Competitive Bid Note, 5
Competitive Bid Rate, 5
Competitive Bid Rate Advance, 5
Competitive Bid Request, 5
Consenting Lenders, 22
Consolidated Companies, 6
Consolidated Funded Debt, 6
Consolidated Net Income, 6
Consolidated Net Income Available For Fixed Charges, 6
Consolidated Net Loss, 6
Consolidated Net Worth, 6
Continuing Lenders, 23
Contractual Obligation, 6
Contribution Agreement, 7
Cost of Funds Advance, 7
Cost of Funds Rate, 7
Credit Documents, 7
Default, 7
Dollar, 7
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EBITDA, 7
Environmental Laws, 7
Equity Offering, 8
ERISA, 8
ERISA Affiliate, 8
Eurodollar Advance, 8
Event of Default, 8
Executive Officer, 8
Existing Date, 22
Existing Swing Line Lender, 28
Facilities, 8
Facility, 8
Facility Fee, 8, 37
Facility Fee Percentage, 9
Federal Funds Rate, 9
Fee Letter, 9
Financial Officer, 9
Financial Report, 9
Fixed Charges, 10
Funded Debt, 10
GAAP, 10
Guaranty, 10
Hazardous Substances, 10
Income Taxes, 11
Indebtedness, 11
Indebtedness for Borrowed Money, 11
Interest Expense, 12
Interest Period, 12
Interest Rate Contract, 12
Lender, 12
Lenders, 1, 12
Lending Office, 12
LIBOR, 12
Lien, 13
Loans, 13
Margin Regulations, 13
Material, 13
Materially Adverse Effect, 13
Maturity Date, 13
▇▇▇▇▇'▇, 13
Multiemployer Plan, 13
Net Sale Proceeds, 13
New Lender, 23
New Swing Line Lender, 28
Non-Consenting Lenders, 22
Notes, 14
Notice of Borrowing, 14
Notice of Conversion/Continuation, 14
Notice of Conversion/Continuation of Swing Line Loans, 14
Notice of Swing Line Loan, 14
Obligations, 14
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Payment Office, 14
PBGC, 14
Person, 14
Plan, 14
Prior Agreements, 15
Purchase Agreement, 15
Purchase Money Indebtedness, 15
Rating Agency, 15
Reduction, 21
Refunded Swing Line Loans, 30
Regulation D, 15
Required Lenders, 15
Requirement of Law, 15
Restricted Investment, 15
Restricted Subsidiary, 16
Reuters Screen, 16
Revolving Credit Commitment, 16
Revolving Credit Notes, 17
Revolving Loans, 17
Security Documents, 17
Sonoco Joint Venture, 17
Standard & Poor's, 17
Subsidiary, 17
Subsidiary Guarantee, 17
Subsidiary Guarantor, 17
SunTrust, 1
Swing Line Commitment, 17
Swing Line Facility, 18
Swing Line Lender, 18
Swing Line Lender Replacement Date, 28
Swing Line Loans, 18
Swing Line Note, 18
Tax Code, 18
Taxes, 18
Telerate, 18
Total Capitalization, 18
Total Commitments, 18
Type, 18
U.S. Dollar, 7
Unrestricted Subsidiary, 18
Voting Stock, 19
Waldorf Credit Agreement, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ Indenture, 19
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT made and entered into as of January 21, 1997, by
and among ROCK-TENN COMPANY, a Georgia corporation (the "Borrower"), SUNTRUST
BANK, ATLANTA a banking corporation organized under the laws of the State of
Georgia ("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 which become "Lenders" as provided herein (SunTrust, and
such other banks, lending institutions, and assignees referred to collectively
herein as the "Lenders"), and SUNTRUST BANK, ATLANTA in its capacity as agent
for the Lenders (together with any successor agent for such Lenders as may be
appointed from time to time pursuant to Article 10. hereof) (the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make a revolving
credit facility and swing line facility available to the Borrower in an amount
not to exceed $400,000,000 at any one time outstanding the proceeds of which are
to be used for the repayment of certain existing indebtedness of Borrower, for
financing the acquisition of Wabash Corporation, a Delaware corporation (the
"Acquired Company"), for working capital and for other general corporate
purposes;
WHEREAS, the Lenders have agreed to make such a credit facility
available to the Borrower on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Borrower, the Lenders and the Agent agree, upon the
terms and subject to the conditions set forth herein as follows:
ARTICLE 1. DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS.
In addition to the other terms defined herein, the following terms used
herein shall have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Advance, the rate obtained by dividing (A) LIBOR for such
Interest Period by (B) a percentage equal to 1 minus the then stated maximum
rate (stated as a decimal) of all reserves requirements (including, without
limitation, any marginal, emergency,
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supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or against any successor category of liabilities as defined in
Regulation D).
"Advance" shall mean any principal amount advanced and remaining
outstanding at any time under (i) the Revolving Loans, which Advances shall be
made or outstanding as Base Rate Advances or Eurodollar Advances, as the case
may be, (ii) the Swing Line Loans, which Advances shall be made or outstanding
as Base Rate Advances, Cost of Funds Advances or Eurodollar Advances, as the
case may be, or (iii) the Competitive Bid Loans, which Advances shall be made or
outstanding as Competitive Bid Rate Advances.
"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, excluding
the Borrower and its Restricted Subsidiaries. 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, Atlanta, a Georgia banking
corporation, and any successor agent appointed pursuant to Section 10.10.
hereof.
"Agreement" shall mean this Credit Agreement, as hereafter amended,
restated, supplemented or otherwise modified from time to time.
"Applicable Commitment Percentage" shall mean, for each Lender, a
fraction, the numerator of which shall be the then amount of such Lender's
Commitment and the denominator of which shall be the aggregate amount of the
Commitments of all the Lenders, which Applicable Commitment Percentage for each
Lender as of the Closing Date is as set forth on the signature pages hereof
under the caption "Applicable Commitment Percentage".
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"Applicable Margin" shall mean the per annum rates set forth across
from the Ratio of Consolidated Funded Debt to Total Capitalization as calculated
as of the end of the preceding fiscal quarter determined by reference to the
table set forth below. Any changes to the Applicable Margin will be effective as
of the date specified in Section 4.6..
Ratio of Consolidated Funded Applicable Margin
Debt to Total Capitalization
>55% .500%
>50% but <55% .425%
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>45% but <50% .325%
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>35% but <45% .275%
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>25% but <35% .225%
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<25% .175%
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"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and another financial institution in accordance with
the terms of this Agreement and substantially in the form of Exhibit K.
"Available Revolving Credit Commitment shall mean at any time the
excess, if any, of the Total Commitments over (i) all outstanding Revolving
Loans, (ii) all outstanding Competitive Bid Rate Advances, and (iii) all
outstanding Swing Line Loans.
"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.) and any
successor statute.
"Base Rate Advance" shall mean an Advance made or outstanding as a
Swing Line Loan or Revolving Loan, bearing interest based on the Base Rate.
"Base Rate" shall mean (with any change in the Base Rate to be
effective as of the date of change of either of the following rates) the higher
of (i) the rate which the Agent publicly announces from time to time as its
prime lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%) per
annum. The Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to customers; the
Agent may make commercial loans or other loans at rates of interest at, above or
below the Agent's prime lending rate.
"Borrower" shall mean Rock-Tenn Company, a Georgia corporation, its
succes-
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sors and permitted assigns.
"Borrowing" shall mean the incurrence by Borrower under any Facility of
Advances of one Type concurrently having the same Interest Period or the
continuation or conversion of an existing Borrowing or Borrowings in whole or in
part.
"Business Day" shall mean any day excluding Saturday, Sunday and any
other day on which banks are required or authorized to close in Atlanta, Georgia
and, if the applicable Business Day relates to Eurodollar Advances, excluding
any day on which trading is not carried on by and between banks in deposits of
the applicable currency in the applicable interbank Eurocurrency market.
"Capital Assets" shall mean, collectively, for any Person, all fixed
assets, whether tangible or intangible.
"Capital Lease Obligation" shall mean, with respect to any Capital
Lease, the amount of the obligation of the lessee thereunder which would, in
accordance with GAAP, appear on a balance sheet of such lessee in respect of
such Capital Lease.
"Capital Lease" shall mean, as applied to any Person, any lease of any
property (whether real, personal or mixed) by such Person as lessee which would,
in accordance with GAAP, be required to be classified and accounted for as a
capital lease on a balance sheet of such Person, other than, in the case of
Borrower or any of its Restricted Subsidiaries, any such lease under which
Borrower or a wholly-owned Restricted Subsidiary of Borrower is the lessor.
"Change in Control" shall mean, as applied to the Borrower, that,
during any period of twelve (12) consecutive calendar months (i) more than fifty
percent (50%) of the members of the Board of Directors of the Borrower who were
members on the first day of such period shall have resigned or been removed or
replaced, other than as a result of death, disability, or change in personal
circumstances, or (ii) any Person or "Group" (as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, but excluding (A) any employee
benefit or stock ownership plans of the Borrower, and (B) members of the Board
of Directors and executive officers of the Borrower as of the date of this
Agreement, members of the immediate families of such members and executive
officers, and family trusts and partnerships established by or for the benefit
of any of the foregoing individuals) shall have acquired more than fifty percent
(50%) of the combined voting power of all classes of common stock of the
Borrower, except that the Borrower's purchase of its common stock outstanding on
the date hereof which results in one or more of the Borrower's shareholders of
record as of the date of this Agreement controlling more than fifty percent
(50%) of the combined voting power of all classes of the common stock of the
Borrower shall not constitute an acquisition hereunder.
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"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 Borrower evidencing debt or a commitment
to extend credit in excess of $10,000,000 which requires, or permits the
holder(s) of such Indebtedness of Borrower to require that such Indebtedness of
Borrower be redeemed, repurchased, defeased, prepaid or repaid, either in whole
or in part, or the maturity of such Indebtedness of Borrower to be accelerated
in any respect, as a result of a change in ownership of the capital stock of
Borrower or voting rights with respect thereto.
"Closing Date" shall mean January 21, 1997 or such later date on which
the initial Loans are made and the conditions set forth in Section 5.1. and 5.2.
are satisfied or waived.
"Commitment" shall mean, for any Lender at any time, any of its
Revolving Credit Commitment, or in the case of the Swing Line Lender, the Swing
Line Commitment, as the context may indicate.
"Competitive Bid Accept/Reject Letter" shall mean a notification made
by the Borrower pursuant to Section 2.6. substantially in the form of Exhibit H.
"Competitive Bid Facility" shall mean the facility established pursuant
to Section 2.6.
"Competitive Bid Loan" shall mean a Loan made up of Advances by all of
those Lenders whose Competitive Bids have been accepted by the Borrower pursuant
to the same Competitive Bid Request under the bidding procedure described in
Section 2.6. for the same Interest Period and interest rate (with the
understanding that two Competitive Bid Loans may be made pursuant to a single
Competitive Bid Request).
"Competitive Bid Note" shall mean a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit B
hereto, evidencing the indebtedness of the Borrower to such Lender with respect
to outstanding Competitive Bid Rate Advances made by such Lender pursuant to
this Agreement, either as originally executed or as it may be from time to time
supplemented, modified, amended, renewed or extended.
"Competitive Bid Rate Advance" shall mean an Advance made by a Lender
to the Borrower pursuant to the bidding procedure described in Section 2.6.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.6., the fixed rate of interest per annum offered by
the Lender making the Competitive Bid for the relevant Interest Period.
"Competitive Bid Request" shall mean a request made by the Borrower
pursuant
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to Section 2.6. substantially in the form of Exhibit E.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Bid Loan pursuant to Section 2.6.
"Consolidated Companies" shall mean, collectively, Borrower and all of
its Restricted Subsidiaries.
"Consolidated Funded Debt" shall mean the Funded Debt of the Borrower
and its Restricted Subsidiaries on a consolidated basis.
"Consolidated Net Income" shall mean the net income of the Borrower and
its Restricted Subsidiaries on a consolidated basis as defined according to GAAP
after excluding (to the extent included in net income) the sum of (i) any net
loss or any undistributed net income of any non-majority owned Subsidiary, (ii)
the net income or loss of any Restricted Subsidiary for any period prior to the
date it became a Restricted Subsidiary, (iii) the gain or loss (net of any tax
effect) resulting from the sale of any Capital Assets other than in the ordinary
course of business of the Borrower and its Restricted Subsidiaries, and (iv)
other extraordinary items, as defined by GAAP, of the Borrower and its
Restricted Subsidiaries.
"Consolidated Net Income Available For Fixed Charges" shall mean the
sum of (i) Consolidated Net Income (or Consolidated Net Loss, as the case may
be), (ii) the provision for Income Taxes of the Borrower and its Restricted
Subsidiaries, and (iii) Fixed Charges.
"Consolidated Net Loss" shall mean the net losses of the Borrower and
its Restricted Subsidiaries on a consolidated basis as defined according to GAAP
after excluding (to the extent included in net income) the sum of (i) any net
loss or any undistributed net income of any non-majority owned Subsidiary (ii)
the net income or loss of any Restricted Subsidiary for any period prior to the
date it became a Restricted Subsidiary, (iii) the gain or loss (net of any tax
effect) resulting from the sale of any Capital Assets other than in the ordinary
course of business of the Borrower and its Restricted Subsidiaries, and (iv)
other extraordinary items, as defined by GAAP, of the Borrower and its
Restricted Subsidiaries.
"Consolidated Net Worth" shall mean the stockholders' equity of the
Borrower and its Restricted Subsidiaries minus Restricted Investments but only
to the extent the Restricted Investments exceed in the aggregate ten percent
(10%) of stockholders' equity. For purposes of this definition, stockholders'
equity shall be determined on a consolidated basis in accordance with GAAP, as
applied on a consistent basis by the Borrower in the calculation of such amounts
in the Borrower's most recent Financial Reports.
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"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 a Contribution Agreement
substantially in the form of Exhibit "L" executed and delivered by one or more
Subsidiary Guarantors in favor of the Agent, for the ratable benefit of the
Lenders, together with all amendments and supplements thereto.
"Cost of Funds Advance" shall mean any Advance hereunder that bears
interest based on the Cost of Funds Rate provided, that, such Advances must have
an Interest Period of not more than thirty (30) days.
"Cost of Funds Rate" shall mean a rate of interest that the Swing Line
Lender may quote from time to time in accordance with Section 3.1. hereof that
the Swing Line Lender determines in its sole and absolute discretion is the cost
incurred by the Swing Line Lender in obtaining the funds to make an Advance
hereunder.
"Credit Documents" shall mean, collectively, this Agreement, the Notes,
the Fee Letter, the Subsidiary Guarantees, the Contribution Agreement, the
Security Documents and all other instruments, documents, certificates,
agreements and writings executed in connection herewith.
"Default" shall mean any event or condition the occurrence of which
constitutes or would, with the lapse of time or the giving of notice, or both,
constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean lawful money of
the United States of America.
"EBITDA" shall mean for any fiscal period, Consolidated Net Income (or
Consolidated Net Loss, as the case may be) for such period plus (a) the
aggregate amount deducted in determining such Consolidated Net Income (Loss) in
respect of (i) Interest Expense, (ii) Income Taxes, and (iii) depreciation and
amortization expense of the Borrower and its Restricted Subsidiaries determined
in accordance with GAAP, in each case for the applicable fiscal period, and (b)
cash distributions of earnings of Unrestricted Subsidiaries made to a
Consolidated Company.
"Environmental Laws" shall mean all federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, now or hereafter in effect (including, without limitation,
those with respect to asbestos or asbestos containing material or exposure to
asbestos or asbestos containing material), relating to pollution or protection
of the environment and relating to public health and
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17
safety, relating to (i) emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals or industrial toxic or hazardous
constituents, substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law into the environment (including, without limitation, ambient air, surface
water, ground water, land surface or subsurface strata), or (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of any Hazardous Substance, petroleum including
crude oil or any fraction thereof, any petroleum product or other waste,
chemicals or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom. Such Environmental Laws to include,
without limitation (i) the Clean Air Act (42 U.S.C. Section 7401 et seq.), (ii)
the Clean Water Act (33 U.S.C. Section 1251 et seq.), (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.),
and (vi) all applicable national and local laws or regulations with respect to
environmental control.
"Equity Offering" means an underwritten public offering of any capital
stock of the Borrower, or any debt security convertible into or exchangeable for
capital stock of the Borrower, or any debt security issued with a warrant or
other instrument conferring upon its owner the right to purchase capital stock
of the Borrower, in each case pursuant to an effective registration statement
filed with the Securities and Exchange Commission in accordance with the
Securities Act of 1933, as amended.
"ERISA Affiliate" shall mean, with respect to any Person, each trade or
business (whether or not incorporated) which is a member of a group of which
that Person is a member and which is under common control within the meaning of
the regulations promulgated under Section 414 of the Tax Code.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended and in effect from time to time.
"Eurodollar Advance" shall mean an Advance made or outstanding as a
Revolving Loan or a Swing Line Loan, as the case may be, bearing interest based
on the Adjusted LIBO Rate.
"Event of Default" shall have the meaning provided in Article 9.
"Executive Officer" shall mean with respect to any Person, the Chief
Executive Officer, President, Vice Presidents (if elected by the Board of
Directors of such Person), Chief Financial Officer, Treasurer, Secretary and any
Person holding comparable offices
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18
or duties (if elected by the Board of Directors of such Person).
"Facility Fee" shall have the meaning ascribed to it in Section
4.5.(a).
"Facility" or "Facilities" shall mean the Revolving Credit Commitments,
the Swing Line Facility, or the Competitive Bid Facility, as the context may
indicate.
"Facility Fee Percentage" shall mean the per annum rates set forth
across from the Ratio of Consolidated Funded Debt to Total Capitalization as
calculated as of the end of the preceding fiscal quarter determined by reference
to the table set forth below. Any changes to the Facility Fee Percentage will be
effective as of the date specified in Section 4.6.
Ratio of Consolidated Facility Fee
Funded Debt to Total Percentage
Capitalization
>55% .250%
>50% but <55% .200%
-
>45% but <50% .150%
-
>35% but <45% .125%
-
>25% but <35% .100%
-
<25% .075%
-
"Federal Funds Rate" shall mean with respect to any Base Rate Advance,
a fluctuating interest rate per annum equal for each day during which such
Advance is outstanding 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 set forth for each day on Page 4833 of the Telerate at
9:00 a.m. (Atlanta, Georgia time) or if such reporting service is unavailable,
as published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate
is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent.
"Fee Letter"" means that certain letter agreement dated December 6,
1996 between the Borrower and the Agent relating to certain fees from time to
time payable by the Borrower to the Agent, together with all amendments and
supplements thereto.
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"Financial Officer" means with respect to the Borrower, any of the
Chief Financial Officer, Vice President of Finance, and Treasurer.
"Financial Report" means at a specified date, the most recent financial
statements of the Borrower and its Restricted Subsidiaries delivered pursuant to
Section 7.7. of this Agreement.
"Fixed Charges" shall mean the sum of (i) Interest Expense of the
Borrower and its Restricted Subsidiaries, (ii) 100% of lease expense of the
Borrower and its Restricted Subsidiaries (excluding expenses incurred in respect
of Capital Leases) determined in accordance with GAAP, and (iii) preferred stock
dividends, if any, of the Borrower and its Restricted Subsidiaries excluding,
however, any portion of such dividend paid to the Borrower or a Restricted
Subsidiary.
"Funded Debt" shall mean, with respect to any Person, without
duplication and excluding in the case of the Borrower and its Restricted
Subsidiaries intercorporate obligations solely among the Borrower and its
Restricted Subsidiaries, all (i) Indebtedness for Borrowed Money of such Person,
(ii) Capital Lease Obligations of such Person, and (iii) all obligations under
direct or indirect Guaranties in respect of obligations of others of the kinds
referred to in clauses (i) and (ii) above; provided, however, that "Funded Debt"
shall not include any obligations of the Borrower or its Restricted Subsidiaries
with respect to (w) undrawn commercial letters of credit used in the ordinary
course of business, (x) currency exchange agreements, (y) Interest Rate
Contracts or (z) any Indebtedness deemed to be extinguished under GAAP but for
which the Borrower or such Subsidiary remains legally liable.
