1
$100,000,000 TERM LOAN
CREDIT AGREEMENT
dated as of
August 12, 1996
among
SPRINGS INDUSTRIES, INC.
The Banks Listed Herein
and
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
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TABLE OF CONTENTS
CREDIT AGREEMENT
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
SECTION 1.02. Accounting Terms and Determinations
SECTION 1.03. References
SECTION 1.04. Use of Defined Terms
SECTION 1.05. Terminology
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend
SECTION 2.02. Method of Borrowing Loans
SECTION 2.03. Notes
SECTION 2.04. Maturity of Loans
SECTION 2.05. Interest Rates
SECTION 2.06. Fees
SECTION 2.07. Optional Prepayments
SECTION 2.08. Mandatory Prepayments
SECTION 2.09. General Provisions as to Payments
SECTION 2.10. Computation of Interest and Fees
ARTICLE III
CONDITIONS TO CLOSING AND ALL SUBSEQUENT BORROWINGS
SECTION 3.01. Conditions to Closing
SECTION 3.02. Conditions to All Borrowings
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power
SECTION 4.02. Corporate and Governmental Authorization; No Contravention
SECTION 4.03. Binding Effect
SECTION 4.04. Financial Information
SECTION 4.05. No Litigation
SECTION 4.06. Compliance with ERISA
SECTION 4.07. Compliance with Laws; Payment of Taxes
SECTION 4.08. Subsidiaries
SECTION 4.09. Investment Company Act
SECTION 4.10. Public Utility Holding Company Act
SECTION 4.11. Ownership of Property; Liens
SECTION 4.12. No Default
SECTION 4.13. Full Disclosure
SECTION 4.14. Environmental Matters
SECTION 4.15. Capital Stock
SECTION 4.16. Margin Stock
SECTION 4.17. Insolvency
SECTION 4.18. Insurance
ARTICLE V
COVENANTS
SECTION 5.01. Information
SECTION 5.02. Inspection of Property, Books and Records
SECTION 5.03. Leverage Ratio
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SECTION 5.04. Ratio of Consolidated Debt to Consolidated Total Tangible
Capital
SECTION 5.05. Minimum Consolidated Tangible Net Worth
SECTION 5.06. Restricted Payments
SECTION 5.07. Loans or Advances
SECTION 5.08. Investments
SECTION 5.09. Negative Pledge
SECTION 5.10. Maintenance of Existence
SECTION 5.11. Dissolution
SECTION 5.12. Consolidations, Mergers and Sales of Assets
SECTION 5.13. Use of Proceeds
SECTION 5.14. Compliance with Laws; Payment of Taxes
SECTION 5.15. Insurance
SECTION 5.16. Change in Fiscal Year
SECTION 5.17. Maintenance of Property
SECTION 5.18. Environmental Notices
SECTION 5.19. Environmental Matters
SECTION 5.20. Environmental Release
SECTION 5.21. Transactions with Affiliates
SECTION 5.22. Election to Become Guarantors; Release of Guarantors to be
Sold
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default
SECTION 6.02. Notice of Default
ARTICLE VII
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THE AGENT
SECTION 7.01. Appointment; Powers and Immunities
SECTION 7.02. Reliance by Agent
SECTION 7.03. Defaults
SECTION 7.04. Rights of Agent as a Bank
SECTION 7.05. Indemnification
SECTION 7.06 Consequential Damages
SECTION 7.07. Payee of Note Treated as Owner
SECTION 7.08. Nonreliance on Agent and Other Banks
SECTION 7.09. Failure to Act
SECTION 7.10. Resignation or Removal of Agent
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair
SECTION 8.02. Illegality
SECTION 8.03. Increased Cost and Reduced Return
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans
SECTION 8.05. Compensation
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices
SECTION 9.02. No Waivers
SECTION 9.03. Expenses; Documentary Taxes
SECTION 9.04. Indemnification
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SECTION 9.05. Setoff; Sharing of Setoffs
SECTION 9.06. Amendments and Waivers
SECTION 9.07. No Margin Stock Collateral
SECTION 9.08. Successors and Assigns
SECTION 9.09. Confidentiality
SECTION 9.10. Representation by Banks
SECTION 9.11. Obligations Several
SECTION 9.12. Georgia Law
SECTION 9.13. Severability
SECTION 9.14. Interest
SECTION 9.15. Interpretation
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction
SECTION 9.17. Counterparts
SECTION 9.18. Source of Funds -- ERISA
Consolidations, Mergers and Sales of Assets
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EXHIBIT A Form of Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Funding Indemnification Letter
EXHIBIT I Form of Guaranty
EXHIBIT J Form of Contribution Agreement
Schedule 4.04 Financial Information Disclosures
Schedule 4.06 ERISA
Schedule 4.08 Subsidiaries
Schedule 4.14 Environmental Matters
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of August 12, 1996, among SPRINGS
INDUSTRIES, INC., the BANKS listed on the signature pages hereof and WACHOVIA
BANK OF GEORGIA, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this
Section 1.01 shall, for all purposes of this Agreement and any amendment hereto
(except as herein otherwise expressly provided or unless the context otherwise
requires), have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person
(other than a Subsidiary of the relevant Person) of which the relevant Person
owns, directly or indirectly, 20% or more of the common stock or equivalent
equity interests. As used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agent" means Wachovia Bank of Georgia, N.A., a national
banking association organized under the laws of the United States of America,
in its capacity as agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of June 12, 1996, between the Borrower and the Agent
relating to the structure of the Loans, and certain fees from time to time
payable by the Borrower to the Agent, together with all amendments and
supplements thereto. The Agent's Letter Agreement shall not survive the
execution and
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delivery of this Agreement, except for purposes of determining fees pursuant to
Section 2.06(b).
"Agreement" means this Credit Agreement, together with all
amendments and supplements hereto.
"Amortization Date" means the date which is 364 days after the
Closing Date, unless such date is not a Domestic Business Day, in which event
such date shall be the Domestic Business Day immediately preceding such date.
"Applicable Margin" has the meaning set forth in Section
2.05(a).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as
having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate
per annum equal to the higher as of such day of (i) the Prime Rate, or (ii)
one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan to be made as a Base Rate Loan
pursuant to the applicable Notice of Borrowing, Section 2.02(e), or Article
VIII, as applicable.
"Borrower" means Springs Industries, Inc., a South Carolina
corporation, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower at the same time by all of the Banks, pursuant to Article
II. A Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate Loans
or a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans. Each
Borrowing pertaining to a Term Loan Advance after the Drawdown Date for such
Term Loan Advance is a "Refunding Borrowing", and shall consist only of
Refunding Loans.
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"▇▇▇▇▇▇▇ ▇▇▇▇▇" means any nonredeemable capital stock of the
Borrower or any Consolidated Subsidiary (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means August 12, 1996.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Close Family Interests" means ▇▇▇▇ Springs Close and members
of her family, the Close Family Trusts, The Springs Company and Central
Reassurance Corporation.
"Commitment" means, with respect to each Bank, the commitment
of each Bank to make Term Loan Advances in the aggregate amount set forth
opposite the name of such Bank on the signature pages hereof.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Debt" means at any date the Debt of the Borrower
and its Consolidated Subsidiaries, determined on a consolidated basis as of
such date.