"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.
"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,
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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.
"Hazardous Substances" 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.
"Income Taxes" shall have the meaning given such term by GAAP.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person which in accordance with GAAP would be shown on the
balance sheet of such Person as a liability (including, without limitation,
obligations for borrowed money and for the deferred purchase price of property
or services, and obligations evidenced by bonds, debentures, notes or other
similar instruments); (ii) all Capital Lease Obligations; (iii) all Guaranties
of such Person (including the stated amount of undrawn letters of credit); and
(iv) Indebtedness of others secured by any Lien upon property owned by such
Person, whether or not assumed. Notwithstanding the foregoing, in determining
the Indebtedness of any Person, (x) there shall be included all obligations of
such Person of the character referred to in clauses (i) through (iv) above
deemed to be extinguished under GAAP but for which such Person remains legally
liable and (y) any deferred obligations of such Person to make payments on any
agreement not to compete which was entered into by such Person in connection
with the acquisition of any business shall be reduced by the effective federal
and state corporate tax rate applicable to such Person in order to recognize the
deductibility of such payments and the resulting reduction of the cash actually
expended by the Person to satisfy such obligation.
"Indebtedness for Borrowed Money" shall mean, with respect to any
Person and without duplication:
(a) Indebtedness for money borrowed, including all revolving
and term Indebtedness and all other lines of credit; and
(b) Indebtedness which
(i) is represented by a note payable or drafts accepted, that
represent extensions of credit;
(ii) constitutes obligations evidenced by bonds, debentures,
notes or similar instruments; or
(iii) constitutes Purchase Money Indebtedness, conditional sales
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21
contracts, title retention debt instruments or other similar
instruments upon which interest charges are customarily paid
or that are issued or assumed as full or partial payment for
property; and
(c) Indebtedness that constitutes a Capital Lease Obligation; and
(d) all reimbursement obligations under any acceptances or any
letters of credit issued in support of Indebtedness of the character described
in clauses (a) through (c) above; and
(e) all Indebtedness of others of the character described in
clauses (a) through (d) above, but only to the extent that such Indebtedness is
subject to a Guaranty of such Person.
"Interest Expense" shall mean interest expense of the Borrower and its
Restricted Subsidiaries determined on a consolidated basis, according to GAAP.
"Interest Period" shall mean (i) as to any Eurodollar Advances, the
interest period selected by the Borrower pursuant to Section 4.4.(a) hereof,
(ii) as to any Competitive Bid Rate Advances, the interest period requested by
the Borrower and agreed to by the participating Lenders pursuant to Section 2.6.
hereof in conformity with Section 4.4.(b) hereof; and (iii) as to any Cost of
Funds Advances, the interest period requested by the Borrower and agreed to by
the Swing Line Lender pursuant to Section 3.1. hereof in conformity with Section
4.4.(c) hereof.
"Interest Rate Contract" shall mean all interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance and other agreements and arrangements designed to provide protection
against fluctuations in interest rates, in each case as the same may be from
time to time amended, restated, renewed, supplemented or otherwise modified.
"Lender" or "Lenders" shall mean SunTrust, the other banks and lending
institutions listed on the signature pages hereof, including, without
limitation, the Swing Line Lender, and each assignee thereof, if any, pursuant
to Section 11.6.(c), together with their corporate successors.
"Lending Office" shall mean for each Lender, the office such Lender may
designate in writing from time to time to Borrower and the Agent with respect to
each Type of Loan.
"LIBOR" shall mean, for any Interest Period, with respect to Eurodollar
Advances the offered rate 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, appearing on the
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22
Reuters Screen LIBO Page 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 Reuters Screen LIBO Page, the rate for that
Interest Period shall be the arithmetic mean of such rates. If the foregoing
rate is unavailable from the Reuters Screen for any reason, then such rate shall
be determined by the Agent from Telerate Page 3750 or, if such rate is also
unavailable on such service, then on any other interest rate reporting service
of recognized standing designated in writing by the Agent to Borrower and the
other Lenders; in any such case rounded, if necessary, to the next higher 1/100
of 1.0%, if the rate is not such a multiple.
"Lien" means any security interest, mortgage, pledge, lien, claim,
charge, encumbrance, title retention agreement, lessor's interest under a
Capital Lease or analogous instrument, in, of or on any property.
"Loans" shall mean, collectively, the Revolving Loans, the Swing Line
Loans, and the Competitive Bid Loans.
"Margin Regulations" shall mean Regulation G, Regulation T, Regulation
U and Regulation X of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time.
"Material" (or words derived therefrom) as used in this Agreement,
means the measure of a matter of significance which shall be determined as being
an amount equal to the greater of (i) Ten Million Dollars ($10,000,000) or (ii)
five percent (5%) of the Consolidated Net Worth.
"Materially Adverse Effect" shall mean any Material adverse change in
(i) the business, operations, financial condition or assets of the Consolidated
Companies, taken as a whole, (ii) the ability of Borrower to perform its
obligations under this Agreement, or (iii) the ability of the Consolidated
Companies (taken as a whole) to perform their respective obligations, if any,
under the Credit Documents.
"Maturity Date" shall mean the earlier of (i) January 21, 2002, and
(ii) 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 9.; provided, however, that the date listed in subsection (i) above
may be extended as provided in Section 2.5.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Services, Inc. and each of its
successors.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Sale Proceeds" means the aggregate cash proceeds received by any
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Consolidated Company in respect of any Equity Offering (including, without
limitation, any cash received upon the sale or other disposition of any noncash
consideration received in any Equity Offering), net of the direct costs relating
to such Equity Offering (including, without limitation, legal, accounting and
investment banking fees, printing, sales and distribution costs and expenses,
and sales commissions), taxes paid or payable as a result thereof.
"Notes" shall mean, collectively, the Revolving Credit Notes, the Swing
Line Note and the Competitive Bid Notes.
"Notice of Borrowing" shall have the meaning provided in Section
4.1.(a)(i).
"Notice of Conversion/Continuation of Swing Line Loans" shall have the
meaning provided in Section 4.1.(b)(ii).
"Notice of Conversion/Continuation" shall have the meaning provided in
Section 4.1.(b)(i).
"Notice of Swing Line Loan" shall have the meaning provided in Section
4.1.(a)(ii).
"Obligations" shall mean all amounts owing to the Agent or any Lender
pursuant to the terms of this Agreement or any other Credit Document, including,
without limitation, all Loans (including all principal and interest payments due
thereunder), fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Consolidated Companies, 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 with respect to payments of principal,
interest, fees or other amounts relating to the Revolving Loans, the Swing Line
Loans, the Competitive Bid Loans and all other Obligations, the office specified
as the "Payment Office" for the Agent and in the case of the Swing Line Loans,
the Swing Line Lender, on the signature page of the Agent and the Swing Line
Lender, or such other location as to which the Agent or the Swing Line Lender
shall have given written notice to the Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, trust, limited liability company, limited liability
partnership, or other entity, or any government or political subdivision or
agency, department or instrumentality thereof.
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"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.
"Prior Agreements" shall mean, collectively, (i) that certain Revolving
Credit Agreement dated as of January 15, 1995 by and between the Borrower and
SunTrust and (ii) that certain Revolving Credit Agreement dated as of January
15, 1995 by and between the Borrower and Wachovia Bank of Georgia, N.A.
"Purchase Agreement" means that certain Stock Purchase Agreement by and
among Borrower and the shareholders of the Acquired Company, dated as of January
21, 1997, as it may be amended on or prior to the Closing Date in accordance
with Section 5.1(h) hereof.
"Purchase Money Indebtedness" shall mean Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition cost of
any property (excluding trade payables incurred in the ordinary course of
business) and any refinancing thereof, in each case entered into in compliance
with this Agreement.
"Rating Agency" shall mean either Moody's or Standard & Poor's.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time.
"Required Lenders" shall mean at any time, the Lenders holding at least
66 2/3% of the amount of the Total Commitments, whether or not advanced or,
following the termination of all of the Commitments, the Lenders holding at
least 66 2/3% of the aggregate outstanding Advances at such time.
"Requirement of Law" for any Person shall mean 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.
"Restricted Investment" means all investments (in cash or by delivery
of property) made, directly or indirectly in any Person, whether by acquisition
of shares of capital stock, indebtedness or other obligations or securities or
by loan, advance, guaranty, capital contribution or otherwise (including,
without limitation, the net actual liability of such Person under an Interest
Rate Contract not entered into in respect of outstanding Funded Debt of such
Person); provided, however, that Restricted Investments shall not
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mean or include: (i) investments in property to be used or consumed in the
ordinary course of business, (ii) investments by the Borrower or its Restricted
Subsidiaries in and to Restricted Subsidiaries, including any investment in a
corporation which, after giving effect to such investment, will immediately
become a Restricted Subsidiary, (iii) investments in commercial paper or other
short-term security maturing in 270 days or less from the date of issuance,
which at the time of acquisition by the Borrower or its Subsidiary, is accorded
the rating of A-2 or better by Standard & Poor's or P-2 or better by Moody's,
(iv) investments in direct obligations of the United States of America or any
agency or instrumentality of the United States of America, the payment or
guarantee of which constitutes a full faith and credit obligation of the United
States of America, in either case maturing in three years or less from the date
of acquisition thereof, (v) loans or advances in the usual and ordinary course
of business to officers, directors and employees for expenses (including moving
expenses related to a transfer) incidental to carrying on the business of the
Borrower or any Restricted Subsidiary, (vi) receivables arising from the sale of
goods and services in the ordinary course of business of the Borrower and its
Restricted Subsidiaries, (vii) municipal bonds maturing in three (3) years or
less from the date of acquisition thereof and accorded either a long-term or
short-term rating no lower than the highest rating category by Standard & Poor's
or Moody's, (viii) variable rate preferred stock issued by United States or
United Kingdom corporations which are accorded a rating no lower than the third
highest rating category by Standard & Poor's or Moody's, (ix) variable rate
demand obligations, tax-free preferred stock of United States corporations and
other tax exempt investments which mature in three (3) years or less or have
variable rate features and are accorded a rating no lower than the third highest
rating category by Standard & Poor's or Moody's, (x) certificates of deposit of
or drafts accepted by a commercial bank (a) that is organized under the laws of
the United States of America or any state thereof, and (b) whose long-term
unsecured debt obligations (or the long-term debt obligations of the bank
holding company owning all of the capital stock of such bank) shall be rated A2
or better by Moody's or A or better by Standard & Poor's, and (c) that has
capital, surplus and undivided profits aggregating in excess of $100,000,000,
and (xi) the initial investments made by the Borrower and its Subsidiaries in
the Sonoco Joint Venture through the contribution of those assets forming a part
of their solid fiber partition business.
"Restricted Subsidiary" means (i) any Subsidiary of the Borrower
identified as such on Schedule I hereto, (ii) the Acquired Company and any
Subsidiaries it owns at the time of the closing of the transaction evidenced by
this Agreement, and (iii) any Subsidiary of the Borrower created or acquired
after the date of this Agreement other than a Subsidiary which, at the option of
the Borrower, is designated in writing by the Borrower to the Agent as being an
Unrestricted Subsidiary.
"Reuters Screen" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuter Monitor
Money Rates Service
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(or such other page as may replace that page on that service for the purpose of
displaying rates comparable to LIBOR).
"Revolving Credit Commitment" shall mean, at any time for any Lender,
the amount of such commitment set forth opposite such Lender's name on the
signature pages hereof, as the same may be increased or decreased from time to
time as a result of any reduction thereof pursuant to Section 2.3., any
assignment thereof pursuant to Section 11.6., or any amendment thereof pursuant
to Section 11.2.
"Revolving Credit Notes" shall mean, collectively, the promissory notes
evidencing the Revolving Loans in the form attached hereto as Exhibit A, either
as originally executed or as hereafter amended, modified or supplemented.
"Revolving Loans" shall mean, collectively, the revolving loans made to
the Borrower by the Lenders pursuant to Section 2.1.
"Security Documents" shall mean, collectively, each guaranty agreement,
mortgage, deed of trust, security agreement, pledge agreement, or other security
or collateral document, if any, guaranteeing or securing the Obligations, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"Sonoco Joint Venture" shall mean the Delaware limited liability
company to be formed by the Subsidiaries of the Borrower and Sonoco Products
Company, respectively, to engage in the solid fiber partition business
previously conducted separately by the Borrower and Sonoco Products Company.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a
division of ▇▇▇▇▇▇-▇▇▇▇, Inc. and its successors.
"Subsidiary" shall mean, with respect to any Person, any corporation or
other entity (including, without limitation, limited liability companies,
partnerships, joint ventures, limited liability companies, 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.
"Subsidiary Guarantee" shall mean a Subsidiary Guarantee substantially
in the form of Exhibit "M" executed and delivered by one or more Subsidiary
Guarantors in favor of the Agent, for the ratable benefit of the Lenders,
together with all amendments and supplements thereto.
"Subsidiary Guarantor" shall mean a Restricted Subsidiary which will
execute a Subsidiary Guarantee pursuant to Section 7.10.
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"Swing Line Commitment" shall mean, at any time for the Swing Line
Lender, an amount equal to the Swing Line Commitment set forth on the signature
page of the Swing Line Lender, as the same may be increased or decreased from
time to time as a result of any assignment thereof pursuant to Section 11.6., or
any amendment thereof pursuant to Section 11.2. The Swing Line Commitment shall
be part of, subsumed within, and not in addition to the Revolving Credit
Commitment of the Swing Line Lender until such Revolving Credit Commitment is
reduced to or below $90,000,000, at which time the Swing Line Commitment shall
become an independent Commitment hereunder in the amount specified in the
preceding sentence.
"Swing Line Facility" shall mean, at any time, the Swing Line
Commitment, which amount shall not exceed $20,000,000.
"Swing Line Lender" shall mean SunTrust and any successor or assignee
thereof.
"Swing Line Loans" shall mean, collectively, loans made by the Swing
Line Lender to the Borrower pursuant to the Swing Line Facility.
"Swing Line Note" shall mean a promissory note of the Borrower payable
to the order of the Swing Line Lender, in substantially the form of Exhibit C
hereto, evidencing the maximum aggregate principal indebtedness of the Borrower
to such Swing Line Lender with respect to the Swing Line Commitment, either as
originally executed or as it may be from time to time supplemented, modified,
amended, renewed or extended.
"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 or the Federal Funds Rate, 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 or the Federal
Funds Rate).
"Total Capitalization" shall mean for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the sum of their: (i) Funded Debt and (ii)
Consolidated Net Worth.
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"Total Commitments" shall mean the sum of the Revolving Credit
Commitments of all Lenders.
"Type" of Borrowing shall mean a Borrowing consisting of Base Rate
Advances, Eurodollar Advances, Competitive Bid Rate Advances, or Cost of Funds
Advances.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Borrower
that is not a Restricted Subsidiary.
"Voting Stock" shall mean stock of a corporation of a class or classes
having general voting power under ordinary circumstances to elect a majority of
the board of directors, managers or trustees of such corporation (irrespective
of whether or not at the time stock of any other class or classes shall have or
might have voting power by the reason of the happening of any contingency).
"Waldorf Credit Agreement" shall mean that certain Credit Agreement
dated as of July 5, 1995 among Waldorf Corporation, the banks party thereto and
The Chase Manhattan Bank, as administrative agent, as amended and supplemented
from time to time.
"Waldorf Indenture" shall mean the agreement pursuant to which the
Waldorf Debt is issued.
SECTION 1.2. 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. In the event of a change in GAAP that is applicable to the Borrower and
its Subsidiaries, compliance with the financial covenants contained herein shall
continue to be determined in accordance with GAAP as in effect prior to such
change; provided, however, that the Borrower and the Required Lenders will
thereafter negotiate in good faith to revise such covenants to the extent
necessary to conform such covenants to GAAP as then in effect.
SECTION 1.3. OTHER DEFINITIONAL TERMS.
The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
Schedule, Exhibit and like references are to this Agreement unless otherwise
specified.
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SECTION 1.4. EXHIBITS AND SCHEDULES.
All Exhibits and Schedules attached hereto are by reference made a part
hereof.
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ARTICLE 2. REVOLVING LOANS; COMPETITIVE BID LOANS
SECTION 2.1. COMMITMENT; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set forth, each
Lender severally agrees to make to Borrower from time to time on and after the
Closing Date, but prior to the Maturity Date, Revolving Loans; provided that,
immediately after each such Revolving Loan is made, (i) the aggregate principal
amount of all Advances comprising Revolving Loans made by such Lender shall not
exceed such Lender's Revolving Credit Commitment, and (ii) the aggregate
principal amount of all outstanding Revolving Loans plus the aggregate principal
amount of all Competitive Bid Rate Advances plus the aggregate principal amount
of all outstanding Swing Line Loans, shall not exceed the Total Commitments.
(b) Each Revolving Loan shall, at the option of Borrower, be made or
continued as, or converted into, part of one or more Borrowings that shall
consist entirely of Base Rate Advances or Eurodollar Advances. The aggregate
principal amount of each Borrowing of Revolving Loans comprised of Eurodollar
Advances shall be not less than $5,000,000 or a greater integral multiple of
$1,000,000, and the aggregate principal amount of each Borrowing of Revolving
Loans comprised of Base Rate Advances shall be not less than $1,000,000 or a
greater integral multiple of $100,000.
(c) The proceeds of Revolving Loans shall be used solely for the
following purposes:
(i) Initially, to repay the Indebtedness outstanding pursuant
to the Prior Agreements on the Closing Date; and
(ii) All other amounts shall be used by the Borrower and its
Subsidiaries for acquisitions, capital expenditures and as
working capital and for other general corporate purposes.
SECTION 2.2. REVOLVING CREDIT NOTES; REPAYMENT OF PRINCIPAL.
(a) The Borrower's 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 Borrowings outstanding under the Revolving Credit Commitments
shall be due and payable in full on the Maturity Date.
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SECTION 2.3. REDUCTION OF REVOLVING CREDIT AND SWING LINE COMMITMENTS;
MANDATORY PREPAYMENT.
(a) Upon at least three (3) Business Days' prior telephonic notice
(promptly confirmed in writing) to the Agent, Borrower shall have the right,
without premium or penalty, to terminate the Revolving Credit Commitments, in
part or in whole, provided that any partial termination of the Revolving Credit
Commitments pursuant to this Section 2.3. shall be in an amount of at least
$1,000,000 and integral multiples of $1,000,000.
(b) The Revolving Credit Commitments shall be automatically and
permanently reduced in connection with the consummation of any Equity Offering
by an amount equal to the lesser of (i) 100% of the Net Sale Proceeds received
by the Borrower in respect of any Equity Offering and (ii) an amount necessary
to reduce the Total Commitments to $300,000,000 (the "Reduction").
(c) Any reduction of Revolving Credit Commitments pursuant to
subsections (a) and (b) of this Section 2.3. shall apply to proportionately,
automatically and permanently reduce the Revolving Credit Commitments of each of
the Lenders based upon each Lender's Applicable Commitment Percentage.
(d) If at any time the aggregate outstanding Competitive Bid Loans,
Revolving Loans and, so long as the Swing Line Commitment is part of the Swing
Line Lender's Revolving Credit Commitment, Swing Line Loans exceed the Total
Commitments, the Borrower shall immediately cause an amount equal to such excess
to be applied as follows in the order of priority indicated:
First, so long as the Swing Line Commitment is part of the
Swing Line Lender's Revolving Credit Commitment, to the prepayment of
outstanding Swing Line Loans;
Second, to the prepayment of outstanding Revolving Loans; and
Third, to the prepayment of outstanding Competitive Bid Loans,
such prepayment to be applied to such Loans as designated by the
Borrower and, in the event the Borrower fails to designate a Loan, to such Loans
with the earliest maturity dates, based upon the remaining terms of their
respective Interest Periods, and with respect to Loans with the same Interest
Period, pro rata to the Lenders extending such Loans.
Any prepayment of Swing Line Loans, Revolving Loans and Competitive Bid Loans
pursuant to this Section 2.3. shall be made, insofar as is possible, in such a
way as to avoid any funding losses pursuant to Section 4.13.
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SECTION 2.4. CHANGE IN CONTROL OF THE BORROWER.
If (i) any Change in Control occurs hereunder or (ii) any event or
condition shall occur or exist which, pursuant to the terms of any Change in
Control Provision (other than a Change in Control Provision in the Waldorf
Indenture and the Waldorf Credit Agreement) requires or permits the holder(s) of
the Indebtedness subject to such Change in Control Provision 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,
then, upon the occurrence of the events described in (i) or (ii) above, the
Borrower shall provide notice of the occurrence thereof to the Agent and the
Lenders promptly after such occurrence and, on the ninetieth (90th) day after
such occurrence, unless the Lenders shall have elected otherwise (such election
to be made in their sole and absolute discretion), there shall be an automatic
reduction of the Revolving Credit Commitments and the Swing Line Commitments and
the Borrower shall repay in full all outstanding Loans, together with all
accrued and unpaid interest thereon and Facility Fees due hereunder, and all
other amounts owing to the Lenders hereunder.
SECTION 2.5. EXTENSION OF COMMITMENTS.
(a) The Borrower may, by written notice to the Agent (which shall
promptly deliver a copy to each of the Lenders), given not more than sixty (60)
days nor less than thirty (30) days prior to any anniversary of the Closing Date
while the Revolving Credit Commitments are in effect, request that the Lenders
extend the then scheduled Maturity Date (the "Existing Date") for an additional
one-year period. Each Lender shall, by notice to the Borrower and the Agent
given within fifteen (15) Business Days after the Borrower gives such notice,
advise the Borrower and the Agent whether or not such Lender consents to the
extension request (and any Lender which does not respond during such
15-Business-Day period shall be deemed to have advised the Borrower that it will
not agree to such extension).
(b) In the event that, on the 15th Business Day after Borrower gives
the notice described in subsection (a) above, not all of the Lenders shall have
agreed to extend their Revolving Credit Commitments, the Borrower shall notify
each of the consenting Lenders ("Consenting Lenders") of the amount of the
Revolving Credit Commitments of the non-extending Lenders ("Non-Consenting
Lenders") and each of such Consenting Lenders shall, by notice to the Borrower
and the Agent given within ten (10) Business Days after receipt of such notice,
advise the Agent and Borrower whether or not such Lender wishes to purchase all
or a portion of the Revolving Credit Commitments of the Non-Consenting Lenders
(and any Lender which does not respond during such 10-Business-Day period shall
be deemed to have rejected such offer). In the event that more than one
Consenting Lender agrees to purchase all or a portion of such Revolving Credit
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Commitments, the Borrower and the Agent shall allocate such Revolving Credit
Commitments among such Consenting Lenders so as to preserve, to the extent
possible, the relative pro rata shares of the Consenting Lenders of the
Revolving Credit Commitments prior to such extension request. If Consenting
Lenders do not elect to assume all of the Revolving Credit Commitments of the
Non-Consenting Lenders, the Borrower shall have the right to arrange for one or
more banks or other lending institutions (any such bank or lending institution
being called a "New Lender"), to purchase the Revolving Credit Commitment of any
Non-Consenting Lender. Each Non-Consenting Lender shall assign its Revolving
Credit Commitment and the Loans outstanding hereunder to the Consenting Lender
or New Lender purchasing such Revolving Credit Commitment in accordance with
Section 11.6., in return for payment in full of all principal, interest and
other amounts owing to such Non-Consenting Lender hereunder, on or before the
Existing Date and, as of the effective date of such assignment, shall no longer
be a party hereto, provided that each New Lender shall be subject to the
approval of the Agent (which approval shall not be unreasonably withheld). If
(and only if) Lenders (including New Lenders) holding Revolving Credit
Commitments representing at least 60% of the aggregate Revolving Credit
Commitments on the date of such extension request shall have agreed in
accordance with the terms hereof to such extension (the "Continuing Lenders"),
then (i) the Maturity Date shall be extended for one additional year from the
Existing Date and (ii) the Commitment of any Non-Consenting Lender which has not
been assigned to a Consenting Lender or a New Lender shall terminate (with the
result that the amount of the Total Commitments shall be decreased by the amount
of such Revolving Credit Commitment), and all Loans of such Non-Consenting
Lender shall become due and payable, together with all interest accrued thereon
and all other amounts owed to such Non-Consenting Lender hereunder, on the
Existing Date applicable to such Lender without giving effect to any extension
of the Maturity Date.
(c) The effective date of any extension of the Maturity Date shall be
the date on which 60% of the Continuing Lenders have agreed to such extension in
accordance with the terms of Section 2.5(b).
(d) The extension by the Swing Line Lender of its Revolving Credit
Commitment pursuant to this Section 2.5. shall automatically extend the Swing
Line Commitment.
SECTION 2.6. COMPETITIVE BID LOANS
(a) In addition to making Revolving Loans pursuant to the Revolving
Credit Commitments pursuant to Section 2.1. above, the Lenders may, in their
sole discretion and at the request of the Borrower, make Competitive Bid Rate
Advances to the Borrower in an amount not to exceed the Available Revolving
Credit Commitment.
(b) In order to request Competitive Bids, the Borrower shall telecopy
to the
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Agent a duly completed Competitive Bid Request in the form of Exhibit E
attached hereto (which may request not more than two Competitive Bids), to be
received by the Agent not later than 10:00 a.m. (Atlanta, Georgia) time, four
(4) Business Days prior to the proposed Competitive Bid Loan or Loans. A
Competitive Bid Request that does not conform substantially to the format of
Exhibit E may be rejected in the Agent's sole discretion, and the Agent shall
notify the Borrower of such rejection by telecopy not later than 12:00 noon
(Atlanta, Georgia time) on the date of receipt. Such request shall in each case
refer to this Agreement and specify (i) the date of such Borrowing or Borrowings
(which shall be a Business Day) and (ii) the aggregate principal amount thereof
which shall be in a minimum principal amount of $5,000,000 and in an integral
multiple of $1,000,000, and (iii) the Interest Period requested with respect
thereto. Promptly after its receipt of a Competitive Bid Request that is not
rejected as aforesaid, the Agent shall invite by telecopy (substantially in the
form set forth in Exhibit F attached hereto) the Lenders to bid, subject to the
terms and conditions of this Agreement, to make Competitive Bid Rate Advances
pursuant to the Competitive Bid Request.
(c) Each Lender may, in its sole discretion, make one or more
Competitive Bids (but not more than two) to the Borrower responsive to a
Competitive Bid Request. Each Competitive Bid by a Lender must be received by
the Agent via telecopy, substantially in the form of Exhibit G attached hereto,
not later than 11:00 a.m. (Atlanta, Georgia time) on the Business Day of the
proposed Competitive Bid Loan. Multiple bids (not to exceed two per Lender) will
be accepted by the Agent. Competitive Bids that do not conform substantially to
the format of Exhibit G may be rejected by the Agent acting in consultation with
the Borrower, and the Agent shall notify the Lender making such nonconforming
bid of such rejection as soon as practicable. Each Competitive Bid shall refer
to this Agreement and specify (i) the principal amount (which shall be in a
minimum principal amount of $5,000,000 and in an integral multiple of
$1,000,000) of the Competitive Bid Rate Advance or Advances that the Lender is
willing to make to the Borrower, (ii) the Competitive Bid Rate or Rates at which
the Lender is prepared to make the Competitive Bid Rate Advance or Advances, and
(iii) the Interest Period and the last day thereof. If any Lender shall elect
not to make a Competitive Bid, such Lender shall so notify the Agent via
telecopy by the time specified above for submitting a Competitive Bid; provided,
however, that failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any Competitive Bid Rate Advance as part of such
Competitive Bid Loan. A Competitive Bid submitted by a Lender pursuant to this
paragraph (c) shall be irrevocable (absent manifest error).
(d) The Agent shall promptly notify the Borrower by telecopy of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount of each
Competitive Bid Rate Advance in respect of which a Competitive Bid was made and
the identity of the Lender that made each bid. The Agent shall send a copy of
all Competitive Bids to the Borrower for its records as soon as practicable
after completion
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of the bidding process set forth in this Section 2.6.
(e) The Borrower may, in its sole and absolute discretion, subject only
to the provisions of this paragraph (e), accept or reject any Competitive Bid
referred to in paragraph (d) above. The Borrower shall notify the Agent by
telephone, confirmed by telecopy in the form of a Competitive Bid Accept/Reject
Letter, whether and to what extent it has decided to accept or reject any of or
all the bids referred to in paragraph (d) above not later than 12:30 p.m.
(Atlanta, Georgia time) on the Business Day of the proposed Competitive Bid
Loan; provided, however, that (i) the failure by the Borrower to give such
notice shall be deemed to be a rejection of all the bids referred to in
paragraph (d) above, (ii) the Borrower shall not accept a bid made at a
particular Competitive Bid Rate if the Borrower has decided to reject a bid made
at a lower Competitive Bid Rate with respect to the same requested Advance,
(iii) the aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the principal amount specified in the Competitive Bid Request,
(iv) if the Borrower shall accept a bid or bids made at a particular Competitive
Bid Rate but the amount of such bid or bids shall cause the total amount of bids
to be accepted by the Borrower to exceed the amount specified in the Competitive
Bid Request, then the Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with respect to such Competitive
Bid Request, which acceptance, in the case of multiple bids at the same
Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such bid at such Competitive Bid Rate, and (v) except pursuant to clause
(iv) above, no bid shall be accepted for a Competitive Bid Loan unless such
Competitive Bid Loan is in a minimum principal amount of $5,000,000 and an
integral multiple of $1,000,000; provided further, however, that if a
Competitive Bid Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Bid Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to
integral multiples of $1,000,000 in a manner which shall be in the discretion of
the Borrower. A notice given by the Borrower pursuant to this paragraph (e)
shall be irrevocable.
(f) The Agent shall promptly notify each bidding Lender whether or not
its Competitive Bid has been accepted (and if so, in what amount and at what
Competitive Bid Rate) by telecopy sent by the Agent, and each successful bidder
will thereupon become bound, subject to the other applicable conditions hereof,
to make the Competitive Bid Loan in respect of which its bid has been accepted.
(g) A Competitive Bid Request shall not be made within five (5)
Business Days after the date of any previous Competitive Bid Request.
(h) If the Agent shall elect to submit a Competitive Bid in its
capacity as a
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Lender, it shall submit such bid directly to the Borrower one half of an hour
earlier than the time at which the other Lenders are required to submit their
bids to the Agent pursuant to paragraph (c) above.
(i) Each Lender participating in any Competitive Bid Loan shall make
its Competitive Bid Rate Advance available to the Agent on the date specified in
the Bid Request at the time and in the manner and subject to the provisions
specified in Section 4.2..
(j) The proceeds of each of the Competitive Bid Loans shall be used by
the Borrower and its Subsidiaries for acquisitions, capital expenditures and as
working capital and for other general corporate purposes.
SECTION 2.7. COMPETITIVE BID NOTES; REPAYMENT OF PRINCIPAL.
(a) The Borrower's obligations to pay the principal of, and interest
on, the Competitive Bid Loans to each Lender shall be evidenced by the records
of the Agent and such Lender and by the Competitive Bid Note payable to such
Lender (or the assignor of such Lender) completed in conformity with this
Agreement.
(b) A Competitive Bid Loan shall be due and payable in full on the
earlier of (i) the expiration of the applicable Interest Period or (ii) the
Maturity Date.
SECTION 2.8. LIMITATION ON THE AMOUNT OF BID LOANS.
The aggregate outstanding principal amount of all Revolving Loans, all
Swing Line Loans and all Competitive Bid Loans at any time shall not exceed the
Total Commitments at such time.
SECTION 2.9. PRO RATA PAYMENTS.
Except as otherwise provided herein, (a) each payment on account of the
principal of and interest on the Revolving Loans and fees (other than the fees
payable under the Fee Letter, which shall be retained by the Agent) described in
this Agreement shall be made to the Agent for the account of the Lenders pro
rata based on their Applicable Commitment Percentages, (b) each payment on
account of principal of and interest on a Competitive Bid Loan shall be made to
the Agent for the account of the Lender making such Competitive Bid Loan, (c)
all payments to be made by the Borrower for the account of each of the Lenders
on account of principal, interest and fees, shall be made without set-off or
counterclaim, and (d) the Agent will promptly distribute payments received by it
to the Lenders. If a payment is received by the Agent before 10:00 a.m.,
Atlanta, Georgia time on a Business Day, the Agent shall distribute each
Lender's share of the payment to such Lender before 2:00 p.m., Atlanta, Georgia
time on the same day; or if a payment is received by the Agent after 10:00 a.m.
Atlanta, Georgia time on a Business
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Day or is received on a day other than a Business Day, the Agent shall
distribute each Lender's share of the payment to such Lender before 2:00 p.m.,
Atlanta, Georgia time on the next Business Day. If, for any reason, the Agent
makes any distribution to any Lender prior to receiving the corresponding
payment from the Borrower, and the Borrower's payment is not received by the
Agent within three Business Days after payment by the Agent to the Lender, the
Lender will, upon written request from the Agent, return the payment to the
Agent with interest at the interest rate per annum for overnight borrowing by
the Agent from the Federal Reserve Bank for the period commencing on the date
the Lender received such payment and ending on, but excluding, the date of its
repayment to the Agent. If the Agent advises any Lender of any miscalculation of
the amount of such Lender's share that has resulted in an excess payment to such
Lender, promptly upon request by the Agent such Lender shall return the excess
amount to the Agent with interest calculated as set forth above. Similarly, if a
Lender advises the Agent of any miscalculation that has resulted in an
insufficient payment to such Lender, promptly upon written request by such
Lender the Agent shall pay the additional amount to such Lender with interest
calculated as set forth above. In the event the Agent is required to return any
amount of principal, interest or fees or other sums received by the Agent after
the Agent has paid over to any Lender its share of such amount, such Lender
shall, promptly upon demand by the Agent, return to the Agent such share,
together with applicable interest on such share.
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ARTICLE 3. SWING LINE FACILITY
SECTION 3.1. SWING LINE FACILITY; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set forth, the
Swing Line Lender, from on and after the Closing Date, but prior to the Maturity
Date, hereby agrees to make available to the Borrower from time to time, Swing
Line Loans which shall not exceed in aggregate principal amount at any time
outstanding the Swing Line Commitment.
(b) Amount and Terms of Swing Line Loans. Each Swing Line Loan shall,
at the option of Borrower, be made or continued as, or converted into, Base Rate
Advances, Eurodollar Advances or, to the extent available, Cost of Funds
Advances. The aggregate principal amount of each Swing Line Loan comprised of
Eurodollar Advances shall be not less than $500,000 or a greater integral
multiple of $100,000, and the aggregate principal amount of each Swing Line Loan
comprised of Base Rate Advances or Cost of Funds Advances shall be not less than
$500,000 or greater integral multiples of $100,000.
(c) Use of Proceeds. The proceeds of Swing Line Loans shall be used by
the Borrower and its Subsidiaries for acquisitions, capital expenditures and as
working capital and for other general corporate purposes.
(d) Notification of Availability of Cost of Funds Advance and Cost of
Funds Rate. The Swing Line Lender shall have no obligation to make a Cost of
Funds Advance. If the Swing Line Lender elects to make a Cost of Funds Advance,
it shall notify the Borrower thereof and of the Cost of Funds Rate being offered
prior to 11:00 a.m. (Atlanta time) on the Business Day of such requested
Advance. If the Borrower does not notify the Swing Line Lender of its acceptance
of such Cost of Funds Advance prior to 12:00 noon (Atlanta time) on the date of
such requested Advance, the Borrower will be deemed to have rejected the same.
(e) Swing Line Lender. If the existing Swing Line Lender (the "Existing
Swing Line Lender") is unable or unwilling to make Cost of Funds Advances to the
Borrower, the Borrower may, upon the satisfaction of the following conditions,
designate a new Swing Line Lender to replace the Existing Swing Line Lender:
(i) the Borrower shall provide written notice to the Agent and
the Lenders, including the Existing Swing Line Lender, of its intention to
proceed under this paragraph (e), which notice shall include (i) the identity of
the lending institution selected by the Borrower to be the new Swing Line Lender
(the "New Swing Line Lender") and (ii) the date upon which the Borrower intends
to effect the replacement of the Existing Swing Line Lender (the "Swing Line
Lender Replacement Date"); and
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(ii) the Borrower shall, on or prior to the Swing Line Lender
Replacement Date, repay in full all outstanding Swing Line Loans, together with
all accrued and unpaid interest thereon, and all other amounts owing to the
Existing Swing Line Lender hereunder relating to its Swing Line Loans.
Upon the satisfaction of the foregoing conditions and upon the consummation of
the amendment to this Agreement referred to in the next sentence, (x) the Swing
Line Commitment shall terminate as to the Existing Swing Line Lender; (y) the
Existing Swing Line Lender shall cancel the outstanding Swing Line Note and
return it to the Borrower and (z) the New Swing Line Lender shall replace and
become vested with all the rights, powers, privileges and duties of the existing
Swing Line Lender under this Agreement. Before the new Swing Line Commitment can
become effective, it will be necessary to amend the provisions of this Agreement
relating to the relationship of the Swing Line Commitment to the Revolving
Credit Commitment of the Existing Swing Line Lender as well as Sections 2.3. and
2.4. The Lenders and the Borrower covenant and agree to negotiate such amendment
in good faith.
SECTION 3.2. SWING LINE NOTE; REPAYMENT OF PRINCIPAL.
(a) The Borrower's obligations to pay the principal of, and interest
on, the Swing Line Loans to the Swing Line Lender shall be evidenced by the
records of the Swing Line Lender and by the Swing Line Note payable to the Swing
Line Lender in the amount of the Swing Line Facility.
(b) All Borrowings outstanding under the Swing Line Note shall be due
and payable in full on the earlier of (i) the expiration of the applicable
Interest Period or (ii) on the Maturity Date.
SECTION 3.3. VOLUNTARY REDUCTION OF SWING LINE COMMITMENT
Upon at least three (3) Business Days' prior telephonic notice
(promptly confirmed in writing) to SunTrust and the Agent, Borrower shall have
the right, without premium or penalty, to terminate the unutilized portion of
the Swing Line Commitment, in part or in whole, provided that any partial
termination pursuant to this Section 3.3. shall be in an amount of at least
$1,000,000 and integral multiples of $100,000.
SECTION 3.4. REFUNDING SWING LINE LOANS WITH PROCEEDS OF MANDATORY
REVOLVING LOANS.