"Consolidated Interest Expense" for any period means interest,
whether expensed or capitalized, in respect of Debt of the Borrower or any of
its Consolidated Subsidiaries outstanding during such period.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries determined in
accordance with GAAP on a consolidated basis, but excluding (i) extraordinary
items and (ii) any gains resulting from a write-up of assets, or any earnings
of any Person acquired by the Borrower or any Consolidated Subsidiary in a
pooling of
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interests for any Fiscal Year prior to the Fiscal Year of the date of
measurement.
"Consolidated Net Income Available for Restricted Payments"
means, on any date, an amount equal to the sum of: (i) $40,000,000; plus (or
minus, in case of a deficit) (ii) 100% of Consolidated Net Income for the
period (taken as one accounting period) commencing on April 1, 1995 and
terminating at the end of the last Fiscal Quarter preceding the date of any
proposed Restricted Payment; less (iii) the aggregate amount of all Dividends
paid or declared after April 1, 1995, by the Borrower on any of its Capital
Stock; and less (iv) the excess of (A) the aggregate amount expended, directly
or indirectly, after April 1, 1995, for redemption, purchase, retirement or
other acquisition of any shares of its Capital Stock over (B) the aggregate
amount received after April 1, 1995, from sales of Capital Stock.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Consolidated Tangible Net Worth" means, at any time,
Stockholders' Equity, less the sum of the value, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, prepared in accordance with GAAP, of:
(A) Any surplus resulting from any write-up of
assets subsequent to January 1, 1994;
(B) All assets which would be treated as
intangible assets for balance sheet presentation purposes under GAAP, including
without limitation goodwill (whether representing the excess of cost over book
value of assets acquired, or otherwise), trademarks, tradenames, copyrights,
patents and technologies, and unamortized debt discount and expense;
(C) To the extent not included in (B) of this
definition, any amount at which shares of Capital Stock of the Borrower appear
as an asset on the balance sheet of the Borrower and its Consolidated
Subsidiaries; and
(D) Loans or advances to stockholders, directors,
officers or employees.
"Consolidated Total Tangible Capital" means, at any time, the
sum of (i) Consolidated Tangible Net Worth, and (ii) Consolidated Debt,
provided that for purposes of this definition only, in determining Consolidated
Debt, clauses (vii), (viii) and
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(ix) of the definition of Debt contained in this Agreement shall be
disregarded.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit "J" to be executed by
the Borrower and each of the Guarantors.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under capital
leases, (v) all obligations of such Person to reimburse any bank or other
Person in respect of amounts payable under a banker's acceptance, (vi) all
Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations of such Person to reimburse any bank or
other Person in respect of amounts paid under a standby (but not commercial)
letter of credit or similar instrument (but excluding such reimbursement
obligations pertaining to any variable rate demand bond while they remain
contingent due to there having been no presenting and honoring of a draft under
any such letter of credit or similar instrument), (viii) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, and (ix) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an
Event of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the then highest interest rate (including the Applicable
Margin) which may be applicable to any Loans hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
"Dividends" means for any period the sum of all dividends or
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred
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Stock (other than dividends or other distributions paid or payable in the form
of additional Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia or North Carolina are
authorized by law to close.
"Domestic Subsidiary" means any Subsidiary created under the
laws of the United States of America or any state thereof.
"Drawdown Date", with respect to any Term Loan Advance, has
the meaning set forth in Section 2.01.
"EBITDA" means the sum of the following, calculated on a
consolidated basis in accordance with GAAP for the Borrower and its
Consolidated Subsidiaries at the end of each Fiscal Quarter for such Fiscal
Quarter and the 3 immediately preceding Fiscal Quarters: (i) Consolidated Net
Income; plus (ii) income taxes; plus (iii) Consolidated Interest Expense; plus
(iv) depreciation and amortization expense; and (v) other non-cash charges.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with
an Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any written Environmental Requirement,
including without limitation any complaints, citations, demands or requests
from any
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Environmental Authority or from any other person or entity for correction of
any violation of any Environmental Requirement or any investigations concerning
any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state
and local laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan to be made as a Euro-Dollar
Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.05(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged
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to the Agent on such day on such transactions, as determined by the Agent.
"Fifth Amortization Date Anniversary" means the date which is
the fifth anniversary of the Amortization Date.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Foreign Subsidiary" means any Subsidiary which is not a
Domestic Subsidiary.
"Funding Indemnification Letter" means a letter from the
Borrower to the Agent substantially in the form of Exhibit H, pursuant to which
(i) the Banks and the Borrower shall agree upon the interest rates, amount of
Borrowing and Interest Periods for each portion of the initial funding on the
initial Drawdown Date of the Term Loan Advance to be made on such date which is
to constitute a Euro-Dollar Loan, and (ii) the Borrower shall indemnify the
Banks from any loss or expense arising from the failure to close on the
anticipated Closing Date identified in such letter or the failure to borrow
such Euro-Dollar Loan on such date, unless such failure is caused solely by the
Banks' breach of this Agreement.
"GAAP" means generally accepted accounting principles applied
on a basis consistent with those which, in accordance with Section 1.02, are to
be used in making the calculations for purposes of determining compliance with
the terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral security, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part), provided that
the term Guarantee shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
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"Guarantors" means any one or more or all of the following, as
the context shall require: (i) Springs Window Fashions Division, Inc., a
Delaware corporation, and Dundee ▇▇▇▇▇, Incorporated, a Georgia corporation;
and (ii) any Domestic Subsidiary which elects to become a Guarantor pursuant to
Section 5.22; in each case subject to the provisions of the last sentence of
Section 5.22.
"Guaranty" means the Guaranty Agreement of even date herewith
in substantially the form of Exhibit "I" to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the Loans,
the Notes and all other obligations of the Borrower to the Agent and the Banks
hereunder, including without limitation all principal, interest, fees, costs,
and compensation and indemnification amounts.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. Section 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or
in any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
or (d) pesticides, as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act of 1975, or in any applicable state or local law or regulation,
as each such Act, statute or regulation may be amended from time to time.
"Installment Payment Date" means, for each Term Loan Advance,
the date which is three years and three months after the Amortization Date, and
each date and each anniversary thereof which is three, six, nine and twelve
months thereafter, and on the same day of the month as such date (or on the
first Domestic Business Day thereafter, if such day of the month is not a
Domestic Business Day).
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to paragraph (c below)
which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
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(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the appropriate
subsequent calendar month) shall, subject to paragraph (c) below, end
on the last Euro-Dollar Business Day of the appropriate subsequent
calendar month; and
(c) no Interest Period may be selected which begins before
the Maturity Date and would otherwise end after the Maturity Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period (subject to paragraph (b) below)
which would otherwise end on a day which is not a Domestic Business
Day shall be extended to the next succeeding Domestic Business Day;
and
(b) no Interest Period which begins before the Maturity
Date and would otherwise end after the Maturity Date may be selected.
"Investment" means any investment in any Person other than a
Subsidiary, whether by means of purchase or acquisition of obligations or
securities of such Person, capital contribution to such Person, loan or advance
to such Person, making of a time deposit with such Person, Guarantee or
assumption of any obligation of such Person or otherwise.