If (i) any Swing Line Loan shall be outstanding upon the occurrence of
an Event of Default, or (ii) after giving effect to any request for a Swing Line
Loan or a Revolving Loan, the aggregate principal amount of the Revolving Loans
and Swing Line Loans outstanding to the Swing Line Lender would exceed the Swing
Line Lender's Revolving
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Credit Commitment, then each Lender hereby agrees, upon request from the Swing
Line Lender, to make a Revolving Loan (which shall be initially funded as a Base
Rate Advance) in an amount equal to such Lender's Applicable Commitment
Percentage of the outstanding principal amount of the Swing Line Loans (the
"Refunded Swing Line Loans") outstanding on the date such notice is given. On or
before 11:00 a.m. (local time for the Agent) on the first Business Day following
receipt by each Lender of a request to make Revolving Loans as provided in the
preceding sentence, each such Lender (other than the Swing Line Lender) shall
deposit in an account specified by the Agent to the Lenders from time to time
the amount so requested in same day funds, whereupon such funds shall be
immediately delivered to the Swing Line Lender (and not the Borrower) and
applied to repay the Refunded Swing Line Loans. On the day such Revolving Loans
are made, the Swing Line Lender's pro rata share of the Refunded Swing Line
Loans shall be deemed to be paid with the proceeds of the Revolving Loans made
by the Swing Line Lender. Upon the making of any Revolving Loan pursuant to this
clause, the amount so funded shall become due under such Lender's Revolving
Credit Note and shall no longer be owed under the Swing Line Note. Each Lender's
obligation to make the Revolving Loans referred to in this clause shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default or Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any other Consolidated
Company; (iv) the acceleration or maturity of any Loans or the termination of
the Revolving Credit Commitments after the making of any Swing Line Loan;
(v) any breach of this Agreement by the Borrower or any other Lender; or
(vi) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
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ARTICLE 4. GENERAL LOAN TERMS
SECTION 4.1. FUNDING NOTICES.
(a) (i) Whenever Borrower desires to make a Borrowing of Revolving
Loans with respect to the Revolving Credit Commitments (other than one resulting
from a conversion or continuation pursuant to Section 4.1.(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 at Agent's Payment Office (x) prior to 11:00 A.M. (local time for
the Agent) on the Business Day which is the requested date of such Borrowing in
the case of Base Rate Advances, and (y) prior to 12:00 noon (local time for the
Agent) three Business Days prior to the requested date of such Borrowing in the
case of Eurodollar Advances. Notices received after 12:00 noon 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 Eurodollar Advances and (in the case of
Eurodollar Advances) the Interest Period to be applicable thereto.
(ii) Whenever Borrower desires to obtain a Swing Line Loan under
the Swing Line Facility (other than one resulting from a conversion or
continuation pursuant to Section 4.1.(b)), it shall give the Swing Line Lender
prior written notice (or telephonic notice promptly confirmed in writing) of
such Swing Line Loan (a "Notice of Swing Line Loan"), such Notice of Swing Line
Loan to be given at its Payment Office (x) prior to 12:00 Noon (local time for
the Swing Line Lender) on the Business Day which is the requested date of such
Swing Line Loan in the case of Base Rate Advances, (y) prior to 10:00 a.m.
(local time for the Swing Line Lender) on the Business Day which is the
requested date of such Swing Line Loan in the case of Cost of Funds Advances,
and (y) prior to 12:00 noon (local time for the Swing Line Lender) two Business
Days prior to the requested date of such Swing Line Loan in the case of
Eurodollar Advances. Notices received after 12:00 noon shall be deemed received
on the next Business Day. Each Notice of Swing Line Loan shall be irrevocable
and shall specify the aggregate principal amount of the Swing Line Loan, the
date of Swing Line Loan (which shall be a Business Day), and whether the Swing
Line Loan is to consist of Base Rate Advances, Cost of Funds Advances or
Eurodollar Advances and (in the case of Eurodollar Advances and Cost of Funds
Advances) the Interest Period to be applicable thereto.
(iii) Whenever Borrower desires to receive Competitive Bids, it
shall follow the procedure set forth in Section 2.6.
(b) (i) Whenever Borrower desires to convert all or a portion of an
outstanding Borrowing under the Revolving Credit Commitments consisting of Base
Rate Advances into a Borrowing consisting of Eurodollar Advances, or to continue
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outstanding a Borrowing consisting of Eurodollar Advances for a new Interest
Period, it shall give the Agent at least three Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) of each such
Borrowing to be converted into or continued as Eurodollar Advances. Such notice
(a "Notice of Conversion/Continuation") shall be given prior to 12:00 noon
(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 and the Interest Period
to be applicable thereto. If, upon the expiration of any Interest Period in
respect of any Borrowing consisting of Eurodollar Advances, Borrower shall have
failed to deliver the Notice of Conversion/Continuation, Borrower shall be
deemed to have elected to convert or continue such Borrowing to a Borrowing
consisting of Base Rate Advances. So long as any Executive Officer of Borrower
has knowledge that any Default or Event of Default shall have occurred and be
continuing, no Borrowing may be converted into or continued as (upon expiration
of the current Interest Period) Eurodollar Advances unless the Agent and each of
the Lenders shall have otherwise consented in writing. No conversion of any
Borrowing of Eurodollar Advances shall be permitted except on the last day of
the Interest Period in respect thereof.
(ii) Whenever Borrower desires to convert all or a portion of
an outstanding Swing Line Loan consisting of Base Rate Advances into a Swing
Line Loan consisting of Eurodollar Advances or Cost of Funds Advances, or to
continue outstanding a Swing Line Loan consisting of Eurodollar Advances or Cost
of Funds Advances for a new Interest Period, it shall give the Swing Line Lender
prior written notice (or telephonic notice promptly confirmed in writing) of
each such Swing Line Loan to be converted into or continued as Eurodollar
Advances or Cost of Funds Advances, such notice to be given at least two
Business Days in advance thereof, in the case of Eurodollar Advances, or on the
same day, in the case of Cost of Funds Advances. Such notice (a "Notice of
Conversion/Continuation of Swing Line Loans") shall be given prior to 12:00 noon
in the case of Eurodollar Advances, or 10:00 a.m. in the case of Cost of Funds
Advances (local time for the Swing Line Lender) on the date specified at the
Payment Office of the Swing Line Lender. Each such Notice of
Conversion/Continuation of Swing Line Loans 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 and the Interest Period
to be applicable thereto. If, upon the expiration of any Interest Period in
respect of any Swing Line Loan consisting of Eurodollar Advances or Cost of
Funds Advances, Borrower shall have failed to deliver the Notice of
Conversion/Continuation of Swing Line Loans, Borrower shall be deemed to have
elected to convert or continue such Swing Line Loan to a Swing Line Loan
consisting of Base Rate Advances. So long as any Executive Officer of Borrower
has knowledge that any Default or Event of Default shall have occurred and be
continuing, no Swing Line Loan may be converted into or continued as (upon
expiration of the current Interest
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Period) Eurodollar Advances or Cost of Funds Advances unless the Swing Line
Lender shall have otherwise consented in writing. No continuation or conversion
of any Swing Line Loan of Eurodollar Advances or Cost of Funds Advances shall be
permitted except on the last day of the Interest Period in respect thereof.
(c) Without in any way limiting Borrower's obligation to confirm in
writing any telephonic notice, the Agent and the Swing Line Lender may act
without liability upon the basis of telephonic notice believed by the Agent or
the Swing Line Lender, as the case may be, in good faith to be from Borrower
prior to receipt of written confirmation. In each such case, Borrower hereby
waives the right to dispute the Agent's or the Swing Line Lender's, as the case
may be, record of the terms of such telephonic notice.
(d) The Agent shall promptly (and in any event by the same time on the
next succeeding Business Day as such notice is received) 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 4.1. with respect to the Revolving Credit Commitments.
SECTION 4.2. DISBURSEMENT OF FUNDS.
(a) No later than 12:00 noon (local time for the Agent) in the case of
a Borrowing consisting of Eurodollar Advances and no later than 2:00 p.m. (local
time for the Agent) in the case of a Borrowing consisting of Base Rate Advances
on the date of each Borrowing pursuant to the Revolving Credit Commitments
(other than one resulting from a conversion or continuation pursuant to Section
4.1.(b)(i)), each Lender will make available its Applicable Commitment
Percentage of the amount of such Borrowing in immediately available funds at the
Payment Office of the Agent. The Agent will make available to Borrower 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 Borrower's demand deposit
account maintained with the Agent or at Borrower's option, by effecting a wire
transfer of such amounts to Borrower's account specified by the Borrower, by the
close of business on such Business Day. In the event that the Lenders do not
make such amounts available to the Agent by the time prescribed above, but such
amount is received later that day, such amount may be credited to Borrower in
the manner described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business Day).
(b) No later than 2:00 p.m. (local time for the Swing Line Lender) on
the date of each Swing Line Loan, the Swing Line Lender shall make available to
Borrower the requested Swing Line Loan by crediting such amounts to Borrower's
demand deposit account maintained with the Agent or at Borrower's option, by
effecting a wire transfer of such amounts to Borrower's account specified by the
Borrower, by the close of business
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on such Business Day.
(c) No later than 3:00 p.m. (local time for the Agent) on the date of
each Competitive Bid Loan, each Lender participating in such Competitive Bid
Loan will make available its pro rata share of the amount of such Competitive
Bid Loan in immediately available funds at the Payment Office of the Agent. The
Agent will make available to Borrower the aggregate of the amounts (if any) so
made available by the Lenders to the Agent in a timely manner by crediting such
amount to Borrower's demand deposit account maintained with the Agent or at the
Borrower's option by effecting a wire transfer of such amounts to Borrower's
account specified by the Borrower by the close of business on such Business Day.
In the event that Lenders do not make such amounts available to the Agent by the
time prescribed above but such amount is received later that day, such amount
may be credited to the Borrower in the manner described in the preceding
sentence on the next Business Day (with interest on such amount to begin
accruing hereunder on such next Business Day).
(d) 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 has made such amount available to the Agent on
such date and the Agent may make available to Borrower 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
Borrower, and Borrower 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 4.13. hereof.
Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Commitments hereunder or to prejudice any rights which
Borrower may have against any Lender as a result of any default by such Lender
hereunder.
(e) All Borrowings under the Revolving Credit Commitments shall be
loaned by the Lenders on the basis of their Applicable Commitment Percentage on
the date of such Borrowing. No Lender shall be responsible for any default by
any other Lender in its obligations hereunder, and each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to fund its Commitment hereunder.
SECTION 4.3. INTEREST.
(a) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Revolving Loans from the respective dates such principal amounts
were advanced
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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 in effect from time to time;
and
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate plus the
Applicable Margin.
(b) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Swing Line Loans made to Borrower 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 in effect on each day that
the Swing Line Loan is outstanding;
(ii) For Eurodollar Advances--The relevant Adjusted LIBO Rate plus the
Applicable Margin; and
(iii) For Cost of Funds Advances--The relevant Cost of Funds Rate plus
the Applicable Margin.
(c) Borrower agrees to pay interest in respect of all unpaid principal
amounts of the Competitive Bid Loans made to Borrower from the respective dates
such principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at the Competitive Bid Rate or Rates agreed
to by the Borrower and the Lender(s) participating therein for each Competitive
Bid Loan.
(d) Overdue principal and, to the extent not prohibited by applicable
law, overdue interest, in respect of the Revolving Loans, Swing Line Loans and
Competitive Bid Loans, and all other overdue amounts owing hereunder, shall bear
interest from each date that such amounts are overdue:
(i) in the case of overdue principal and interest with respect to all
Loans outstanding as Eurodollar Advances, at the greater of (A)
the rate otherwise applicable for the then-current Interest Period
plus an additional two percent (2.0%) per annum or (B) the rate in
effect for Base Rate Advances plus an additional two percent
(2.0%) per annum; and
(ii) in the case of overdue principal and interest with respect to all
other Loans outstanding as Base Rate Advances, or Cost of Funds
Advances or Competitive Bid Rate Advances, and all other
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Obligations hereunder (other than Loans), at a rate equal to the
Base Rate plus an additional two percent (2.0%) per annum.
(e) Interest on each Loan shall accrue from and including the date of
such Loan to but excluding the date of any repayment thereof; provided that, if
a Loan is repaid on the same day made, one day's interest shall be paid on such
Loan. Interest on all outstanding Base Rate Advances shall be payable quarterly
in arrears on the last day of each calendar quarter, commencing on March 31,
1997. Interest on all outstanding Eurodollar Advances and Competitive Bid Rate
Advances shall be payable on the last day of each Interest Period applicable
thereto, and, in the case of Eurodollar Advances and Competitive Bid Rate
Advances having an Interest Period in excess of three months, on each three
month anniversary of the initial date of such Interest Period. Interest on all
outstanding Cost of Funds Advances shall be payable monthly in arrears on the
last day of each Interest Period applicable thereto. Interest on all Loans shall
be payable on any conversion of any Advances comprising such Loans into Advances
of another Type (other than in connection with the conversion from a Base Rate
Loan), prepayment (on the amount prepaid), at maturity (whether by acceleration,
notice of prepayment or otherwise) and, after maturity, on demand.
(f) The Agent shall promptly notify the Borrower and the other Lenders
by telephone (confirmed in writing) or in writing, upon determining the Adjusted
LIBO Rate for any Interest Period. Any such determination shall, absent manifest
error, be final, conclusive and binding for all purposes.
SECTION 4.4. INTEREST PERIODS; MAXIMUM NUMBER OF BORROWINGS.
(a) In connection with the making or continuation of, or conversion
into, each Borrowing of Eurodollar Advances, Borrower shall select an Interest
Period to be applicable to such Eurodollar Advances, which Interest Period shall
be either a 1, 2, 3 or 6 month period.
(b) In connection with the submission of each Competitive Bid Request,
the Borrower may select an Interest Period to be applicable to such Competitive
Bid Loan not to exceed 24 months.
(c) In connection with the submission of each request for a Cost of
Funds Advance, the Borrower may select an Interest Period to be applicable to
such Cost of Funds Advance not to exceed 30 days.
(d) Notwithstanding paragraphs (a), (b) and (c) of this Section 4.4.:
(i) The initial Interest Period for any Borrowing of Eurodollar
Advances, Cost of Funds Advances or Competitive Bid Rate
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Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing
consisting of Base Rate Advances) and each Interest Period
occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest
Period expires;
(ii) If any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, provided that if any
Interest Period in respect of Eurodollar Advances would
otherwise expire on a day that is not a Business Day but is a
day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next
preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar Advances which
begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period shall, subject to part (iv) below, expire on
the last Business Day of such calendar month; and
(iv) No Interest Period with respect to the Loans shall extend
beyond the Maturity Date.
(e) At no time shall the combined number of Borrowings
outstanding under Articles 2. and 3. exceed eight (8); provided that, for the
purpose of determining the number of Borrowings outstanding and the minimum
amount for Borrowings resulting from conversions or continuations, all Swing
Line Loans comprised of Base Rate Advances shall be considered as one
Borrowing, all Swing Line Loans comprised of Cost of Funds Advances shall be
considered as one Borrowing, and all Revolving Loans comprised of Base Rate
Advances shall be considered as one Borrowing; further provided that, at no
time shall more than two (2) Swing Line Loans consisting of Eurodollar Advances
be outstanding.
SECTION 4.5. FEES.
(a) Borrower shall pay to the Agent, for the ratable benefit of
each Lender based upon its respective Applicable Commitment Percentage of the
Total Commitments, a facility fee (the "Facility Fee") for the period
commencing on the Closing Date to and including the Maturity Date, payable
quarterly in arrears on the last day of each calendar quarter, commencing on
March 31, 1997, and on the Maturity Date, equal to the Facility Fee Percentage
multiplied by the average daily amount of the Revolving Credit Commitments,
whether or not utilized.
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(b) Borrower shall pay to the Agent the amounts and on the dates agreed
to in the Fee Letter.
SECTION 4.6. EFFECTIVE DATE FOR ADJUSTMENT TO FACILITY FEE PERCENTAGE
AND APPLICABLE MARGIN.
The Facility Fee Percentage and Applicable Margin (collectively
"Applicable Percentages" shall be determined and adjusted quarterly on the date
by which the Borrower is required to provide the officer's certificate in
accordance with the provisions of Section 7.7.(d) (each a "Calculation Date");
provided, however that (i) the initial Applicable Percentages shall assume that
the Ratio of Consolidated Funded Debt to Total Capitalization shall be 60% and
shall remain at such level until the first Calculation Date subsequent to
December 31, 1996, and, thereafter, such level shall be determined by the then
current Ratio of Consolidated Funded Debt to Total Capitalization, and (ii) if
the Borrower fails to provide the officer's certificate to the Agent by each
Calculation Date, the Applicable Percentages from such Calculation Date shall be
based on maximum percentage until such time as an appropriate officer's
certificate is provided, whereupon the level shall be determined by the then
current Ratio of Consolidated Funded Debt to Total Capitalization. Except as set
forth above, each Applicable Percentage shall be effective from one Calculation
Date until the next Calculation Date.
SECTION 4.7. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Borrower may, at its option, prepay Borrowings consisting of Base
Rate Advances at any time in whole, or from time to time in part, in amounts
aggregating $1,000,000 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. Borrowings consisting of Eurodollar Advances
or Competitive Bid Rate Advances may be prepaid, at Borrower's option, in whole,
or from time to time in part, in amounts aggregating $1,000,000 or an integral
multiple of $1,000,000 (except that no partial prepayment may be made if the
remaining principal amount outstanding of such Eurodollar Advance which
comprises a Revolving Loan or Competitive Bid Rate Advance would be less than
$5,000,000), 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 4.13. if such prepayment is made on a
date other than the last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with Section 4.7.(c) below.
(b) Borrower shall give written notice (or telephonic notice confirmed
in writing) to the Agent or the Swing Line Lender, as applicable, of any
intended prepayment of the Revolving Loans (i) by 11:00 A.M. (local time for the
Agent) on the Business Day of any prepayment of Base Rate Advances or Cost of
Funds Advances and (ii) not less than three Business Days prior to any
prepayment of Eurodollar Advances or Competitive Bid
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Rate Advances. Such notice, once given, shall be irrevocable. Upon receipt of
such notice of prepayment pursuant to the first sentence of this paragraph (b)
with respect to any prepayment of Revolving Loans or Competitive Bid Loans, the
Agent shall promptly (and in any event by the same time on the next succeeding
Business Day as such notice is received) notify each Lender of the contents of
such notice and of such Lender's Applicable Commitment Percentage of each
Revolving Loan and its pro rata share of each Competitive Bid Loan subject to
such prepayment.
(c) Borrower, when providing notice of prepayment pursuant to Section
4.7.(b), may designate the Types of Advances and the specific Borrowing or
Borrowings which are to be prepaid, provided that (i) if any prepayment of
Eurodollar 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 $5,000,000, such Borrowing shall immediately be converted into
Base Rate Advances; and (ii) each prepayment made pursuant to a single
Borrowing shall be applied pro rata among the Loans comprising such Borrowing.
In the absence of a designation by Borrower, the Agent or, with respect to the
Swing Line Loans, the Swing Line Lender, shall, subject to the foregoing, make
such designation in its discretion but using reasonable efforts to avoid
funding losses to the Lenders pursuant to Section 4.13. and subject to the last
sentence of Section 4.16. All voluntary prepayments shall be applied to the
payment of interest then due and owing before application to principal.
SECTION 4.8. MANNER OF PAYMENT, CALCULATION OF INTEREST, TAXES
(a) (i) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other than the
payments specified in clause (ii) below, shall be made without defense, set-off
or counterclaim to the Agent not later than 12:00 noon (local time for the
Agent) on the date when due and shall be made in Dollars in immediately
available funds at the Agent's Payment Office.
(ii) All payments under this Agreement with respect to the Swing
Line Loans, including the Swing Line Facility Fee, shall be made without
defense, set-off or counterclaim to the Swing Line Lender not later than 12:00
noon (local time for the Swing Line Lender) on the date when due and shall be
made in Dollars in immediately available funds at the Swing Line Lender's
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 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 paragraph (iii) hereof, in the case of each Lender, taxes imposed
on or measured by its net income, and franchise taxes and branch profit taxes
imposed on it (A) by the jurisdiction under the laws of which such Lender is
organized or any political subdivision thereof and, in the case of each Lender,
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taxes imposed on or measured by its net income, and franchise taxes and branch
profit taxes imposed in it, by the jurisdiction of such Lender's appropriate
Lending Office or any political subdivision thereof, and (B) by a jurisdiction
in which any payments are to be made by any Borrower hereunder, other than the
United States of America, or any political subdivision of any thereof, and that
would not have been imposed but for the existence of a connection between such
Lender and the jurisdiction imposing such taxes (other than a connection arising
as a result of this Agreement or the transactions contemplated by this
Agreement), except in the case of taxes described in this clause (B), to the
extent such taxes are imposed as a result of a change in the law or regulations
of any jurisdiction or any applicable treaty or regulations or in the official
interpretation of any such law, treaty or regulations by any government
authority charged with the interpretation or administration thereof after the
date of this Agreement. If any such Taxes are so levied or imposed, Borrower
agrees (A) to pay the full amount of such Taxes, and such additional amounts as
may be necessary so that every net payment of all amounts due hereunder and
under the Notes and other Credit Documents, after withholding or deduction for
or on account of any such Taxes (including additional sums payable under this
Section 4.8.), will not be less than the full amount provided for herein had no
such deduction or withholding been required, (B) to make such withholding or
deduction and (C) to pay the full amount deducted to the relevant authority in
accordance with applicable law. Borrower will furnish to the Agent and each
Lender, within 30 days after the date the payment of any Taxes is due pursuant
to applicable law, certified copies of tax receipts evidencing such payment by
Borrower. Borrower will indemnify and hold harmless the Agent and each Lender
and reimburse the Agent and each Lender upon written request for the amount of
any such Taxes so levied or imposed and paid by the Agent or Lender and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes were correctly or illegally asserted.
A certificate as to the amount of such payment by such Lender or the Agent,
absent manifest error, shall be final, conclusive and binding for all purposes.
(ii) Each Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) agrees to furnish to Borrower and the Agent, prior to the
time it becomes a Lender hereunder, two copies of either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any successor
forms thereto (wherein such Lender claims entitlement to complete exemption from
U.S. Federal withholding tax on interest paid by Borrower hereunder) and to
provide to Borrower and the Agent a new Form 4224 or Form 1001 or any successor
forms thereto if any previously delivered form is found to be incomplete or
incorrect in any material respect or upon the obsolescence of any previously
delivered form; provided, however, that no Lender shall be required to furnish a
form under this paragraph (ii) after the date that it becomes a Lender hereunder
if it is not entitled to claim an exemption from withholding under applicable
law.
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(iii) Borrower shall also reimburse the Agent and each Lender, upon written
request, for any Taxes imposed (including, without limitation, Taxes imposed on
the overall net income of the Agent or Lender or its applicable Lending Office
pursuant to the laws of the jurisdiction in which the principal executive
office or the applicable Lending Office of the Agent or Lender is located) as
the Agent or Lender shall determine are payable by the Agent or Lender in
respect of amounts paid by or on behalf of Borrower to or on behalf of the
Agent or Lender pursuant to paragraph (i) hereof.
(iv) In addition to the documents to be furnished pursuant to Section
4.8(b)(ii), each Lender shall, promptly upon the reasonable written request of
the Borrower to that effect, deliver to the Borrower such other accurate and
complete forms or similar documentation as such Lender is legally able to
provide and as may be required from time to time by any applicable law, treaty,
rule or regulation or any jurisdiction in order to establish such Lender's tax
status for withholding purposed or as may otherwise be appropriate to eliminate
or minimize any Taxes on payments under this Agreement or the Notes.
(v) The Borrower shall not be required to pay any amounts pursuant to
Section 4.8(b)(i) or (iii) to any Lender for the account of any Lending Officer
of such Lender in respect of any United States withholding taxes payable
hereunder (and the Borrower, if required by law to do so, shall be entitled to
withhold such amounts and pays such amounts to the United States Government) if
the obligation to pay such additional amounts would not have arisen but for a
failure by such Lender to comply with its obligations under Section 4.8(b)(ii),
and such Lender shall not be entitled to exemption from deduction or
withholding of United Stated Federal income tax in respect of the payment of
such sum by the Borrower hereunder for the account of such Lending Office for,
in each case, any reason other than a change in United States law or
regulations by any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law) after the date
such Lender became a Lender hereunder.
(vi) Within sixty (60) days of the written request of the Borrower,
each Lender shall execute and deliver such certificates, forms or other
documents, which can be reasonably furnished consistent with the facts and
which are reasonably necessary to assist in applying for refunds of Taxes
remitted hereunder.
(vii) To the extent that the payment of any Lender's Taxes by the
Borrower gives rise from time to time to a Tax Benefit (as hereinafter defined)
to such Lender in any jurisdiction other than the jurisdiction which imposed
such Taxes, such Lender shall pay to the Borrower the amount of each such Tax
Benefit so recognized or received. The amount of each Tax Benefit and,
therefore, payment to the Borrower will be determined from time to time by the
relevant Lender in its sole discretion, which determination shall be binding
and conclusive on all parties hereto. Each such payment will be due and payable
by such Lender to the Borrower within a reasonable time after the filing of the
income tax return in which such Tax Benefit is recognized or, in the case of
any tax re-
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fund, after the refund is received; provided, however, if at any time thereafter
such Lender is required to rescind such Tax Benefit or such Tax Benefit is
otherwise disallowed or nullified, the Borrower shall promptly, after notice
thereof from such Lender, repay to Lender the amount of such Tax Benefit
previously paid to the Borrower and rescinded, disallowed or nullified. For
purposed of this section, "Tax Benefit" shall mean the amount by which any
Lender's income tax liability for the taxable period in question is reduced
below what would have been payable had the Borrower not been required to pay the
Lender's Taxes. In case of any dispute with respect to the amount of any payment
the Borrower shall have no right to any offset or withholding of payments with
respect to future payments due to any Lender under this Agreement or the Notes.
(c) Subject to Section 4.4.(c)(ii), whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be made on the basis of
a year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable (to the extent computed on the basis of days elapsed). Interest on
Base Rate Advances shall be calculated based on the Base Rate from and including
the date of such Loan to but excluding the date of the repayment or conversion
thereof. Interest on Eurodollar Advances, Cost of Funds Advances and Competitive
Bid Rate Advances shall be calculated as to each Interest Period from and
including the first day thereof to but excluding the last day thereof. Each
determination by the Agent 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 the Borrower to the Agent in accordance with the terms
of this Agreement shall, as to the Borrower, constitute payment to the Lenders
under this Agreement.
SECTION 4.9. INTEREST RATE NOT ASCERTAINABLE, ETC.
In the event that the Agent shall have determined (which determination
shall be made in good faith and, absent manifest error, shall be final,
conclusive and binding upon all parties) that on any date for determining the
Adjusted LIBO Rate 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 Adjusted LIBO Rate, then, and in any such event, the Agent shall
forthwith give notice (by telephone confirmed in writing) to Borrower and to the
Lenders, of such
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determination and a summary of the basis for such determination. Until the
Agent notifies Borrower that the circumstances giving rise to the suspension
described herein no longer exist, the obligations of the Lenders to make or
permit portions of the Revolving Loans and the Swing Line Loans to remain
outstanding past the last day of the then current Interest Periods as
Eurodollar Advances shall be suspended, and such affected Advances shall bear
the same interest as Base Rate Advances. Nothing set forth in this Section 4.9.
shall prohibit the Borrower from utilizing the provisions herein relating to
Competitive Bid Rate Advances or Cost of Funds Advances.
SECTION 4.10. ILLEGALITY.
(a) In the event that any Lender or the Swing Line 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 Eurodollar Advance or Competitive Bid Rate
Advance has become unlawful by compliance by such Lender in good faith with any
applicable law, governmental rule, regulation, guideline or order (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful), then, in any such event, the Lender shall give prompt notice (by
telephone confirmed in writing) to Borrower and to the Agent of such
determination and a summary of the basis for such determination (which notice
the Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Borrower referred to in subsection
(a) above, (i) Borrower's right to request and such Lender's obligation to make
Eurodollar Advances or Competitive Bid Rate Advances shall be immediately
suspended, and such Lender shall make an Advance as part of the requested
Borrowing of Eurodollar Advances as a Base Rate Advance, which Base Rate
Advance, as the case may be, shall, for all other purposes, be considered part
of such Borrowing, and (ii) if the affected Eurodollar Advance or Advances are
then outstanding, Borrower shall immediately, or if permitted by applicable law,
no later than the date permitted thereby, upon at least one Business Day's
written notice to the Agent and the affected Lender, convert each such Advance
into 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 4.10.(b).
SECTION 4.11. INCREASED COSTS.
(a) If, by reason of (x) after the date hereof, the introduction of or
any change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request from any central
bank or other governmental authority or quasi-governmental authority exercising
control over banks or financial institutions generally (whether or not having
the force of law):
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(i) any Lender (or its applicable Lending Office) shall be subject
to any tax, duty or other charge with respect to its
Eurodollar Advances or Competitive Bid Rate Advances, or its
obligation to make such Advances, or the basis of taxation of
payments to any Lender of the principal of or interest on its
Eurodollar Advances or Competitive Bid Rate Advances or its
obligation to make Eurodollar Advances shall have changed
(except for changes in the tax on the overall net income of
such Lender or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal executive office
or applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special
deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any
Lender's applicable Lending Office shall be imposed or deemed
applicable or any other condition affecting its Eurodollar
Advances or Competitive Bid Rate Advances or its obligation to
make Eurodollar Advances or Competitive Bid Rate 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 Eurodollar Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBO Rate for Eurodollar Advances) or Competitive Bid Rate Advances or
its obligation to make Eurodollar Advances, or there shall be a reduction in the
amount received or receivable by such Lender or its applicable Lending Office,
then Borrower shall from time to time (subject, in the case of certain Taxes, to
the applicable provisions of Section 4.8.(b)), upon written notice from and
demand by such Lender to Borrower (with a copy of such notice and demand to the
Agent), pay to the Agent for the account of such Lender within ten (10) Business
Days after the date of such notice and demand, additional amounts sufficient to
indemnify such Lender against such increased cost. A certificate as to the
amount of such increased cost, submitted to Borrower and the Agent by such
Lender in good faith and accompanied by a statement prepared by such Lender
describing in reasonable detail the basis for and calculation of such increased
cost, shall, except for manifest error, be final, conclusive and binding for all
purposes.
(b) If any Lender shall advise the Agent that at any time, because of
the circumstances described in clauses (x) or (y) in Section 4.11.(a) or any
other circumstances beyond such Lender's reasonable control arising after the
date of this Agreement affecting such Lender or the London interbank market or
such Lender's position in such market, the Adjusted LIBO Rate as determined by
the Agent will not adequately and fairly reflect the
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cost to such Lender of funding its Eurodollar Advances or, if applicable,
Competitive Bid Rate Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by telephone confirmed
in writing) to Borrower and to the other Lenders of such
advice;
(ii) Borrower's right to request and such Lender's obligation to
make or permit portions of the Loans to remain outstanding
past the last day of the then current Interest Periods as
Eurodollar Advances or Competitive Bid Rate Advances shall be
immediately suspended;
(iii) in the event the affected Loan is a Revolving Loan, such
Lender shall make a Loan as part of the requested Borrowing
under the Revolving Loan Commitments of Eurodollar Advances as
a Base Rate Advance, which such Base Rate Advance shall, for
all other purposes, be considered part of such Borrowing; and
(iv) in the event the affected Loan is a Swing Line Loan, the Swing
Line Lender shall make a Loan as part of the requested
Borrowing under the Swing Line Commitment of Eurodollar
Advances as a Base Rate Advance, which such Base Rate Advance
shall, for all other purposes, be considered part of such
Borrowing. Nothing set forth in this clause (iv) shall
prohibit the Borrower from requesting Cost of Funds Advances
from the Swing Line Lender.
SECTION 4.12. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Borrower, it will use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate an alternate Lending Office with respect to any of its Eurodollar
Advances or Competitive Bid Rate Advance, as the case may be, affected by the
matters or circumstances described in Sections 4.8.(b), 4.9., 4.10., 4.11. or
4.17. to reduce the liability of Borrower or avoid the results provided
thereunder, so long as such designation is not disadvantageous to such Lender as
reasonably determined by such Lender, which determination shall be conclusive
and binding on all parties hereto. Nothing in this Section 4.12. shall affect or
postpone any of the obligations of Borrower or any right of any Lender provided
hereunder.
(b) If any Lender that is organized under the laws of any jurisdiction
other than the United States of America or any State thereof (including the
District of Columbia) issues a public announcement with respect to the closing
of its lending offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be required to be
made by Borrower thereafter pursuant to
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Section 4.8.(b), such Lender shall use reasonable efforts to furnish Borrower
notice thereof as soon as practicable thereafter; provided, however, that no
delay or failure to furnish such notice shall in any event release or discharge
Borrower from its obligations to such Lender pursuant to Section 4.8.(b) or
otherwise result in any liability of such Lender.
SECTION 4.13. FUNDING LOSSES.
Borrower shall compensate each Lender, upon its written request to
Borrower (which request shall set forth the basis for requesting such amounts in
reasonable detail and which request shall be made in good faith and, absent
manifest error, shall be final, conclusive and binding upon all of the parties
hereto), for all actual 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 Eurodollar Advances or Competitive Bid Rate Advances, in
either case to the extent not recovered by such Lender in connection with the
re-employment of such funds but excluding loss of anticipated profits), which
the Lender may sustain: (i) if for any reason (other than a default by such
Lender) a borrowing of, or conversion to or continuation of, Eurodollar Advances
or Competitive Bid Rate Advances to Borrower does not occur on the date
specified therefor in a Notice of Borrowing, Notice of Swing Line Loan,
Competitive Bid Accept/Reject Letter, Notice of Conversion/Continuation or
Notice of Conversion/Continuation of Swing Line Loans (whether or not
withdrawn), (ii) if any repayment (including mandatory prepayments and any
conversions pursuant to Section 4.10.(b)) of any Eurodollar Advances to Borrower
occurs on a date which is not the last day of an Interest Period applicable
thereto, or (iii), if, for any reason, Borrower defaults in its obligation to
repay its Eurodollar Advances when required by the terms of this Agreement.
SECTION 4.14. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR AND
COMPETITIVE BID RATE ADVANCES.
Calculation of all amounts payable to a Lender under this Article 4.
shall be made as though that Lender had actually funded its relevant Eurodollar
Advances or Competitive Bid Rate Advances through the purchase of deposits in
the relevant market bearing interest at the rate applicable to such Eurodollar
Advances or Competitive Bid Rate Advance in an amount equal to the amount of the
Eurodollar Advances or Competitive Bid Rate Advance and having a maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar Advances or Competitive Bid Rate Advance from an offshore office of
that Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar Advances or
Competitive Bid Rate Advances in any manner it sees fit and the foregoing
assumption shall be used only for calculation of amounts payable under this
Article 4.
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SECTION 4.15. APPORTIONMENT OF PAYMENTS.
Aggregate principal and interest payments in respect of Loans and
payments in respect of facility fees shall be apportioned among all outstanding
Commitments and Loans to which such payments relate, proportionately to the
Lenders' respective pro rata portions of such Commitments and outstanding Loans.
The Agent shall promptly distribute to each Lender at its payment office
specified by any Lender its share of all such payments received by the Agent on
the same Business Day as such payment is deemed to be received by the Agent.
SECTION 4.16. 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 Applicable Commitment Percentage of payments or
reductions on account of such obligations obtained by all the Lenders (other
than payments of principal, interest and fees with respect to the Competitive
Bid Loans which are payable solely to the Lenders participating therein), such
Lender shall forthwith (i) notify each of the other Lenders and Agent of such
receipt, and (ii) purchase from the other Lenders such participations in the
affected obligations as shall be necessary to cause such purchasing Lender to
share the excess payment or reduction, net of costs incurred in connection
therewith, ratably with each of them, provided that if all or any portion of
such excess payment or reduction is thereafter recovered from such purchasing
Lender or additional costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such additional costs,
but without interest unless the Lender obligated to return such funds is
required to pay interest on such funds. Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 4.16.
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation. Any payment received by the Agent or any Lender following the
occurrence and during the continuation of an Event of Default shall be
distributed pro rata amongst the Lenders based upon the percentage obtained by
dividing the Obligations owing to each Lender by the total amount of Obligations
on the date of receipt of such payment, with such amounts to be applied to the
outstanding Obligations in accordance with the terms of this Agreement.
SECTION 4.17. 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
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fully applicable as of the Closing Date, or any change therein or in the
interpretation or application thereof after the Closing Date, or compliance by
such Lender with any request or directive regarding capital adequacy not
currently in effect or fully applicable as of the Closing Date (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) from a central bank or governmental authority or body having
jurisdiction, does or shall have the effect of reducing the rate of return on
such Lender's capital as a consequence of its obligations hereunder to a level
below that which such Lender could have achieved but for such law, treaty, rule,
regulation, guideline or order, or such change or compliance (taking into
consideration such Lender's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then within ten (10) Business Days
after written notice and demand by such Lender (with copies thereof to the
Agent), Borrower shall from time to time pay to such Lender additional amounts
sufficient to compensate such Lender for such reduction (but, in the case of
outstanding Base Rate Advances, without duplication of any amounts already
recovered by such Lender by reason of an adjustment in the applicable Base
Rate). Each certificate as to the amount payable under this Section 4.17. (which
certificate shall set forth the basis for requesting such amounts in reasonable
detail), submitted to Borrower by any Lender in good faith, shall, absent
manifest error, be final, conclusive and binding for all purposes.
SECTION 4.18. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) Each Lender or the Agent shall make written demand on the Borrower
for indemnification or compensation pursuant to Section 4.8.(b) no later than
six months after the earlier of (i) on the date on which Lender or the Agent
makes payment of any such Taxes and (ii) the date on which the relevant taxing
authority or other governmental authority makes written demand upon such Lender
or Agent for the payment of such Taxes.
(b) Each Lender or Agent shall make written demand on the Borrower for
indemnification or compensation pursuant to Section 4.13. no later than six
months after the event giving rise to the claim for indemnification or
compensation occurs.
(c) Each Lender or the Agent shall make written demand on the Borrower
for indemnification or compensation pursuant to Section 4.11. or Section 4.17.
no later than six months after such Lender or Agent receives actual notice or
obtains actual knowledge of the promulgation of a law, rule, order,
interpretation or occurrence of another event giving rise to a claim pursuant to
such provisions.
(d) In the event that the Lenders or Agent fail to give the Borrower
notice within the time limitations set forth above, the Borrower shall not have
any obligation to pay amounts with respect to such claims accrued prior to six
months preceding any written demand therefor.
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ARTICLE 5. CONDITIONS TO BORROWINGS
The obligation of each Lender to make Advances to Borrower is subject
to the satisfaction of the following conditions:
SECTION 5.1. CONDITIONS PRECEDENT TO INITIAL LOANS.