"Lending Office" means, as to each Bank, its office located at
its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Leverage Ratio" means the ratio of Consolidated Debt to
EBITDA.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting
a security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For
the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed
to
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own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means a Term Loan Advance, and also means a Base Rate
Loan or Euro-Dollar Loan, and "Loans" means the Term Loan Advances and the Term
Loans, and also means Base Rate Loans or Euro-Dollar Loans, or any one or more
or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the
Contribution Agreement (insofar as it relates to the Borrower), any other
document evidencing, relating to or securing the Loans, and any other document
or instrument delivered from time to time in connection with this Agreement,
the Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.05(c).
"Margin Stock" means "margin stock" as defined in Regulations
G, T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any
of (a) the financial condition, operations, business, properties or prospects
of the Borrower and its Consolidated Subsidiaries taken as a whole, (b) the
rights and remedies of the Agent or the Banks under the Loan Documents, or the
ability of the Borrower to perform its obligations under the Loan Documents to
which it is a party, as applicable, or (c) the legality, validity or
enforceability of any Loan Document.
"Maturity Date" means, for all Loans, the Domestic Business
Day immediately preceding the date which is ten years after the Amortization
Date.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person, after taxes, for such
period, as determined in accordance with GAAP.
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"Net Proceeds of Capital Stock" means any proceeds received by
the Borrower or a Consolidated Subsidiary in respect of the issuance of Capital
Stock, after deducting therefrom all reasonable and customary costs and
expenses incurred by the Borrower or such Consolidated Subsidiary directly in
connection with the issuance of such Capital Stock.
"Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A-1, evidencing the obligation of the
Borrower to repay the Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set
forth in Section 2.05(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by a
member of the Controlled Group for employees of any member of the Controlled
Group or (ii) maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an obligation
to make contributions or has within the preceding 5 plan years made
contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings.
The Prime Rate is but one of several
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20
interest rate bases used by Wachovia. Wachovia lends at interest rates above
and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred
stock issued by such Person which is at any time prior to the Maturity Date
either (i) mandatorily redeemable (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Loan made on the day on which an
outstanding Loan is maturing or a Base Rate Borrowing is being converted to a
Euro-Dollar Borrowing.
"Regulation G" means Regulation G of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Required Banks" means at any time Banks having at least 66
2/3% of the aggregate outstanding principal amount of the sum of the Loans, or
if there are no Loans outstanding, of the Commitments.
"Restricted Payment" means (i) any Dividend on any shares of
the Borrower's Capital stock or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
Capital Stock (except shares acquired upon the conversion thereof into other
shares of its Capital Stock) or (b) any option, warrant or other right to
acquire shares of the Borrower's Capital Stock.
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21
"Stockholders' Equity" means, at any time, the shareholders'
equity of the Borrower and its Consolidated Subsidiaries, as set forth or
reflected on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower or any of its Consolidated
Subsidiaries. Shareholders' equity generally would include, but not be limited
to (i) the par or stated value of all outstanding Capital Stock, (ii) capital
surplus, (iii) retained earnings, and (iv) various deductions such as (A)
purchases of treasury stock, (B) valuation allowances, (C) receivables due from
an employee stock ownership plan, (D) employee stock ownership plan debt
guarantees, and (E) translation adjustments for foreign currency transactions.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower.
"Taxes" has the meaning set forth in Section 2.09(c).
"Term Loan" means the term loans to be made by each Bank
hereunder in the amount of its Commitment, which may consist of up to 3 Term
Loan Advances, and "Term Loans" means, collectively, the Term Loans of all of
the Banks.
"Term Loan Advance" means any initial advance of funds by the
Banks constituting part of the Term Loans, pursuant to Section 2.01.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d).
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits, determined on an accumulated benefit obligation basis,
under such Plan exceeds (ii) the fair market value of all Plan assets allocable
to such benefits, all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the Controlled Group to the PBGC or the Plan under
Title IV of ERISA.
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22
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding
principal amount of its Loans.
"Wachovia" means Wachovia Bank of Georgia, N.A., a national
banking association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and all financial statements required to be delivered hereunder shall be
prepared, in accordance with GAAP, applied on a basis consistent (except for
changes concurred in by the Borrower's independent public accountants or
otherwise required by a change in GAAP) with the most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks unless with respect to any such change
concurred in by the Borrower's independent public accountants or required by
GAAP, in determining compliance with any of the provisions of this Agreement or
any of the other Loan Documents: (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Banks shall so object in writing
within 30 days after the delivery of such financial statements, in either of
which events such calculations shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 5.01 hereof, shall mean
the financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits", "Schedules", "Sections"
and other Subdivisions are references to articles, exhibits, schedules,
sections and other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Loan Documents, unless otherwise defined therein or unless the context shall
require otherwise.
SECTION 1.05. Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the
plural shall include the
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23
singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally
agrees, on the terms and conditions set forth herein, upon not less than 3
Euro-Dollar Business Days (or 2 Domestic Business Days, in the case of a Base
Rate Borrowing) prior written notice (which shall be irrevocable), to make up
to 3 Term Loan Advances to the Borrower in an aggregate amount up to the amount
of the Commitment on a date specified in such notice (such date of any Term
Loan Advance being the "Drawdown Date" for such Term Loan Advance), which
Drawdown Date must (i) be a Euro-Dollar Business Day (or a Domestic Business
Day, in the case of a Base Rate Borrowing), and (ii) occur before the date
which is 364 days after the Closing Date, and thereafter to make Refunding
Loans from time to time before the Maturity Date. Upon the funding of 3 Term
Loan Advances or a lesser number of Term Loan Advances in an aggregate amount
equal to the aggregate Commitments, whichever is applicable, the Commitments
shall terminate. The principal amount of each Term Loan Advance shall be
repaid in 27 consecutive quarterly installments, each in an amount equal to
3.571428% of the original principal amount of such Term Loan Advance, on each
Installment Payment Date, with a final payment of all outstanding principal and
all accrued and unpaid interest on the Maturity Date for such Term Loan
Advance. Principal amounts repaid on Installment Payment Dates may not be
reborrowed, except as Refunding Loans. Each Refunding Borrowing under this
Section shall be in an aggregate principal amount of (i) $2,500,000 or more, in
the case of Euro-Dollar Loans, and (ii) 2,000,000 or more, in the case of Base
Rate Loans, and in each case shall be made from the several Banks ratably in
proportion to their respective Loans outstanding.