At the time of the making of the initial Loans hereunder on the Closing
Date, all obligations of Borrower hereunder incurred prior to the initial Loans
(including, without limitation, Borrower's obligations to reimburse the
reasonable fees and expenses of counsel to the Agent and any fees and expenses
payable to the Agent as previously agreed with Borrower), 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
Credit Commitments, the duly completed Swing Note evidencing the Swing
Line Commitment and the duly executed Competitive Bid Notes evidencing
the Competitive Bid Facility;
(c) receipt by the Agent of evidence that all governmental, shareholder and
material third-party consents (including ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ clearance)
and approvals required in connection with the acquisition of the
Acquired Company and the other transactions contemplated hereby and
expiration of all applicable waiting periods without any action being
taken by any authority that could reasonably be likely to restrain,
prevent or impose any material adverse conditions on the acquisition of
the Acquired Company or such other transactions or that could
reasonably be likely to seek or threaten any of the foregoing, and no
law or regulation shall be applicable which in the judgment of the
Agent could reasonably be likely to have such effect;
(d) certificates of the Secretary or Assistant Secretary of the Borrower
attaching and certifying copies of the resolutions of the board of
directors of the Borrower, authorizing as applicable the execution,
delivery and performance of the Credit Documents;
(e) certificates of the Secretary or an Assistant Secretary of the Borrower
certifying (i) the name, title and true signature of each officer of
the Borrower executing the Credit Documents, and (ii) the bylaws of the
Borrower;
(f) certified copies of the certificate or articles of incorporation of the
Borrower and each of its Subsidiaries certified by the Secretary of
State and by the Secretary or Assistant Secretary of the Borrower or
such Subsidiaries, as appropriate, together
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with certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of incorporation or
organization of the Borrower and each of its Subsidiaries, and each
other jurisdiction where the ownership of property or the conduct of
its business require the Borrower or its Subsidiaries to be qualified,
except where a failure to be so qualified would not have a Materially
Adverse Effect;
(g) certificate of Borrower in substantially the form of Exhibit I attached
hereto and appropriately completed;
(h) there shall not have been any Material modification, amendment,
supplement or waiver to the Purchase Agreement without the prior
written consent of the Agent, including, but not limited to, any
Material modification, amendment, supplement or waiver relating to the
amount or type of consideration to be paid in connection with the
acquisition of the Acquired Company and the contents of all disclosure
schedules and exhibits, the acquisition of the Acquired Company shall
have been consummated substantially in accordance with the terms of the
Purchase Agreement; and Agent shall have received a copy of the final
Purchase Agreement, together with all exhibits and schedules thereto,
certified by an Executive Officer of the Borrower;
(i) the favorable opinion of (a) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire, corporate
counsel to the Borrower and its Subsidiaries as to certain corporate
matters, and (b) King & Spalding, counsel to the Borrower and its
Subsidiaries as to certain matters, in the form of Exhibits J-1 and
J-2, respectively, in each case addressed to the Agent and each of the
Lenders;
(j) copies of all documents and instruments, including all consents,
authorizations and filings, required under the articles or certificate
of incorporation and bylaws or other organizational or governing
documents, under any Requirement of Law or by any material Contractual
Obligation of the Borrower and its Subsidiaries, in connection with the
execution, delivery, performance, validity and enforceability of the
Credit Documents and the other documents to be executed and delivered
hereunder, and such consents, authorizations, filings and orders shall
be in full force and effect and all applicable waiting periods shall
have expired; and
(k) any other document, opinion or certificate reasonably requested by the
Agent and the Lenders assuring the Agent and the Lenders that all
corporate proceedings and all other legal matters in connection with
the authorization, legality, validity and enforceability of the Credit
Documents are in form and substance satisfactory to the Lenders.
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SECTION 5.2. CONDITIONS TO ALL LOANS.
At the time of the making of all Loans, including the initial Loans
hereunder, (before as well as after giving effect to such Loans and to the
proposed use of the proceeds thereof), the following conditions shall have been
satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Borrower contained herein shall
be true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of
the date of such Loans except to the extent they expressly relate to an
earlier date or have been updated to the extent permitted herein;
(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 which has had or is reasonably likely to have a
Materially Adverse Effect (whether or not any notice with respect to
such change has been furnished to the Lenders pursuant to Section
7.7.);
(d) there shall be no action or proceeding instituted or pending before any
court or other governmental authority or, to the knowledge of Borrower,
threatened (i) which is reasonably likely to have a Materially Adverse
Effect, or (ii) seeking to prohibit or restrict one or more of the
Consolidated Companies right to own or operate any portion of its
business or assets, or to compel one or more of the Borrower and its
Consolidated Companies to dispose of or hold separate all or any
portion of its businesses or assets, where such portion or portions of
such business(es) or assets, as the case may be, constitute a Material
portion of the total businesses or assets of the Consolidated
Companies;
(e) the Loans to be made and the use of proceeds thereof shall not
contravene, violate or conflict with, or involve the Agent or any
Lender in a violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental authority
applicable to Borrower; and
(f) the Agent shall have received such other 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 or Competitive Bid Request and the acceptance by
Borrower of the proceeds thereof shall constitute a representation and warranty
by Borrower, as of the date of the Loans comprising such Borrowing, that the
applicable conditions specified in Sections 5.1. and 5.2. have been satisfied.
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ARTICLE 6. REPRESENTATIONS AND WARRANTIES
Borrower (as to itself and all other Consolidated Companies) represents
and warrants as follows:
SECTION 6.1. CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Each of the Consolidated Companies is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation. Each of the Consolidated Companies (i) has the corporate power
and authority and the legal right to own and operate its property and to conduct
its business, (ii) 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 (iii) is in
compliance with all Requirements of Law, where (a) the failure to have such
power, authority and legal right as set forth in clause (i), (b) the failure to
be so qualified or in good standing as set forth in clause (ii), or (c) the
failure to comply with Requirements of Law as set forth in clause (iii), is
reasonably likely, 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 Subsidiary as of the date of this
Agreement is accurately described on Schedule 6.1. Schedule 6.1. may be updated
from time to time by the Borrower by giving written notice thereof to the Agent.
SECTION 6.2. CORPORATE POWER; AUTHORIZATION.
Each of the Borrower and its Subsidiaries 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 the Borrower or its Subsidiaries, or the validity or
enforceability against the Borrower or its Subsidiaries, of the Credit
Documents, other than such consents, authorizations or filings which have been
made or obtained.
SECTION 6.3. ENFORCEABLE OBLIGATIONS.
This Agreement has been duly executed and delivered, and each other
Credit Document will be duly executed and delivered, by the respective
Consolidated Companies, as applicable, and this Agreement constitutes, and each
other Credit Document when executed and delivered will constitute, legal, valid
and binding obligations of the Consolidated Companies executing the same,
enforceable against such Consolidated Companies in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of
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equity.
SECTION 6.4. NO LEGAL BAR.
The execution, delivery and performance by the Consolidated Companies
of the Credit Documents will not violate their articles or certificate of
incorporation, bylaws or other organizational or governing documents or any
Requirement of Law or cause a breach or default under any of their respective
Material Contractual Obligations.
SECTION 6.5. NO MATERIAL LITIGATION.
Except as set forth on Schedule 6.5., no litigation, investigation or
proceeding of or before any court, tribunal, arbitrator or governmental
authority is pending or, to the knowledge of any Executive Officer of the
Borrower, threatened by or against any of the Consolidated Companies, or against
any of their respective properties or revenues, existing or future (a) with
respect to any Credit Document, or any of the transactions contemplated hereby
or thereby, or (b) which, if adversely determined, is reasonably likely to have
a Materially Adverse Effect.
SECTION 6.6. INVESTMENT COMPANY ACT, ETC.
Neither the Company nor any of its Subsidiaries 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). Neither the Company nor any of its Subsidiaries 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 6.7. MARGIN REGULATIONS.
No part of the proceeds of any of the Loans will be used for any
purpose which violates, or which would be inconsistent or not in compliance
with, the provisions of the applicable Margin Regulations.
SECTION 6.8. 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, is
reasonably likely to result in penalties, fines, claims or other liabilities to
the Consolidated Companies in amounts that would have a Materially Adverse
Effect, either individually or in the aggregate (including any such
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penalties, fines, claims, or liabilities relating to the matters set forth on
Schedule 6.8.), except as set forth on Schedule 6.8.).
(b) Except as set forth on Schedule 6.8.(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 is
reasonably likely to result in penalties, fines, claims or other liabilities to
the Consolidated Companies in amounts that would have a Materially Adverse
Effect, either individually or in the aggregate.
(c) Except as set forth on Schedule 6.8.(c), the Consolidated Companies
have obtained all necessary governmental permits, licenses and approvals for 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, in any such
case where the failure to have such license, permit or approval is reasonably
likely to have a Materially Adverse Effect.
SECTION 6.9. 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 which 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 which has had or is reasonably
likely to have a Materially Adverse Effect.
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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 or any provision of its articles or certificate of incorporation, bylaws or
other organizational or governing documents which has had or is reasonably
likely to have a Materially Adverse Effect.
SECTION 6.12. TAXES.
The Borrower and its Subsidiaries have filed all Federal tax returns
and, to the knowledge of the Executive Officers of the Borrower, the Borrower
and its Subsidiaries have filed all other tax returns which are required to have
been filed in any jurisdiction; the Borrower and its Subsidiaries have paid all
taxes shown to be due and payable on such Federal returns and other returns and
all other taxes, assessments, fees and other charges payable by them, in each
case, to the extent the same have become due and payable and before they have
become delinquent, except for the filing of any such returns or the payment of
any taxes, assessments, fees and other charges the amount, applicability or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which the Borrower or a Subsidiary, as the case
may be, has set aside on its books reserves (segregated to the extent required
by GAAP) deemed by it in good faith to be adequate. The Borrower has not
received written notice of any proposed Material tax assessment with respect to
Federal income taxes against the Borrower or any Subsidiary nor does any
Executive Officer of the Borrower know of any Material Federal income tax
liability on the part of the Borrower or any Subsidiary other than any such
assessment or liability which is adequately provided for on the books of the
Borrower and its Subsidiaries.
SECTION 6.13. SUBSIDIARIES.
Except as disclosed on Schedule 6.13., Borrower has no Subsidiaries and
neither Borrower nor any Subsidiary is a joint venture partner or general
partner in any partnership. Schedule 6.13. indicates which Subsidiaries are
Restricted Subsidiaries and which Subsidiaries are Unrestricted Subsidiaries.
Schedule 6.13. may be updated from time to time by the Borrower by giving
written notice thereof to the Agent.
SECTION 6.14. FINANCIAL STATEMENTS.
Borrower has furnished to the Agent and the Lenders (i) the audited
consolidated balance sheets as of September 30, 1996, 1995, and 1994 of Borrower
and the related consolidated statements of income, shareholders' equity and cash
flows for the fiscal years then ended, including in each case the related notes.
The foregoing financial statements fairly present in all material respects the
consolidated financial condition of Borrower as at the dates thereof and results
of operations for such periods in conformity
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with GAAP consistently applied (subject, in the case of the quarterly financial
statements, to normal year-end audit adjustments and the absence of certain
notes). The Consolidated Companies taken as a whole did not have any material
contingent obligations, contingent liabilities, or material liabilities for
known taxes, long-term leases or unusual forward or long-term commitments
required to be reflected in the foregoing financial statements or the notes
thereto that are not so reflected. Since September 30, 1996, there have been no
changes with respect to the Consolidated Companies which has had or is
reasonably likely to have a Materially Adverse Effect.
SECTION 6.15. ERISA.
Except as disclosed on Schedule 6.15.:
(1) Identification of Plans. None of the Consolidated Companies nor
any of their respective ERISA Affiliates maintains or contributes to, or has
during the past seven years maintained or contributed to, any Plan that is
subject to Title IV of ERISA;
(2) Compliance. Each Plan maintained by the Consolidated Companies have
at all times been maintained, by their 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;
(3) 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;
(4) Funding. The Consolidated Companies and, with respect to any Plan
which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required to be
contributed under the terms of each Plan and applicable law, and (B) 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 un-
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funded 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 which, 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 which, 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.
Schedule 6.15., as it applies to paragraph (1) above, may be updated
from time to time by the Borrower by giving written notice thereof to the Agent.
SECTION 6.16. PATENTS, TRADEMARKS, LICENSES, ETC.
Except as set forth on Schedule 6.16., (i) 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, which are necessary for the operation
of their respective businesses as presently conducted, and (ii) to the best of
Borrower's 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 Borrower, 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; LIENS.
(a) Except as set forth on Schedule 6.17., (i) 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 September 30,
1996 except where the failure to hold such title, leasehold interest or
possession would not have a Materially Adverse Effect, 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 by
Section 8.2. and (ii) the Consolidated Companies enjoy peaceful and undisturbed
possession under all of their respective leases.
(b) As of the date of this Agreement, the property and assets owned by
each Consolidated Company are not subject to any Lien securing any Indebtedness
or other
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obligation of such Consolidated Company in excess of $5,000,000 individually
other than as described on Schedule 6.18 hereof.
SECTION 6.18. INDEBTEDNESS.
Except for the Indebtedness outstanding pursuant to the Prior
Agreements to be refinanced on the Closing Date and as set forth on Schedule
6.18. for each Consolidated Company, as of the date hereof none of the
Consolidated Companies is an obligor in respect of any Indebtedness for Borrowed
Money in excess of $5,000,000 individually, or any commitment to create or incur
any Indebtedness for Borrowed Money in excess of $5,000,000 individually.
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 of the Loans as provided in Articles 2. and
3. (i) the assets of each Consolidated Company at fair valuation and based on
their present fair saleable value will exceed such Consolidated Company's debts,
including contingent liabilities, (ii) the remaining capital of such
Consolidated Company will not be unreasonably small to conduct such Consolidated
Company's business, and (iii) such Consolidated Company will not have incurred
debts, or have intended to incur debts, beyond the Consolidated Company'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 which is reasonably likely to have, a Materially Adverse
Effect, and, to the best knowledge of the Executive Officers of the Borrower,
there are no such strikes, disputes, slow downs or work stoppages threatened
against any Consolidated Company except as disclosed in writing to the Agent.
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, and all payments due
from the Consolidated Companies, or for which any claim may be made against the
Consolidated Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as liabilities on the
books
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of the Consolidated Companies, in each case where the failure to comply with
such laws or to pay or accrue such liabilities is reasonably likely to have a
Materially Adverse Effect.
SECTION 6.21. PAYMENT OR DIVIDEND RESTRICTIONS.
Except as 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.
(a) Neither this Agreement nor any financial statements delivered to
the Lenders nor in the most recent version of any other document, certificate or
written statement furnished to the Lenders by or on behalf of any Consolidated
Company in connection with the transactions contemplated hereby contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein or herein not misleading, it
being understood that the representation set forth in this Section 6.22.(a)
shall not apply to any financial projections or other pro forma financial
information.
(b) The financial projections and other pro forma financial information
contained in the information referred to in subsection (a) above were based on
good faith estimates and assumptions believed by the applicable Consolidated
Companies to be reasonable at the time made and at the time furnished to the
Agent and/or any Lender, it being recognized by the Lenders that such
projections and other pro forma financial information as to future events such
projections and other pro forma financial information may differ from the
projected results for such period or periods.
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ARTICLE 7. AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid, Borrower will:
SECTION 7.1. CORPORATE EXISTENCE, ETC.
Preserve and maintain, and cause each of the Restricted Subsidiaries to
preserve and maintain, its corporate existence (except as otherwise permitted
pursuant to Section 8.4.), 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 is
reasonably likely to have a Materially Adverse Effect.
SECTION 7.2. 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 exceptions set forth in Section 6.8. where the penalties, claims,
fines, and other liabilities resulting from noncompliance with such
Environmental Laws do not involve amounts Material 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 is
reasonably likely to have a Materially Adverse Effect.
SECTION 7.3. PAYMENT OF TAXES AND CLAIMS, ETC.
File and cause each Subsidiary to file all Federal, state, local and
foreign tax returns that are required to be filed by each of them and will pay
or make provision for the payment of all taxes that have become due pursuant to
such returns or pursuant to any assessment in respect thereof received by the
Borrower or any Subsidiary, and the Borrower and each Subsidiary will pay or
cause to be paid all other taxes, assessments, fees and other governmental
charges and levies which, to the knowledge of the Executive Officers of the
Borrower or any Subsidiary, are due and payable before the same become
delinquent, except only such taxes and assessments as are being contested in
good faith by appropriate and timely proceedings and as to which adequate
reserves have been established in accordance with GAAP.
SECTION 7.4. KEEPING OF BOOKS.
Keep, and cause each of its Subsidiaries to keep, proper books of
record and account, containing complete and accurate entries of all their
respective financial and business transactions.
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SECTION 7.5. VISITATION, INSPECTION, ETC.
Permit, and cause each of its Subsidiaries to permit, any
representative of the Agent or any Lender, at the Agent's or such Lender's
expense, to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all at such reasonable times
and as often as the Agent or such Lender may reasonably request after reasonable
prior notice to Borrower; provided, however, that at any time following the
occurrence and during the continuance of a Default or an Event of Default, no
prior notice to Borrower shall be required.
SECTION 7.6. 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 and subject
to such deductibles and self-insurance programs as the Borrower in its judgment
deems reasonable; provided, however, that in any event Borrower shall use its
best efforts to maintain, or cause to be maintained, insurance in amounts and
with coverages not materially less favorable to any Consolidated Company as in
effect on the date of this Agreement, except where the costs of maintaining such
insurance would, in the judgment of the Borrower, be excessive.
(b) Cause, and cause each of the Consolidated Companies to cause, all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, settlements and improvements thereof, all as in the judgment of
Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent Borrower from discontinuing
the operation or maintenance of any such properties if such discontinuance is,
in the judgment of Borrower, desirable in the conduct of its business or the
business of any Consolidated Company.
(c) Cause 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 to be delivered to the Agent
on or before thirty (30) days after the Closing Date.
SECTION 7.7. FINANCIAL REPORTS.
The Borrower will furnish to the Agent and each Lender:
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(a) within sixty (60) days after the end of each of the first three
quarter-annual periods of each of its fiscal years (and, in any event, in each
case as soon as prepared), the quarterly Financial Report of the Borrower as at
the end of that period, prepared on a consolidated basis an accompanied by a
certificate, dated the date of furnishing, signed by a Financial Officer of the
Borrower to the effect that such Financial Report accurately presents in all
material respects the consolidated financial condition of the Borrower and its
consolidated Subsidiaries and that such Financial Report has been prepared in
accordance with GAAP consistently applied (subject to year end adjustments),
except that such Financial Report need not be accompanied by notes;
(b) within one hundred twenty (120) days after the end of each of its
fiscal years (and, in any event, as soon as available), the annual Financial
Report of the Borrower for that year prepared on a consolidated basis (which
Financial Report shall be reported on by the Borrower's independent certified
public accountants, such report to state that such Financial Report fairly
presents in all material respects the consolidated financial condition and
results of operation of the Borrower and its consolidated Subsidiaries in
accordance with GAAP and to be without any material qualifications or
exceptions); provided, however, during any period that the Borrower has
consolidated Subsidiaries which are not Restricted Subsidiaries, the Borrower
shall also provide such financial information in a form sufficient to enable the
Agent and the Lenders to determine the compliance of the Borrower with the terms
of this Agreement with respect to the Borrower and its Restricted Subsidiaries;
(c) within sixty (60) days after the end of each of its first three
quarterly accounting periods and within one hundred twenty (120) days after the
end of its annual accounting period, a statement certified as true and correct
by a Financial Officer of the Borrower, substantially in the form of Exhibit D
hereto, reflecting compliance with Sections 8.1., 8.2., 8.3. and 8.4. hereof,
with back-up material setting forth in reasonable detail such calculations
attached thereto and stating whether any Event of Default has occurred and is
continuing;
(d) within sixty (60) days after the end of each of its quarterly
accounting periods, a statement certified as true and correct by a Financial
Officer of the Borrower setting forth the Consolidated Funded Debt to Total
Capitalization ratio as of the last day of such quarterly accounting period;
(e) promptly upon the filing thereof or otherwise becoming available,
copies of all financial statements, annual, quarterly and special reports, proxy
statements and notices sent or made available generally by Borrower to its
public security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any of them with any
securities exchange or with the Securities and Exchange Commission, and of all
press releases and other statements made available generally to the public
containing Material developments in the business or financial condition of
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Borrower and the other Consolidated Companies;
(f) promptly upon receipt thereof, copies of all financial statements
of, and all reports submitted by, independent public accountants to Borrower in
connection with each annual, interim, or special audit of Borrower's financial
statements, including without limitation, the comment letter submitted by such
accountants to management in connection with their annual audit;
(g) as soon possible and in any event within thirty (30) days after the
Borrower or any Subsidiary knows or has reason to know that any "Reportable
Event" (as defined in Section 4043(b) of ERISA) with respect to any Plan has
occurred (other than such a Reportable Event for which the PBGC has waived the
30-day notice requirement under Section 4043(a) of ERISA) and such Reportable
Event involves a matter that has had, or is reasonably likely to have, a
Materially Adverse Effect, a statement of a Financial Officer of the Borrower or
such Subsidiary setting forth details as to such Reportable Event and the action
which the Borrower or such Subsidiary proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given to the PBGC if
a copy of such notice is available to the Borrower or such Subsidiary; and
(h) with reasonable promptness, such other information relating to the
Borrower's performance of this Agreement or its financial condition as may
reasonably be requested from time to time by the Agent.
SECTION 7.8. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Immediately upon its receipt thereof, Borrower shall furnish the Agent
a copy of any notice received by it or any other Consolidated Company from the
holder(s) of Indebtedness (or from any trustee, agent, attorney, or other party
acting on behalf of such holder(s)) in an amount which, in the aggregate,
exceeds $10,000,000, where such notice states or claims (i) the existence or
occurrence of any default or event of default with respect to such Indebtedness
under the terms of any indenture, loan or credit agreement, debenture, note, or
other document evidencing or governing such Indebtedness, or (ii) the existence
or occurrence of any event or condition which requires or permits holder(s) of
any Indebtedness of the Consolidated Companies to exercise rights under any
Change in Control Provision.
SECTION 7.9. NOTICE OF LITIGATION.
The Borrower shall notify the Agent of any actions, suits or
proceedings instituted by any Person against it or any Subsidiary where the
uninsured portion of the money damages sought (which shall include any
deductible amount to be paid by the Borrower or such Subsidiary) is in excess of
$10,000,000 or which is reasonably likely to have a Materially Adverse Effect.
Said notice is to be given along with the quarterly and annual
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reports required by Section 7.7. hereof, and is to specify the amount of damages
being claimed or other relief being sought, the nature of the claim, the Person
instituting the action, suit or proceeding, and any other significant features
of the claim.
SECTION 7.10. SUBSIDIARY GUARANTEES.
(a) Subject to subsection (c) below, the Borrower shall cause all of
its Restricted Subsidiaries existing as of the Closing Date to execute and
deliver a Subsidiary Guarantee and a counterpart Contribution Agreement in
substantially the same form as set forth, respectively, in Exhibits "L" and "M",
on or before April 21, 1997. The delivery of such documents shall be accompanied
by such other documents as the Agent may reasonably request (e.g., certificates
of incorporation, articles of incorporation and bylaws, membership operating
agreements, opinion letters and appropriate resolutions of the Board of
Directors of any such Subsidiary Guarantor).
(b) Subject to subsection (c) below, the Borrower shall cause all of
its Restricted Subsidiaries not existing as of the Closing Date to execute and
deliver Subsidiary Guarantees and a counterpart Contribution Agreement in
substantially the same form as set forth, respectively, in Exhibits "L" and "M",
within thirty (30) days of the creation or acquisition of any such Restricted
Subsidiary by the Borrower or other Restricted Subsidiary. The delivery of such
documents shall be accompanied by such other documents as the Agent may
reasonably request (e.g., certificates of incorporation, articles of
incorporation and bylaws, membership operating agreements, opinion letters and
appropriate resolutions of the Board of Directors of any such Subsidiary
Guarantor).
(c) Notwithstanding the foregoing subsections (a) and (b), the Borrower
shall not be required to cause any Restricted Subsidiary to deliver a Subsidiary
Guarantee and a counterpart Contribution Agreement if (i) such Restricted
Subsidiary is incorporated under any jurisdiction outside of the United States
of America (or any of its territories); (ii) the delivery of such documents
would cause such Restricted Subsidiary to violate any Requirement of Law; or
(iii) the delivery of such documents would result in any Rating Agency
downgrading the rating of the Borrower.
(d) In the event that the Borrower or any Restricted Subsidiary sells
any Subsidiary Guarantor as permitted by Section 8.4 hereof, then such
Subsidiary Guarantor shall be released from all obligations under the Subsidiary
Guarantee and Contribution Agreement which it had previously delivered to the
Agent. Such release shall occur upon the consummation of the sale and the Agent
shall execute and deliver any releases or other documents reasonably requested
by the Borrower to effectuate such release.
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ARTICLE 8. NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any Note shall
remain unpaid:
SECTION 8.1. FINANCIAL REQUIREMENTS.
The Borrower shall not:
(i) Fixed Charges. Suffer or permit, as of the last day of any
fiscal quarter, the ratio of (a) Consolidated Net Income
Available for Fixed Charges to (b) Fixed Charges to be less
than 2.5:1.0, as calculated for a period consisting of the
four preceding fiscal quarters.
(ii) Consolidated Funded Debt to EBITDA. Permit, as of the last day
of any fiscal quarter, the ratio of (a) Consolidated Funded
Debt to (b) EBITDA to be greater than 4.0:1.0 for fiscal
quarters ending on or before June 30, 1997, and 3.0:1.0 for
fiscal quarters ending on or after September 30, 1997, as
calculated for the four preceding fiscal quarters ending as of
such day.
(iii) Consolidated Funded Debt to Total Capitalization. Permit the
ratio of Consolidated Funded Debt to Total Capitalization as
of the last day of each fiscal quarter ending during the
periods set forth below, to exceed the ratio set forth
opposite such period
--------------------------------------------------------------------------------
PERIOD RATIO
--------------------------------------------------------------------------------
Closing Date thru .65:1
June 30, 1997
--------------------------------------------------------------------------------
September 30, 1997 thru .60:1
June 30, 1998
--------------------------------------------------------------------------------
September 30, 1998 thru .55:1
Maturity Date
--------------------------------------------------------------------------------
SECTION 8.2. LIENS.
The Borrower will not, and will not permit any Restricted Subsidiary
to, create, assume or suffer to exist any Lien upon any of their respective
properties or assets (hereinafter "Properties") whether now owned or hereafter
acquired; provided, however,
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that this Section 8.2. shall not apply to the following:
(a) any Lien for taxes not yet due or taxes or assessments or other
governmental charges which are being actively contested in good faith by
appropriate proceedings;
(b) any Liens, pledges or deposits in connection with worker's
compensation or social security, assessments or other similar charges or
deposits incidental to the conduct of the business of the Borrower or any
Restricted Subsidiary or the ownership of any of their Properties which were not
incurred in connection with the borrowing of money or the obtaining of advances
or credit and which do not in the aggregate Materially detract from the value of
their Properties or Materially impair the use thereof in the operation of their
businesses;
(c) any Lien existing on any properties of any corporation at the time
it becomes a Restricted Subsidiary, or existing prior to the time of acquisition
upon any Properties acquired by the Borrower or any Restricted Subsidiary
through purchase, merger, consolidation or otherwise, whether or not assumed by
the Borrower or such Restricted Subsidiary;
(d) any Lien placed upon any asset at the time of its acquisition (or
within 60 days thereafter) by the Borrower or any Restricted Subsidiary to
secure all or a portion of (or to secure indebtedness incurred prior to or at
the time of the acquisition of such asset for the purpose of financing all or a
portion of) the purchase price thereof; provided, however, that any such Lien
shall not encumber any other properties of the Borrower or such Restricted
Subsidiary;
(e) statutory Liens of carriers, warehousemen, mechanics, materialmen
and other Liens imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate
proceedings;
(f) pledges or deposits for the purpose of securing a stay or discharge
in the course of any legal proceeding provided that the aggregate amount of such
pledges or deposits outstanding at any one time does not exceed five percent
(5%) of Consolidated Net Worth, unless such excess amount is otherwise permitted
pursuant to this Section 8.2;
(g) Liens consisting of encumbrances in the nature of zoning
restrictions, easements, rights and restrictions of record on the use of real
property on the date of the acquisition thereof and statutory Liens of landlords
and lessors which in any case do not Materially detract from the value of such
property or impair the use thereof;
(h) any Lien in favor of the United States of America or any department
or agency thereof, or in favor of any state government or political subdivision
thereof, or in favor of a prime contractor under a government contract of the
United States, or of any
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state government or any political subdivision thereof, and, in each case,
resulting from acceptance of partial, progress, advance or other payments in the
ordinary course of business under government contracts of the United States, or
of any state government or any political subdivision thereof, or subcontracts
thereunder;
(i) any Lien existing on the date hereof;
(j) any Lien securing Funded Debt of a Restricted Subsidiary to the
Borrower;
(k) any Lien renewing, extending, refinancing or refunding any Lien
permitted by clauses (c), (d), (e), (f), (g), (h), (i), or (j) above; provided,
however, that the principal amount secured is not increased, and the Lien is not
extended to other Properties; and
(l) any Lien other than those permitted by clauses (a) through (k)
above; provided, however, that the aggregate amount of all outstanding
obligations secured by Liens permitted by this clause (l) shall not at any time
exceed ten percent (10%) of the Consolidated Net Worth, and when combined
(without duplication) with outstanding Funded Debt of the Restricted
Subsidiaries, such total shall not exceed 20% of Total Capitalization.
SECTION 8.3. LIMITATIONS ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES.
The Borrower will not permit any Restricted Subsidiary to incur or
suffer to exist Funded Debt other than:
(a) Funded Debt of the Restricted Subsidiaries existing on the date of
this Agreement and any renewal, extension, refunding, or refinancing thereof;
(b) additional unsecured or secured (to the extent permitted by Section
8.2. above) Funded Debt which, when aggregated (without duplication) with the
outstanding Funded Debt of all the Restricted Subsidiaries, does not exceed 20%
of the Total Capitalization at the end of each fiscal quarter;
(c) Funded Debt of Waldorf Corporation in the aggregate principal
amount of $100,000,000 evidenced by its 7.42% Senior Notes due June 30, 2005
(the "Waldorf Debt"), provided, that such Funded Debt shall cease to be
permitted under this Section 8.3.(c) on and after June 30, 1997; and
(d) Funded Debt of Waldorf Corporation under the Waldorf Credit
Agreement in the amount and type described in Schedule 6.18 , provided that such
Funded Debt shall cease to be permitted under this Section 8.3(d) on or after
April 21, 1997.
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SECTION 8.4. MERGER AND SALE OF ASSETS.
The Borrower will not, without the prior written consent of the
Required Lenders, merge or consolidate with any other corporation or sell, lease
or transfer or otherwise dispose of all or, during any twelve-month period, a
substantial part of its assets (for purposes of this Section 8.4., substantial
means assets sold, leased, transferred or otherwise disposed of other than in
the ordinary course of business with a book value aggregating an amount greater
than 15% of Consolidated Net Worth, determined by reference to the most recent
audited Financial Report), to any person or entity other than in the ordinary
course of business, nor will the Borrower permit any Restricted Subsidiary to
take any of the above actions; provided that notwithstanding any of the
foregoing limitations, if no Event of Default shall then exist or immediately
thereafter will begin to exist, the Borrower and the Restricted Subsidiaries may
take the following actions (none of which shall be included in calculating the
percentage in the immediately preceding parenthetical):
(a) Any Restricted Subsidiary may merge with (i) the Borrower (provided
that the Borrower shall be the continuing or surviving corporation) or (ii) any
one or more other Subsidiaries provided that either the continuing or surviving
corporation shall be a Restricted Subsidiary or after giving effect to any
merger pursuant to this Section 8.4., the Borrower and/or one or more Restricted
Subsidiaries shall own not less than the same percentage of the outstanding
Voting Stock of the continuing or surviving corporation as the Borrower and/or
one or more Restricted Subsidiaries owned of the merged Restricted Subsidiary
immediately prior to such merger;
(b) Any Restricted Subsidiary may sell, lease, transfer or otherwise
dispose of any of its assets to (i) the Borrower, (ii) any Restricted Subsidiary
or (iii) any Subsidiary of which the Borrower and/or one or more Restricted
Subsidiaries shall own not less than the same percentage of Voting Stock as the
Borrower and/or one or more Restricted Subsidiaries then own of the Restricted
Subsidiary making such sale, lease, transfer or other disposition;
(c) The Borrower may sell, lease, transfer or otherwise dispose of a
substantial part of its assets to any Subsidiary, provided (i) that upon
completion of a transaction described in this Section 8.4.(c), there shall exist
no Default or Event of Default and (ii) that upon completion of a transaction
described in this Section 8.4.(c), the Subsidiary to which the Borrower's assets
are sold, leased, transferred or otherwise disposed shall be a Restricted
Subsidiary;
(d) The Borrower may merge with any other corporation, provided that
the Borrower shall be the surviving corporation and shall be able to incur at
least $1.00 of Funded Debt under the provisions of this Agreement;
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(e) The Borrower or any of its Restricted Subsidiaries may sell assets
to any Person provided that the Borrower or such Restricted Subsidiary is
obligated to lease such assets from such Person within one hundred and eighty
(180) days provided, however, that the aggregate book value of such assets,
together with the aggregate book value of all other assets sold in all such
transactions during the then previous twelve-month period shall not exceed an
aggregate amount greater than 15% of Consolidated Net Worth determined by
reference to the then most recent audited Financial Report; and
(f) The Borrower and its Subsidiaries may transfer the assets which
constitute their solid fiber partition division to the Sonoco Joint Venture.
SECTION 8.5. TRANSACTIONS WITH AFFILIATES.
The Borrower will not, and will not permit any Restricted Subsidiary
to, enter into or be a party to any transaction or arrangement with any
Affiliate (including without limitation, the purchase from, sale to or exchange
of property with, or the rendering of any service by or for, any Affiliates),
except in the ordinary course of and pursuant to the reasonable requirements of
the Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than such party would
obtain in a comparable arm's-length transaction with a Person other than an
Affiliate.
SECTION 8.6. NATURE OF BUSINESS.
Neither the Borrower nor any Restricted Subsidiary will engage in any
business if, as a result, the general nature of the business, taken on a
consolidated basis, which would then be engaged in by the Borrower and its
Restricted Subsidiaries would be fundamentally changed from the general nature
of the business engaged in by the Borrower and its Restricted Subsidiaries on
the date of this Agreement, which the parties agree is the manufacture and sale
of paperboard, paperboard and plastic products, other types of packaging
material and similar products and services connected or incidental thereto.
SECTION 8.7. REGULATIONS G, T, U AND X.
The Borrower will not nor will it permit any Subsidiary to take any
action that would result in any non-compliance of the Advances made hereunder
with Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System.
SECTION 8.8. ERISA COMPLIANCE.
Neither the Borrower nor any Subsidiary will incur any Material
"accumulated funding deficiency" within the meaning of Section 302(a)(2) of
ERISA, or any Material liability under Section 4062 of ERISA to the Pension
Benefit Guaranty Corporation ("PBGC") established thereunder in connection with
any Plan.
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SECTION 8.9. LIMITATIONS ON SUBSIDIARIES WHICH ARE NOT RESTRICTED
SUBSIDIARIES.
The Borrower will not allow any Unrestricted Subsidiary:
(a) to own any capital stock or right or option to acquire capital
stock of a Consolidated Company, or own or hold any Lien on any property of any
Consolidated Company; and
(b) to create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to, or suffer to exist any
Indebtedness pursuant to which the lender has recourse to any Consolidated
Company or to any of the assets of any Consolidated Company ("Recourse Debt")
other than Recourse Debt which, when aggregated (without duplication) with the
outstanding Recourse Debt of all the Unrestricted Subsidiaries, does not exceed
15% of the Total Capitalization at the end of each fiscal quarter.
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ARTICLE 9. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the following
specified events (each an "Event of Default"):
SECTION 9.1. PAYMENTS.
Borrower shall fail to make promptly when due (including, without
limitation, by mandatory prepayment) any principal payment with respect to the
Loans, or Borrower shall fail to make any payment of interest, fee or other
amount payable hereunder within three (3) Business Days of the due date thereof;
SECTION 9.2. COVENANTS WITHOUT NOTICE.
Borrower shall fail to observe or perform any covenant or agreement
contained in Sections 7.7.(a), (b), (c) and (d), Section 7.10 or Article 8.;
SECTION 9.3. OTHER COVENANTS.
Borrower shall fail to observe or perform any covenant or agreement
contained in this Agreement, other than those referred to in Sections 9.1. and
9.2., and such failure shall remain unremedied for 30 days after the earlier of
(i) an Executive Officer of the Borrower obtaining knowledge thereof, or (ii)
written notice thereof shall have been given to Borrower by Agent or any Lender;
SECTION 9.4. REPRESENTATIONS.
Any representation or warranty made or deemed to be made by Borrower or
any other Consolidated Company or by any of its officers under this Agreement or
any other Credit Document (including the Schedules attached thereto), or any
certificate or other document submitted to the Agent or the Lenders by any such
Person pursuant to the terms of this Agreement or any other Credit Document,
shall be incorrect in any material respect when made or deemed to be made or
submitted;
SECTION 9.5. NON-PAYMENTS OF OTHER INDEBTEDNESS.
Any Consolidated Company shall fail to make when due (whether at stated
maturity, by acceleration, on demand or otherwise, and after giving effect to
any applicable grace period) any payment of principal of or interest on any
Indebtedness (other than the Obligations) exceeding $10,000,000 individually or
in the aggregate;
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SECTION 9.6. DEFAULTS UNDER OTHER AGREEMENTS.
Any Consolidated Company shall fail to observe or perform within any
applicable grace period any covenants or agreements contained in any agreements
or instruments relating to any of its Indebtedness exceeding $10,000,000
individually or in the aggregate, or any other event shall occur if the effect
of such failure or other event is to accelerate, or to permit the holder of such
Indebtedness or any other Person to accelerate, the maturity of such
Indebtedness; or any such Indebtedness shall be required to be prepaid (other
than by a regularly scheduled required prepayment) in whole or in part prior to
its stated maturity;
SECTION 9.7. BANKRUPTCY.
Borrower or any other Consolidated Company shall commence a voluntary
case concerning itself under the Bankruptcy Code or applicable foreign
bankruptcy laws; or an involuntary case for bankruptcy is commenced against any
Consolidated Company and the petition is not controverted within 30 days, or is
not dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) or similar official under applicable foreign
bankruptcy laws 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 which remains undismissed for a period of 60 days; or any
Consolidated Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or 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 60 days; or any Consolidated Company makes a general assignment for
the benefit of creditors; or any Consolidated Company shall fail to pay, or
shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; or any Consolidated Company shall call a meeting
of its creditors with a view to arranging a composition or adjustment of its
debts; or any Consolidated Company shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing; or any
corporate action is taken by any Consolidated Company for the purpose of
effecting any of the foregoing;
SECTION 9.8. ERISA.
A Plan of a Consolidated Company or a Plan subject to Title IV of ERISA
of any of its ERISA Affiliates
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(i) shall fail to be funded in accordance with the minimum funding
standard required by applicable law, the terms of such Plan,
Section 412 of the Tax Code or Section 302 of ERISA for any
plan year or a waiver of such standard is sought or granted
with respect to such Plan under applicable law, the terms of
such Plan or Section 412 of the Tax Code or Section 303 of
ERISA; or
(ii) is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of
such Plan; or
(iii) shall require a Consolidated Company to provide security under
applicable law, the terms of such Plan, Section 401 or 412 of
the Tax Code or Section 306 or 307 of ERISA; or
(iv) results in a liability to a Consolidated Company under
applicable law, the terms of such Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC or a Plan that would have a Materially Adverse Effect.
SECTION 9.9. MONEY JUDGMENT.
Judgments or orders for the payment of money in excess of $10,000,000
individually or in the aggregate or otherwise having a Materially Adverse Effect
shall be rendered against Borrower or any other Consolidated Company and such
judgment or order shall continue unsatisfied (in the case of a money judgment)
and in effect for a period of 30 days during which execution shall not be
effectively stayed or deferred (whether by action of a court, by agreement or
otherwise);
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SECTION 9.10. DEFAULT UNDER OTHER CREDIT DOCUMENTS.