SECTION 2.02. Method of Borrowing Loans. (a) If the Borrower
desires that any portion of the initial Term Loan Advance be made as
Euro-Dollar Loans on the Drawdown Date, the Borrower shall execute and deliver
to the Agent a Funding Indemnification Letter and the Banks and the Borrower
shall agree on the interest rates, amounts and Interest Periods with respect
thereto not later than 3 Euro-Dollar Business Days prior to the Drawdown Date
for such initial Term Loan Advance. If and to the extent that no Funding
Indemnification Letter has been so delivered or such agreement as to interest
rates, amounts and Interest Periods has not been reached within such time, the
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24
funding of the initial Term Loan Advance, as well as all subsequent Term Loan
Advances and all Refunding Loans, shall be made as provided below. The
Borrower shall give the Agent notice (a "Notice of Borrowing"), which shall be
substantially in the form of Exhibit E (unless such Borrowing consists solely
of a Refunding Loan, in which case such notice may be telephonic), prior to
11:00 A.M. (Atlanta, Georgia time) at least 1 Domestic Business Day before each
Base Rate Borrowing and at least 3 Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be
Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration
of the Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such Borrowing and such Notice of Borrowing, once received by
the Agent, shall not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time) on
the date of each Borrowing, each Bank shall (except as provided in paragraph (d)
of this Section) (x) as to the initial funding of any Term Loan Advance on the
Drawdown Date for such Term Loan Advance, make available its ratable share of
such Borrowing, in Federal or other funds immediately available in Atlanta,
Georgia, to the Agent at its address determined pursuant to Section 9.01, and
(y) as to all Refunding Loans, make available (by and through the Agent) the
amount of the new Loan by setoff against the amount of the maturing Loan. Unless
the Agent determines that any applicable condition specified in Article III has
not been satisfied, the Agent will make the funds so received from the Banks
available to the Borrower at the Agent's aforesaid address, or effect such
setoff, as applicable. Unless the Agent receives notice from a Bank, at the
Agent's address referred to in or specified pursuant to Section 9.01, no later
than 4:00 P.M. (local time at such address) on the Domestic Business Day before
the date of a Borrowing stating that such Bank will not make a Loan
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25
in connection with such Borrowing, the Agent shall be entitled to assume that
such Bank will make a Loan in connection with such Borrowing and, in reliance
on such assumption, the Agent may (but shall not be obligated to) (A) as to the
initial funding of any Term Loan Advance on the Drawdown Date for such Term
Loan Advance, make available such Bank's ratable share of such Borrowing to the
Borrower for the account of such Bank, or (B) as to all Refunding Loans, effect
the setoff; provided, that the Agent may elect instead to have such funding
made available by Wachovia, and Wachovia hereby agrees to make such funding. If
the Agent or Wachovia makes such Bank's ratable share available to the Borrower
on the Drawdown Date and such Bank does not in fact make its ratable share of
such Borrowing available on such date, the Agent or Wachovia, as the case may
be, shall be entitled to recover such Bank's ratable share from such Bank,
together with interest thereon for each day during the period from the date of
such Borrowing until such sum shall be paid in full at a rate per annum equal
to the rate at which the Agent determines that it obtained (or could have
obtained) overnight Federal funds to cover such amount for each such day during
such period, provided that (i) any such payment by Wachovia of such Bank's
ratable share and interest thereon shall be without prejudice to any rights
that the Borrower may have against such Bank and (ii) until such Bank has paid
its ratable share of such Borrowing, together with interest pursuant to the
foregoing, it will have no interest in or rights with respect to such Borrowing
for any purpose hereunder (but Wachovia shall have such interest and rights, if
it has made such funding available).
(d) Notwithstanding anything to the contrary contained in
this Agreement, no Euro-Dollar Borrowing may be made if there shall have
occurred a Default or an Event of Default, which Default or Event of Default
shall not have been cured or waived.
(e) In the event that a Notice of Borrowing fails to specify
whether the Loans comprising such Borrowing are to be Base Rate Loans or
Euro-Dollar Loans, such Loans shall be made as Base Rate Loans. If the
Borrower is otherwise entitled under this Agreement to repay any Loans maturing
at the end of an Interest Period applicable thereto with the proceeds of a new
Borrowing, and the Borrower fails to repay such Loans using its own moneys and
fails to give a Notice of Borrowing in connection with such new Borrowing, a
new Borrowing shall be deemed to be made on the date such Loans mature in an
amount equal to the principal amount of the Loans so maturing, and the Loans
comprising such new Borrowing shall be Base Rate Loans.
SECTION 2.03. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of such Bank for the
account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment.
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26
(b) Upon receipt of each Bank's Notes pursuant to Section 3.01,
the Agent shall deliver such Notes to such Bank. Each Bank shall record, and
prior to any transfer of its Notes shall endorse on the schedules forming a
part thereof appropriate notations to evidence, each Term Loan Advance and the
Drawdown Date therefor, and the date, amount and maturity of, and effective
interest rate for, each Loan made by it, the date and amount of each payment of
principal made by the Borrower with respect thereto, and such schedules of each
such Bank's Notes shall constitute rebuttable presumptive evidence of the
respective principal amounts owing and unpaid on such Bank's Notes; provided
that the failure of any Bank to make any such recordation or endorsement shall
not affect the obligation of the Borrower hereunder or under the Notes or the
ability of any Bank to assign its Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Notes and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.04. Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing,
subject to the Borrower's right to obtain Refunding Loans pursuant hereto for
amounts not required to be paid on the Installment Payment Dates.
SECTION 2.05. Interest Rates. (a) "Applicable Margin" means:
(i) for the period from the Closing Date until the first Performance
Pricing Determination Date which occurs after the Closing Date, (x) for the
Base Rate 0.0%, and (y) for the Euro-Dollar Rate 0.3125%.
(ii) for the period from and after the first Performance Pricing
Determination Date which occurs after the Closing Date until but not including
the Fifth Amortization Date Anniversary, for each type of Loan, the percentage
determined on each Performance Pricing Determination Date by reference to the
tables set forth below as to such type of Loan and the Leverage Ratio for the
quarterly or annual period ending immediately prior to such Performance Pricing
Determination Date:
Leverage Ratio Base Rate Euro-Dollar Rate
-------------- --------- ----------------
>4.0 to 1.0 0.0% 0.625%
>3.50 to 1.0 but
[4.0 to 1.0 0.0% 0.5%
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27
[3.50 to 1.0 0.0% 0.3125%
(iii) from and after the Fifth Amortization Date Anniversary, for each
type of Loan, the percentage determined on each Performance Pricing
Determination Date (beginning with the first Performance Pricing Determination
Date which occurs after the Fifth Amortization Date Anniversary) by reference
to the tables set forth below as to such type of Loan and the Leverage Ratio
for the quarterly or annual period ending immediately prior to such Performance
Pricing Determination Date:
Leverage Ratio Base Rate Euro-Dollar Rate
-------------- --------- ----------------
>4.0 to 1.0 0.0% 0.75%
>3.50 to 1.0 but
[4.0 to 1.0 0.0% 0.625%
[3.50 to 1.0 0.0% 0.4375%
In determining interest for purposes of this Section 2.05, the
Borrower and the Banks shall refer to the Borrower's most recent consolidated
quarterly and annual (as the case may be) financial statements referred to in
Section 4.04(a) or delivered pursuant to Section 5.01(a) or (b), as the case
may be. If such financial statements require a change in interest pursuant to
this Section 2.05, the Borrower shall deliver to the Agent, along with such
financial statements, a notice to that effect, which notice shall set forth in
reasonable detail the calculations establishing the required change.
The date of delivery of such financial statements and notice is the
"Performance Pricing Determination Date." Any such required change in interest
shall become effective on each Performance Pricing Determination Date which
requires such change, except that any change required on the first Performance
Pricing Determination Date which occurs after the Fifth Amortization Date
Anniversary shall become effective on the Fifth Amortization Date Anniversary
(and if the Borrower has paid any interest or fees during the period from the
Fifth Amortization Date Anniversary to the first Performance Pricing
Determination Date which occurs after the Fifth Amortization Date Anniversary,
the Borrower shall pay to the Agent, for the account of the Banks, as to
interest, and for the account of the Agent, as to fees, an amount equal to the
difference in the interest or fees accrued through the last date of such
payment at such increased rate and the amount of interest or fees actually paid
on the last date of such payment), and any such change required on any
Performance Pricing Determination Date shall be in effect until the next
Performance Pricing Determination Date, provided that:
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(i) for Euro-Dollar Loans, changes in interest shall only be effective for
Interest Periods commencing on or after the Performance Pricing Determination
Date; and (ii) no interest shall be decreased pursuant to this Section 2.05 if
a Default is in existence on the Performance Pricing Determination Date.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period.
Such interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than 3 months, at intervals of 3 months
after the first day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Euro-Dollar Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the Interest Period of such Euro-Dollar Loan, the
rate per annum determined on the basis of the offered rate for deposits in
Dollars of amounts equal or comparable to the principal amount of such
Euro-Dollar Loan offered for a term comparable to such Interest Period, which
rates appear on the Telerate Screen Page 3750 (or any successor page therefor
published on the Telerate Screen) as of 11:00 A.M., London time, 2 Euro-Dollar
Business Days prior to the first day of such Interest Period, provided that if
no such offered rates appear on such page, the "London Interbank Offered Rate"
for such Interest Period will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100th of 1%) of rates quoted by not less than 2
major banks in New York City, selected by the Agent, at approximately 10:00
A.M., New York City time, 2 Euro-Dollar Business Days prior to the first day of
such Interest
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29
Period, for deposits in Dollars offered to leading European banks for a period
comparable to such Interest Period in an amount comparable to the principal
amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents). The Adjusted
London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.
(d) The Agent shall determine each interest rate applicable to
the Loans hereunder. The Agent shall give prompt notice to the Borrower and
the Banks by telecopier of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of a
Default, the principal amount of the Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate.
SECTION 2.06. Fees. (a) The Borrower shall pay to the Agent,
for the ratable account of each Bank, upon each Term Loan Advance (other than
merely as Refunding Loans), a funding fee in the amount of 0.125% of the
aggregate amount of such Term Loan Advance.
(b) The Borrower shall pay to the Agent, for the ratable
account of each Bank, a commitment fee, calculated on the average daily amount
of the Unused Commitments, at the rate of 0.05% per annum. Such commitment fees
shall accrue from and including the Closing Date to but excluding the date
which is 365 days after the Closing Date and shall be payable on September 30,
1996, December 31, 1996, March 31, 1997, June 30, 1997, and on the date which
is 364 days after the Closing Date, as applicable.
(c) The Borrower shall pay to the Agent, for the account
and sole benefit of the Agent, such fees and other amounts at such times as set
forth in the Agent's Letter Agreement.
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30
SECTION 2.07. Optional Prepayments. (a) The Borrower may,
upon at least (i) 1 Domestic Business Days' notice to the Agent, prepay any
Base Rate Borrowing, and (ii) 3 Euro-Dollar Business Days' notice to the Agent,
prepay any Euro-Dollar Borrowing, in each case in whole at any time or from
time to time in part (subject, however, to the provisions of paragraph (b)
below as to prepayments of Euro-Dollar Borrowings), in amounts aggregating at
least $5,000,000 or any larger multiple of $1,000,000 by paying the principal
amount to be prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied (A) to prepay
ratably the Base Rate Loans of the several Banks included in such Base Rate
Borrowing or the Euro-Dollar Loans of the several Banks included in such
Euro-Dollar Borrowing, as applicable, and (B) to installments due on the
Maturity Date and on Installment Payment Dates in the inverse order of
maturity, and such amounts may not be reborrowed.
(b) The Borrower may prepay all or any portion of the
principal amount of any Euro-Dollar Loan prior to the maturity thereof, subject
to the payment of any compensation required by Section 8.05(a), if such payment
is on a date other than the last day of an Interest Period for such Euro-Dollar
Loan.
(c) Upon receipt of a notice of prepayment pursuant to
this Section 2.07, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's ratable share of such prepayment and such notice,
once received by the Agent, shall not thereafter be revocable by the Borrower.
SECTION 2.08. Mandatory Prepayments. If (i) the Close Family
Interests shall own outstanding shares of the voting stock of the Borrower
having less than 51% of the voting power on all matters; or (ii) as of any date
a majority of the Board of Directors of the Borrower consists of individuals
who were not either (A) directors of the Borrower as of the corresponding date
of the previous year, (B) selected or nominated to become directors by the
Board of Directors of the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to become directors by
the Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A) and individuals described in clause (B);
then, in any such event, the Borrower shall prepay all outstanding principal
and accrued and unpaid interest and fees immediately following receipt of a
notice from the Agent (acting at the direction of the Required Banks) making
demand therefor.
SECTION 2.09. General Provisions as to Payments. (a) The
Borrower shall make each payment of principal of, and
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interest on, the Loans and of fees hereunder, not later than 1:00 P.M.
(Atlanta, Georgia time) on the date when due, in Federal or other funds
immediately available in Atlanta, Georgia, to the Agent at its address referred
to in Section 9.01. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for the account of the
Banks.
(b) Whenever any payment of principal of, or interest on, the
Base Rate Loans or of fees hereunder shall be due on a day which is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all
other amounts to be made by the Borrower pursuant to this Agreement with
respect to any Loan or fee relating thereto shall be paid without deduction
for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein excluding
in the case of each Bank, taxes imposed on or measured by its net income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank (as the case may be) is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Bank's applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, imposts,
levies, duties, deductions or withholdings of any nature being "Taxes"). In
the event that the Borrower is required by applicable law to make any such
withholding or deduction of Taxes with respect to any Loan or fee or other
amount, the Borrower shall pay such deduction or withholding to the applicable
taxing authority, shall promptly furnish to any Bank in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such Bank additional amounts as may be necessary
in order that the amount received by such Bank after the required withholding
or other payment shall equal the amount such Bank would have received had no
such withholding or other payment been made. If the Borrower fails to provide
such original or certified copy of a receipt evidencing payment of Taxes, the
Borrower hereby agrees to compensate such Bank for, and indemnify them with
respect to, the tax consequences of the Borrower's failure to provide evidence
of tax payments or tax exemption.
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Each Bank which is not organized under the laws of the United
States or any state thereof agrees, as soon as practicable after receipt by it
of a request by the Borrower to do so, to file all appropriate forms and take
other appropriate action to obtain a certificate or other appropriate document
from the appropriate governmental authority in the jurisdiction imposing the
relevant Taxes, establishing that it is entitled to receive payments of
principal and interest under this Agreement and the Notes without deduction and
free from withholding of any Taxes imposed by such jurisdiction; provided that
if it is unable, for any reason, to establish such exemption, or to file such
forms and, in any event, during such period of time as such request for
exemption is pending, the Borrower shall nonetheless remain obligated under the
terms of the immediately preceding paragraph.
In the event that the Borrower seeks a refund of any Taxes
paid by the Borrower pursuant to this Section 2.09(c), the applicable Bank
shall use its reasonable efforts to assist the Borrower in connection
therewith, at the Borrower's expense. In the event any Bank receives a refund
of any Taxes paid by the Borrower pursuant to this Section 2.09(c), it will pay
to the Borrower the amount of such refund promptly upon receipt thereof;
provided that if at any time thereafter it is required to return such refund,
the Borrower shall promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.09(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment
in full or cancellation of the Notes.