There shall exist or occur any "Event of Default" as provided under the
terms of any Credit Document, or any Credit Document ceases to be in full force
and effect or the validity or enforceability thereof is disaffirmed by or on
behalf of Borrower or any other Consolidated Company, or at any time it is or
becomes unlawful for Borrower or any other Consolidated Company to perform or
comply with its obligations under any Credit Document, or the obligations of
Borrower or any other Consolidated Company under any Credit Document are not or
cease to be legal, valid and binding on Borrower or any such Consolidated
Company;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Agent may, and upon the written or telex request
of the Required Lenders, shall, by written notice to Borrower, take any or all
of the following actions, without prejudice to the rights of the Agent, any
Lender or the holder of any Note to enforce its claims against Borrower or any
other Consolidated Company: (i) declare all Commitments terminated, whereupon
the Commitments of each Lender shall terminate immediately and any facility fee
shall forthwith become due and payable without any other notice of any kind;
(ii) declare the principal of and any accrued interest on the Loans, and all
other Obligations owing hereunder to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided, that, if
an Event of Default specified in Section 9.7. shall occur, the result which
would occur upon the giving of written notice by the Agent to any Consolidated
Company, as specified in clauses (i) and (ii) above, shall occur automatically
without the giving of any such notice, and (iii) may exercise any other rights
or remedies available under the Credit Documents, at law or in equity.
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ARTICLE 10. THE AGENT
SECTION 10.1. APPOINTMENT OF AGENT.
Each Lender hereby designates SunTrust as Agent to administer all
matters concerning the Loans and to act as herein specified. Each Lender hereby
irrevocably authorizes, and each holder of any Note by the acceptance of a Note
shall be deemed irrevocably to authorize, the Agent 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 10.2. AUTHORIZATION OF AGENT WITH RESPECT TO THE SECURITY
DOCUMENTS.
(a) Each Lender hereby authorizes the Agent to enter into any Security
Documents, and to take all action contemplated thereby. All rights and remedies
under any 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 any 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 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.
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SECTION 10.3. 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 10.4. 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
Consolidated Companies in connection with the taking or not taking of any action
in connection herewith, and (ii) its own appraisal of the creditworthiness of
the Consolidated Companies, 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 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 Notes, or any
other documents contemplated hereby or thereby, or the financial condition of
the Consolidated Companies, or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Agreement, the Notes, or the other documents contemplated hereby or
thereby, or the financial condition of the Consolidated Companies, or the
existence or possible existence of any Default or Event of Default.
SECTION 10.5. 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 in any Person
by reason of so refraining. Without limiting the
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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 10.6. 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 Consolidated
Company), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 10.7. INDEMNIFICATION OF AGENT.
To the extent the Agent is not reimbursed and indemnified by the
Consolidated Companies, each Lender will reimburse and indemnify the Agent,
ratably according to the respective amounts of the Loans outstanding under all
Facilities (or if no amounts are outstanding, ratably in accordance with the
Total Commitments), in either case, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
the Agent 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.
SECTION 10.8. THE AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to lend under this Agreement, the Loans
made by it and the Notes issued to it, the Agent shall have the same rights and
powers hereunder as any other Lender or holder of a Note and may exercise the
same as though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any Affiliate of the Consolidated
Companies as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Consolidated Companies for services
in connection with this Agreement and otherwise without having to account for
the same to the Lenders.
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SECTION 10.9. HOLDERS OF NOTES.
The Agent may deem and treat the payee of any Note as the owner thereof
for all purposes hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with the Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
SECTION 10.10. SUCCESSOR AGENT.
(a) The Agent may resign at any time by giving written notice thereof
to the Lenders and Borrower and may be removed at any time with or without cause
by the Required Lenders; provided, however, the Agent 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 Borrower's prior written
approval. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 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 Borrower's prior written approval,
which shall be a bank which maintains an office in the United States, or a
commercial bank organized under the laws of the United States of America or any
State thereof, or any Affiliate of such bank, having a combined capital and
surplus of at least $100,000,000. In the event that the Agent is no longer a
Lender hereunder, the Agent shall promptly 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 10. 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.
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ARTICLE 11. MISCELLANEOUS
SECTION 11.1. NOTICES.
All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, telex, telecopy or similar
teletransmission or writing) and shall be given to such party at its address or
applicable teletransmission number set forth on the signature pages hereof, or
such other address or applicable teletransmission number as such party may
hereafter specify by notice to the Agent and Borrower. Each such notice, request
or other communication shall be effective (i) if given by telex, when such telex
is transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by mail, three Business Days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, (iii) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and the appropriate
confirmation is received, or (iv) if given by any other means (including,
without limitation, by air courier), when delivered or received at the address
specified in this Section; provided that notices to the Agent shall not be
effective until received.
SECTION 11.2. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or the other
Credit Documents, nor consent to any departure by any Consolidated Company
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that no amendment, waiver or consent shall, unless in writing
and signed by all the Lenders do any of the following: (i) waive any of the
conditions specified in Section 5.1. or 5.2., (ii) increase the Commitments or
other contractual obligations to Borrower under this Agreement, (iii) reduce the
principal of, or interest on, the Notes or any fees hereunder, (iv) postpone any
date fixed for the payment in respect of principal of, or interest on, the Notes
or any fees hereunder, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number or identity of
Lenders which shall be required for the Lenders or any of them to take any
action hereunder, (vi) modify the definition of "Required Lenders," (vii)
reduce any obligation owed under or release any Subsidiary Guarantee (except as
required under Section 7.10(d). or (viii) modify this Section 11.2.
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.
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SECTION 11.3. NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent, any Lender or any holder
of a Note in exercising any right or remedy hereunder or under any other Credit
Document, and no course of dealing between any Consolidated Company and the
Agent, any Lender or the holder of any Note shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the 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 which the Agent, any Lender or the holder of any Note would
otherwise have. No notice to or demand on any Consolidated Company not required
hereunder or under any other Credit Document in any case shall entitle any
Consolidated Company to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent, the
Lenders or the holder of any Note to any other or further action in any
circumstances without notice or demand.
SECTION 11.4. PAYMENT OF EXPENSES, ETC.
Borrower shall:
(i) whether or not the transactions hereby contemplated are
consummated, pay all reasonable, out-of-pocket costs and
expenses of the Agent in connection with the preparation,
execution and delivery of, preservation of rights under,
enforcement of, and, after a Default or Event of Default or,
upon the request of the Borrower, 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
reasonable disbursements and charges of counsel), for any of
the Lenders;
(ii) subject, in the case of certain Taxes, to the applicable
provisions of Section 4.8.(b), pay and hold each of the
Lenders harmless from and against any and all present and
future stamp, documentary, and other similar Taxes with
respect to this Agreement, the Notes and any other Credit
Documents, any collateral described therein, or any payments
due thereunder, and save each Lender harmless
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from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such Taxes; and
(iii) indemnify the Agent and each Lender, and their respective
officers, directors, employees, representatives and agents
from, and hold each of them harmless against, any and all
costs, losses, liabilities, claims, damages or expenses
incurred by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee") arising out of
or by reason of any investigation, litigation or other
proceeding related to any actual or proposed use of the
proceeds of any of the Loans or any Consolidated Company
entering into and performing of the Agreement, the Notes, or
the other Credit Documents, including, without limitation, the
reasonable fees actually incurred and disbursements of counsel
incurred in connection with any such investigation, litigation
or other proceeding; provided, however, Borrower shall not be
obligated to indemnify any Indemnitee for any of the foregoing
arising out of such Indemnitee's gross negligence or willful
misconduct;
(iv) without limiting the indemnities set forth in subsection (iii)
above, indemnify each Indemnitee for any and all expenses and
costs (including without limitation, remedial, removal,
response, abatement, cleanup, investigative, closure and
monitoring costs), losses, claims (including claims for
contribution or indemnity and including the cost of
investigating or defending any claim and whether or not such
claim is ultimately defeated, and whether such claim arose
before, during or after any Consolidated Company'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
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documents.
If and to the extent that the obligations of Borrower under this
Section 11.4. are unenforceable for any reason, Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
SECTION 11.5. RIGHT OF SETOFF.
In addition to and not in limitation of all rights of offset that any
Lender or other holder of a Note may have under applicable law, each Lender or
other holder of a Note shall, upon the occurrence and during the continuation of
any Event of Default and whether or not such Lender or such holder has made any
demand or any Consolidated Company's obligations have matured, have the right to
appropriate and apply to the payment of any Consolidated Company's obligations
hereunder and under the other Credit Documents, all deposits of any Consolidated
Company (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 Consolidated Company, whether or not
related to this Agreement or any transaction hereunder.
SECTION 11.6. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto, provided that Borrower may not assign or transfer any of its interest
hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or for the
account of, any of its branch offices or the office of an Affiliate of such
Lender.
(c) Each Lender may assign all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it and the Notes held by it) to
any financial institution; provided, however, that (i) the Agent and, except
during the continuance of a Default or Event of Default, the Borrower must give
their prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed) unless such assignment is to an Affiliate of
the assigning Lender, (ii) the amount of the 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 an amount equal to $10,000,000 or greater integral multiplies
thereof, and (iii) the parties to each such assignment shall execute and deliver
to the Agent an Assignment and Acceptance, together with the Note or Notes
subject to such assignment and, unless such assignment is to an Affiliate of
such Lender, a processing and recordation fee of $2,500.
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Borrower 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. Within five (5)
Business Days after receipt of the notice and the Assignment and Acceptance,
Borrower, at its own expense, shall execute and deliver to the Agent, in
exchange for the surrendered Note or Notes, a new Note or Notes to the order of
such assignee in a principal amount equal to the applicable Commitments assumed
by it pursuant to such Assignment and Acceptance and new Note or Notes to the
assigning Lender in the amount of its retained Commitment or Commitments. Such
new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
date of the surrendered Note or Notes which they replace, and shall otherwise be
in substantially the form attached hereto.
(d) Each Lender may sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments in the Loans owing to it and the
Notes held by it), provided, however, that (i) no Lender may sell a
participation in its aggregate Commitments (after giving effect to any permitted
assignment hereof) in an amount in excess of fifty percent (50%) of such
aggregate Commitments, provided, however, sales of participations to an
Affiliate of such Lender shall not be included in such calculation and shall not
require the consent of the Borrower; provided, however, no such maximum amount
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, and (iv) the
participating bank or other entity shall not be entitled to the benefit (except
through its selling Lender) of the cost protection provisions contained in
Article 4. of this Agreement, and (v) Borrower and the Agent and other Lenders
shall continue to deal solely and directly with each Lender in connection with
such Lender's rights and obligations under this Agreement and the other Credit
Documents, and such Lender shall retain the sole right to enforce the
obligations of Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provisions of this Agreement.
(e) Any Lender or participant may, in connection with the assignment or
participation or proposed assignment or participation, pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to Borrower or the other Consolidated Companies furnished
to such Lender by or on behalf of Borrower or any other Consolidated Company.
With respect to any disclosure of confidential, non-public, proprietary
information, such proposed assignee or participant shall
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agree to use the information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the information in
any manner prohibited by any law, including without limitation, the securities
laws of the United States. The proposed participant or assignee shall agree not
to disclose any of such information except as permitted by Section 11.15.
hereof. The proposed participant or assignee shall further agree to return all
documents or other written material and copies thereof received from any Lender,
the Agent or Borrower relating to such confidential information unless otherwise
properly disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of its rights
in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided
that no such assignment shall release the Lender from any of its obligations
hereunder.
(g) If (i) any Taxes referred to in Section 4.8.(b) have been levied or
imposed so as to require withholdings and reductions by the Borrower and payment
by the Borrower of additional amounts to any Lender as a result thereof or any
Lender shall make demand for payment of any material additional amounts as
compensation for increased costs pursuant to Section 4.11., then and in such
event, upon request from the Borrower delivered to such Lender and the Agent,
such Lender shall assign, in accordance with the provisions of Section 11.6.(c),
all of its rights and obligations under this Agreement and the other Credit
Documents to another Lender or other financial institution selected by the
Borrower and consented to by the Agent in consideration for the payment by such
assignee to the Lender of the principal of and interest on the outstanding Loans
accrued to the date of such assignment and the assumption of such Lender's
Revolving Credit Commitment, 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.
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SECTION 11.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT, THE
NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR COURT OF
▇▇▇▇▇▇ COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF GEORGIA OR OF THE
UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS.
(c) THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY, AND
BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(d) Nothing herein shall affect the right of the Agent, any Lender, any
holder of a Note or any Consolidated Company to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against Borrower in any other jurisdiction.
SECTION 11.8. INDEPENDENT NATURE OF LENDERS' RIGHTS.
The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and
enforce its rights pursuant to this Agreement and its Notes, and it shall not be
necessary for any other Lender to be joined as an additional party in any
proceeding for such purpose.
SECTION 11.9. 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
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shall be an original, but all of which shall together constitute one and the
same instrument.
SECTION 11.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the "Effective
Date") on which all of the parties hereto shall have signed a copy hereof
(whether the same or different copies) and shall have delivered the same to the
Agent pursuant to Section 11.1. or, in the case of the Lenders, shall have given
to the Agent written (which may be delivered by facsimile) or telex notice
(actually received) that the same has been signed and mailed to them.
(b) The obligations of Borrower under Sections 4.8.(b), 4.11., 4.13.,
4.14., 4.17. and 11.4. hereof shall survive the payment in full of the Notes
after the 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
Loans hereunder, and the execution and delivery of the Notes.
SECTION 11.11. SEVERABILITY.
In case any provision in or obligation under this Agreement or the
other Credit Documents shall be invalid, illegal or unenforceable, in whole or
in part, in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 11.12. INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or be otherwise within the
limitation of, another covenant, shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
SECTION 11.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR OR TAX
LAWS.
If (i) any preparation of the financial statements referred to in
Section 7.7. hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accounts (or successors
thereto or agencies with similar functions) result in a material change in the
method of calculation of financial covenants, standards or terms found in this
Agreement, (ii) there is any change in Borrower's fiscal quarter or
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fiscal year, or (iii) there is a material change in federal tax laws which
materially affects any of the Consolidated Companies' ability to comply with the
financial covenants, standards or terms found in this Agreement, Borrower and
the Required Lenders agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such changes with the desired result that
the criteria for evaluating any of the Consolidated Companies' financial
condition shall be the same after such changes as if such changes had not been
made. Unless and until such provisions have been so amended, the provisions of
this Agreement shall govern.
SECTION 11.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT.
The headings of the several sections and subsections of this Agreement
are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement. This Agreement, the other
Credit Documents, and the agreements and documents required to be delivered
pursuant to the terms of this Agreement constitute the entire agreement among
the parties hereto and thereto regarding the subject matters hereof and thereof
and supersede all prior agreements, representations and understandings related
to such subject matters.
SECTION 11.15. DISCLOSURE OF CONFIDENTIAL INFORMATION.
The Agent and the Lenders agree to use their best efforts to hold in
confidence and not disclose any written information (other than information (i)
which was publicly known from a source other than the Borrower or a Subsidiary,
at the time of disclosure (except pursuant to disclosure in connection with this
Agreement), (ii) which subsequently becomes publicly known through no act or
omission by them, or (iii) which otherwise becomes known to them, other than
through disclosure by the Borrower or a Subsidiary or by any other Person whom
the Agent or such Lender has reason to believe disclosed such information in
violation of or contrary to the confidentiality requirements or policies of the
Borrower or a Subsidiary) delivered or made available by or on behalf of the
Borrower or any Subsidiary to them (including without limitation any non-public
information obtained pursuant to Section 7.5. or 7.7.) in connection with or
pursuant to this Agreement which is proprietary in nature and clearly marked or
labeled as being confidential information, provided that nothing herein shall
prevent the Agent or any Lender from delivering copies of any financial
statements and other documents delivered to the Agent or such Lender, and
disclosing any other information disclosed to the Agent or such Lender, by or on
behalf of the Borrower or any Subsidiary in connection with or pursuant to this
Agreement to (i) the Agent's or such Lender's directors, officers, employees,
agents and professional consultants, (ii) any other Lender, (iii) any Person to
which such Lender offers to assign its Notes or Commitments or any part thereof
(which Person agrees to be bound by the provisions of this Section 11.15), (iv)
any Person to which such Lender sells or offers to sell a participation in all
or any part of its Notes or Commitments (which Person agrees to be bound by the
provisions of this Section 11.15), (v) any federal
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or state regulatory authority having jurisdiction over the Agent or such Lender,
and (vi) any other Person to which such delivery or disclosure may be necessary
(a) to effect compliance with any law, rule, regulation or order applicable to
the Agent or such Lender, (b) in response to any subpoena or other legal
process, (c) in connection with any litigation to which the Agent or such Lender
is a party or (d) in order to protect such Lender's investment in its Notes.
SECTION 11.16. INTEREST.
In no event shall the amount of interest, and all charges, amounts or
fees contracted for, charged or collected pursuant to this Agreement, the Notes
or the other Credit Documents and deemed to be interest under applicable law
(collectively, "Interest") exceed the highest rate of interest allowed by
applicable law (the "Maximum Rate"), and in the event any such payment is
inadvertently received by any Lender, then the excess sum (the "Excess") shall
be credited as a payment of principal, unless the Borrower shall notify such
Lender in writing that it elects to have the Excess returned forthwith. It is
the express intent hereof that the Borrower not pay and the Lenders not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrower under applicable law. The right to
accelerate maturity of any of the Loans does not include the right to accelerate
any interest that has not otherwise accrued on the date of such acceleration,
and the Agent and the Lenders do not intend to collect any unearned interest in
the event of any such acceleration. All monies paid to the Agent or the Lenders
hereunder or under any of the Notes or the other Credit Documents, whether at
maturity or by prepayment, shall be subject to rebate of unearned interest as
and to the extent required by applicable law. By the execution of this
Agreement, the Borrower covenants, to the fullest extent permitted by law, that
(i) the credit or return of any Excess shall constitute the acceptance by the
Borrower of such Excess, and (ii) the Borrower shall not seek or pursue any
other remedy, legal or equitable, against the Agent or any Lender, based in
whole or in part upon contracting for charging or receiving any Interest in
excess of the Maximum Rate. For the purpose of determining whether or not any
Excess has been contracted for, charged or received by the Agent or any Lender,
all interest at any time contracted for, charged or received from the Borrower
in connection with this Agreement, the Notes or any of the other Credit
Documents shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread in equal parts throughout the full term of the
Commitments. The Borrower, the Agent and each Lender shall, to the maximum
extent permitted under applicable law, (i) characterize any non-principal
payment as an expense, fee or premium rather than as Interest and (ii) exclude
voluntary prepayments and the effects thereof. The provisions of this Section
shall be deemed to be incorporated into each Note and each of the other Credit
Documents (whether or not any provision of this Section is referred to therein).
All such Credit Documents and communications relating to any Interest owed by
the Borrower and all figures set forth therein shall, for the sole purpose of
computing the extent of obligations
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hereunder and under the Notes and the other Credit Documents be automatically
recomputed by the Borrower, and by any court considering the same, to give
effect to the adjustments or credits required by this Section.
[Signatures on Next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Atlanta, Georgia, by their duly authorized
officers as of the day and year first above written.
ROCK-TENN COMPANY
(CORPORATE SEAL) By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title:Senior Vice President, Chief
-------------------------------
Financial Officer and Secretary
Attest:
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Title: Assistant Secretary
-------------------
Address for notice:
Rock-Tenn Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
[Signatures Continued on Next Page]
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SUNTRUST BANK, ATLANTA, AS
AGENT
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Assistant Vice President
-------------------------------
(BANK SEAL)
By:
-------------------------------------
Title:
-------------------------------
Address for notice:
SunTrust Bank Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
[Signatures Continued on Next Page]
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SUNTRUST BANK, ATLANTA, as
LENDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Assistant Vice President
---------------------------
(BANK SEAL) By:
---------------------------------
Title:
---------------------------
Address for notice:
SunTrust Bank Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopy No.: 404/827-6270
Payment Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
REVOLVING CREDIT COMMITMENT $400,000,000
APPLICABLE COMMITMENT PERCENTAGE 100%
SWING LINE COMMITMENT $ 20,000,000
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