SECTION 2.10. Computation of Interest and Fees. Interest on
Base Rate Loans based on the Base Rate shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed (including the first
day but excluding the last day). Interest on Base Rate Loans based on
Euro-Dollar Loans shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed, calculated as to each Interest Period
from and including the first day thereof to but excluding the last day thereof.
Fees payable under the Agent's Letter Agreement shall be computed on the basis
of a year of 360 days and paid for the actual number of days elapsed (including
the first day but excluding the last day).
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ARTICLE III
CONDITIONS TO CLOSING AND ALL SUBSEQUENT BORROWINGS
SECTION 3.01. Conditions to Closing. The Closing Date
hereunder shall not occur until receipt by the Agent of the following (as to
the documents described in paragraphs (a),(c), (d) and (e) below, in sufficient
number of counterparts for delivery of a counterpart to each Bank and retention
of one counterpart by the Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a
facsimile transmission stating that such party has duly executed a
counterpart of this Agreement and sent such counterpart to the Agent;
(b) a duly executed Note;
(c) an opinion letter (together with any opinions of
local counsel relied on therein) of the General Counsel or Associate
General Counsel of the Borrower, dated as of the Closing Date,
substantially in the form of Exhibit B and covering such additional
matters relating to the transactions contemplated hereby as the Agent
or any Bank may reasonably request;
(d) an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special
counsel for the Agent, dated as of the Closing Date, substantially in
the form of Exhibit C and covering such additional matters relating to
the transactions contemplated hereby as the Agent may reasonably
request;
(e) a certificate (the "Closing Certificate")
substantially in the form of Exhibit G), dated as of the Closing Date,
signed by a principal financial officer of the Borrower, to the effect
that (i) no Default has occurred and is continuing on the Closing Date
and (ii) the representations and warranties of the Borrower contained
in Article IV are true on and as of the Closing Date;
(f) all documents which the Agent or any Bank may
reasonably request relating to the existence of the Borrower and each
Guarantor, the corporate authority for and the validity of this
Agreement, the Notes, the Guaranty and the Contribution Agreement, and
any other matters relevant hereto, all in form and substance
satisfactory to the Agent, including, without limitation, a
certificate of incumbency of the Borrower and each Guarantor, signed
by the Secretary or an Assistant Secretary of the Borrower and each
Guarantor, certifying as to the names, true signatures and
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incumbency of the officer or officers of the Borrower or such
Guarantor authorized to execute and deliver the Loan Documents, or the
Guaranty and the Contribution Agreement, as applicable, and certified
copies of the following items: (i) the Borrower's and each Guarantor's
Certificate of Incorporation, (ii) the Borrower's and each Guarantor's
Bylaws, (iii) certificates of the Secretary of State of the State of
South Carolina as to the good standing of the Borrower as a South
Carolina corporation, and of the Secretary of State of Delaware as to
the good standing of Springs Window Fashions Division, Inc. as a
Delaware corporation, and of the Secretary of State of Georgia as to
the good standing of Dundee ▇▇▇▇▇, Incorporated as a Georgia
corporation and (iv) the action taken by the Board of Directors of the
Borrower and each Guarantor authorizing the Borrower's and each
Guarantor's execution, delivery and performance of this Agreement, the
Notes and the other Loan Documents to which the Borrower is a party,
and of the Guaranty and the Contribution Agreement by the Guarantors;
(g) the Guaranty and the Contribution Agreement, each duly
executed by each of the Guarantors; and
(h) receipt of all fees required to be paid on the
Closing Date pursuant to the Agent's Letter Agreement.
SECTION 3.02. Conditions to All Borrowings. The obligation of
each Bank to make a Loan on the occasion of each Borrowing is subject to the
satisfaction of the following conditions except as expressly provided in the
last sentence of this Section 3.02:
(a) receipt by the Agent of a Notice of Borrowing, unless
all of the funding of the initial Term Loan Advance on the Drawdown
Date for such Term Loan Advance is to consist of Euro-Dollars
Borrowings, and a Funding Indemnification Letter shall have been
received, and the requirements of the first sentence of Section
2.02(a) have been satisfied;
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of
the Borrower contained in Article IV of this Agreement other than as
set forth in Section 4.04(b) shall be true on and as of the date of
such Borrowing; and
(d) the fact that, immediately after such Borrowing, the
conditions set forth in clauses (i) and (ii) of Section 2.01 shall
have been satisfied.
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Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in paragraphs (b), (c) and (d) of this Section; provided that
if such Borrowing consists solely of a Refunding Loan, such Borrowing shall not
be deemed to be such a representation and warranty.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, except where such lack of qualification would not
have a Material Adverse Effect, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents (i) are within the Borrower's
corporate powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a
valid and binding agreement of the Borrower enforceable in accordance with its
terms, and the Notes and the other Loan Documents, when executed and delivered
in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms, provided that the enforceability hereof and thereof is subject in each
case to general principles of equity and to bankruptcy, insolvency and similar
laws affecting the enforcement of creditors' rights generally.
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36
SECTION 4.04. Financial Information. (a) The consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of December
30, 1995, and the related consolidated statements of income, shareholders'
equity and cash flows for the Fiscal Year then ended, reported on by Deloitte &
Touche LLP, copies of which have been delivered to each of the Banks, and the
unaudited consolidated financial statements of the Borrower for the interim
period ended March 30, 1996, copies of which have been delivered to each of the
Banks, fairly present, in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such dates and
their consolidated results of operations and cash flows for such periods
stated.
(b) Since December 30, 1995, there has been no event,
act, condition or occurrence having a Material Adverse Effect. In reliance upon
the information disclosed by the Borrower as set forth in Schedule 4.04 hereto,
the Lenders acknowledge that the matters so disclosed in Schedule 4.04 shall
not be construed as having a Material Adverse Effect.
SECTION 4.05. No Litigation. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower threatened, against or
affecting the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which could have a
Material Adverse Effect or which in any manner draws into question the
validity of or could impair the ability of the Borrower to perform its
obligations under, this Agreement, the Notes or any of the other Loan
Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and
each member of the Controlled Group have fulfilled their obligations under the
minimum funding standards of ERISA and the Code with respect to each Plan and
are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code except where any such non-compliance would not
result in a Material Adverse Effect, and, except as set forth in Schedule 4.06,
have not incurred any liability to the PBGC or a Plan under Title IV of ERISA.
(b) Except as set forth in Schedule 4.06, neither the Borrower nor
any member of the Controlled Group has incurred any withdrawal liability with
respect to any Multiemployer Plan under Title IV of ERISA, and no such liability
is expected to be incurred.
SECTION 4.07. Compliance with Laws; Payment of Taxes. The
Borrower and its Subsidiaries are in material compliance with all applicable
laws, regulations and similar requirements of
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governmental authorities, except where such compliance is being contested in
good faith through appropriate proceedings. There have been filed on behalf of
the Borrower and its Subsidiaries all Federal, state and local income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of the Borrower or any Subsidiary have been paid. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate. United States income tax returns of the Borrower and its
Subsidiaries have been examined and closed through the Fiscal Year ended 1989.
SECTION 4.08. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its
business, such qualification is necessary, except where such lack of
qualification would not have a Material Adverse Effect, and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The Borrower has no
Subsidiaries except for those Subsidiaries listed on Schedule 4.08, which
accurately sets forth each such Subsidiary's complete name and jurisdiction of
incorporation.
SECTION 4.09. Investment Company Act. Neither the Borrower
nor any of its Subsidiaries is an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of the
Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is
subject to any Lien except as permitted in Section 5.09.
SECTION 4.12. No Default. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound, which
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default could have or cause a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore
furnished by the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Agent or any
Bank will be, true, accurate and complete in every material respect or based on
reasonable estimates on the date as of which such information is stated or
certified. The Borrower has disclosed to the Banks in writing any and all
facts which could have or cause a Material Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Neither the Borrower
nor any Subsidiary is subject to any Environmental Liability which could have
or cause a Material Adverse Effect and, except as disclosed on Schedule 4.14,
neither the Borrower nor any Subsidiary has been designated as a potentially
responsible party under CERCLA or under any state statute similar to CERCLA.
Except as disclosed in Schedule 4.14, none of the Properties has been
identified on any current or proposed (i) National Priorities List under 40
C.F.R. Section 300, (ii) CERCLIS list or (iii) any list arising from a state
statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, on, in or under the
Properties, or, to the best of the knowledge of the Borrower, at or from any
adjacent site or facility, except for Hazardous Materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed, or otherwise handled in the ordinary course of business in compliance
with all applicable Environmental Requirements.
(c) The Borrower, and each of its Subsidiaries and
Affiliates, has procured all Environmental Authorizations necessary for the
conduct of its business, and is in compliance with all Environmental
Requirements in connection with the operation of the Properties and the
Borrower's, and each of its Subsidiary's and Affiliate's, respective
businesses.
SECTION 4.15. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are owned by the
Borrower free and clear of any Lien or adverse claim. At least a majority of
the issued shares of capital stock of each of the Borrower's other Subsidiaries
(other than Wholly Owned
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Subsidiaries) is owned by the Borrower free and clear of any Lien or adverse
claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is inconsistent
with, the provisions of Regulation X.
SECTION 4.17. Insolvency. After giving effect to the
execution and delivery of the Loan Documents and the making of the Loans under
this Agreement: (i) the Borrower will not (x) be "insolvent," within the
meaning of such term as used in O.C.G.A. Section 18-2-22 or as defined in
Section 101 of the "Bankruptcy Code", or Section 2 of either the "UFTA" or the
"UFCA", or as defined or used in any "Other Applicable Law" (as those terms are
defined below), or (y) be unable to pay its debts generally as such debts
become due within the meaning of Section 548 of the Bankruptcy Code, Section 4
of the UFTA or Section 6 of the UFCA, or (z) have an unreasonably small capital
to engage in any business or transaction, whether current or contemplated,
within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 5 of the UFCA; and (ii) the obligations of the Borrower under the
Loan Documents and with respect to the Loans will not be rendered avoidable
under any Other Applicable Law. For purposes of this Section 4.17, "Bankruptcy
Code" means Title 11 of the United States Code, "UFTA" means the Uniform
Fraudulent Transfer Act, "UFCA" means the Uniform Fraudulent Conveyance Act,
and "Other Applicable Law" means any other applicable state law pertaining to
fraudulent transfers or acts voidable by creditors, in each case as such law
may be amended from time to time.
SECTION 4.18. Insurance. The Borrower and each of its
Subsidiaries has (either in the name of the Borrower or in such Subsidiary's
own name), with financially sound and reputable insurance companies, insurance
on all its property in at least such amounts and against at least such risks as
are usually insured against in the same general area by companies of
established repute engaged in the same or similar business.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Loan
outstanding hereunder or any amount payable hereunder or under any Note remains
unpaid:
SECTION 5.01. Information. The Borrower will deliver to each
of the Banks:
(a) as soon as available and in any event within 90 days
after the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such
Fiscal Year and the related consolidated statements of income,
shareholders' equity and cash flows for such Fiscal Year, setting
forth in each case in comparative form the figures for the previous
fiscal year, all certified by Deloitte & Touche LLP or other
independent public accountants of nationally recognized standing, with
such certification to be free of exceptions and qualifications not
acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days
after the end of each of the first 3 Fiscal Quarters of each Fiscal
Year, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal Quarter and the
related statement of income and statement of cash flows as of such
Fiscal Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the corresponding
portion of the previous Fiscal Year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting
officer of the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (a) and (b) above, a
certificate, substantially in the form of Exhibit F (a "Compliance
Certificate"), of the chief financial officer or the chief accounting
officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.03 through 5.07,
inclusive, and 5.09 on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details thereof and
the action which the Borrower is taking or proposes to take with
respect thereto;
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41
(d) simultaneously with the delivery of each set of
annual financial statements referred to in paragraph (a) above, a
statement of the firm of independent public accountants which reported
on such statements to the effect that nothing has come to their
attention to cause them to believe that any Default existed on the
date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the
Borrower setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements, reports
and proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan
has given or is required to give notice of any such reportable event,
a copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice;
or (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a
copy of such notice; and
(i) from time to time such additional information
regarding the financial position or business of the Borrower and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Inspection of Property, Books and Records. The
Borrower will (i) keep, and cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and
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42
activities; and (ii) permit, and cause each Subsidiary to permit, at reasonable
times and on reasonable notice, representatives of any Bank at such Bank's
expense prior to the occurrence of a Default and at the Borrower's expense
after the occurrence of a Default to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books
and records and to discuss their respective affairs, finances and accounts
with their respective officers, employees and independent public accountants.
The Borrower agrees to cooperate and assist in such visits and inspections, in
each case at such reasonable times and as often as may reasonably be desired.
SECTION 5.03. Leverage Ratio. The Leverage Ratio will not at
any time exceed 4.5 to 1.00, calculated at the end of each Fiscal Quarter.
SECTION 5.04. Ratio of Consolidated Debt to Consolidated Total
Tangible Capital. The ratio of Consolidated Debt to Consolidated Total
Tangible Capital will not at any time exceed 0.5 to 1.00, calculated at the end
of each Fiscal Quarter.
SECTION 5.05. Minimum Consolidated Tangible Net Worth.
Consolidated Tangible Net Worth will at no time be less than $475,000,000, plus
the sum of (i) 25% of the cumulative Consolidated Net Income of the Borrower
and its Consolidated Subsidiaries for the period from April 1, 1995 through and
including the last Fiscal Quarter just ended (taken as one accounting period),
calculated quarterly but excluding from such calculations of Consolidated Net
Income for purposes of this clause (i), any quarter in which the Consolidated
Net Income of the Borrower and its Consolidated Subsidiaries is negative, (ii)
100% of the cumulative Net Proceeds of Capital Stock received during any period
after April 1, 1995, less the amount of any Capital Stock repurchased by the
Borrower during any period after April 1, 1995 and (iii) 100% of the amount of
any Debt converted to equity in the Borrower during any period after April 1,
1995, calculated quarterly.
SECTION 5.06. Restricted Payments. The Borrower will not
declare or make any Restricted Payment during any Fiscal Year except from
Consolidated Net Income Available for Restricted Payments; provided that after
giving effect to the payment of any such Restricted Payments, the Borrower will
be in full compliance with all of the provisions of this Agreement.
SECTION 5.07. Loans or Advances. Neither the Borrower nor any
of its Subsidiaries shall make loans or advances to any Person except: (i)
loans or advances to employees not exceeding $1,500,000 in the aggregate
principal amount outstanding at any time, in each case made in the ordinary
course of business and consistent with practices existing on April 1, 1995; and
(ii)
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43
deposits required by government agencies or public utilities; (iii) loans and
advances not in excess of an aggregate amount of $10,000,000 consisting of
trade accounts receivable, the payment terms of which have been altered by
virtue of the bankruptcy of the account debtor; (iv) loans and advances (a)
from the Borrower to any Guarantor (b) from any Guarantor to any other
Guarantor or (c) from any Subsidiary to the Borrower; (v) loans and advances
from the Borrower to any Foreign Subsidiary not exceeding at any time an amount
which, together with the aggregate amount of Investments in Foreign
Subsidiaries permitted by clause (C) of Section 5.08, is equal to 15% of
Consolidated Tangible Net Worth at such time; and (vi) other loans and
advances, not exceeding at any time an amount which, together with the
aggregate amounts of Investments permitted by clause (D) of Section 5.08, is
equal to 10% of Consolidated Tangible Net Worth at such time; provided that
after giving effect to the making of any loans, advances or deposits permitted
by this Section, the Borrower will be in full compliance with all the
provisions of this Agreement.
SECTION 5.08. Investments. Except for the existing
Investments listed on Schedule 5.08, neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except as permitted by
Section 5.07 and except (A) Investments in (i) direct obligations of the United
States Government maturing within one year, (ii) certificates of deposit issued
by a commercial bank whose credit is satisfactory to the Agent, (iii)
commercial paper rated A1 or the equivalent thereof by Standard & Poor's
Corporation or P1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc.
and in either case maturing within 6 months after the date of acquisition, (iv)
tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose long- term
certificates of deposit are rated at least AA or the equivalent thereof by
Standard & Poor's Corporation and Aa or the equivalent thereof by ▇▇▇▇▇'▇
Investors Service, Inc. and/or (v) other short term Investments in accordance
with company policy of the Borrower in effect as of the date of this Agreement,
a written copy of which has been provided to the Banks, which policy may not be
changed without the Required Banks' prior written consent, (B) Investments by
the Borrower in a Guarantor or by any Guarantor in another Guarantor, (C)
Investments by the Borrower in Foreign Subsidiaries not exceeding at any time
an amount which, together with loans and advances to Foreign Subsidiaries
permitted by clause (v) of Section 5.07, is equal to 15% of Consolidated
Tangible Net Worth at such time; and (D) other Investments not exceeding at any
time an amount which, together with the aggregate amounts of loans and advances
permitted by clause (vi) of Section 5.07, is equal to 10% of Consolidated
Tangible Net Worth at such time.
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SECTION 5.09. Negative Pledge. Neither the Borrower nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing
Debt outstanding on the date of this Agreement in an aggregate
principal amount not exceeding $30,000,000;
(b) any Lien existing on any asset of any corporation at
the time such corporation becomes a Consolidated Subsidiary and not
created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring or constructing such asset, provided that such Lien attaches
to such asset concurrently with or within 18 months after the
acquisition or completion of construction thereof;
(d) any Lien on any asset of any corporation existing at
the time such corporation is merged or consolidated with or into the
Borrower or a Consolidated Subsidiary and not created in contemplation
of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Consolidated Subsidiary and
not created in contemplation of such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the
Borrower;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing paragraphs of this Section, provided that (i) such
Debt is not secured by any additional assets, and (ii) the amount of
such Debt secured by any such Lien is not increased;
(h) Liens incidental to the conduct of its business or
the ownership of its assets which (i) do not secure Debt and (ii) do
not in the aggregate materially detract from the value of its assets
or materially impair the use thereof in the operation of its business;
(i) any Lien on Margin Stock; and
(j) Liens not otherwise permitted by the foregoing
paragraphs of this Section securing Debt (other than indebtedness
represented by the Notes) in an aggregate
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principal amount at any time outstanding not to exceed 10% of
Consolidated Tangible Net Worth.
Provided Liens permitted by the foregoing paragraphs (a) through (j) shall at
no time secure Debt in an aggregate amount greater than 15% of Consolidated
Tangible Net Worth.
SECTION 5.10. Maintenance of Existence. The Borrower shall,
and shall cause each Subsidiary to, maintain its corporate existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained.
SECTION 5.11. Dissolution. Neither the Borrower nor any of
its Subsidiaries shall suffer or permit dissolution or liquidation either in
whole or in part, except through corporate reorganization to the extent
permitted by Section 5.12, and except for Subsidiaries which are shown on
Schedule 4.08 as being inactive.
SECTION 5.12. Consolidations, Mergers and Sales of Assets.
The Borrower will not, nor will it permit any Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, or discontinue or eliminate any
business line or segment, provided that (a) the Borrower may merge with another
Person if (i) such Person was organized under the laws of the United States of
America or one of its states, (ii) the Borrower is the corporation surviving
such merger and (iii) immediately after giving effect to such merger, no
Default shall have occurred and be continuing, (b) Subsidiaries of the Borrower
may merge with one another, and (c) the foregoing limitation on the sale, lease
or other transfer of assets and on the discontinuation or elimination of a
business line or segment shall not prohibit, during any Fiscal Year, a transfer
of assets or the discontinuance or elimination of a business line or segment
(in a single transaction or in a series of related transactions) unless the
aggregate assets to be so transferred or utilized in a business line or segment
to be so discontinued, when combined with all other assets transferred, and all
other assets utilized in all other business lines or segments discontinued,
during such Fiscal Year constituted more than 10% of Consolidated Tangible Net
Worth; provided, however, solely for the Fiscal Year 1996, the sale of the
stock of ▇▇▇▇▇-▇▇▇▇▇▇▇▇, Inc. shall be excluded from the calculation of assets
transfered hereunder with respect to the 10% of Consolidated Tangible Net Worth
limitation.
SECTION 5.13. Use of Proceeds. No portion of the proceeds of
the Loans will be used by the Borrower or any Subsidiary (i) in connection
with, whether directly or
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indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other corporation,
unless such tender offer or other acquisition is to be made on a negotiated
basis with the approval of the Board of Directors of the Person to be acquired
(ii) directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any applicable law or regulation.
SECTION 5.14. Compliance with Laws; Payment of Taxes. (a) The
Borrower will, and will cause each of its Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited to
ERISA), regulations and similar requirements of governmental authorities
(including but not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings.
The Borrower will, and will cause each of its Subsidiaries to, pay promptly
when due all taxes, assessments, governmental charges, claims for labor,
supplies, rent and other obligations which, if unpaid, might become a lien
against the property of the Borrower or any Subsidiary, except liabilities
being contested in good faith and against which, if requested by the Agent, the
Borrower will set up reserves in accordance with GAAP.
(b) The Borrower (i) shall not permit the aggregate complete
or partial withdrawal liability under Title IV of ERISA with respect to
Multiemployer Plans incurred by the Borrower and members of the Controlled
Group to exceed $3,000,000 at any time, and (ii) shall notify the Agent and the
Banks in writing, within 90 days after the end of each Fiscal Year, of the
aggregate amount of such liability, if it exceeds $1,000,000. For purposes of
this Section 5.14(b), the amount of withdrawal liability of the Borrower and
members of the Controlled Group at any date shall be the aggregate present
value of the amount claimed to have been incurred less any portion thereof
which the Borrower and members of the Controlled Group have paid or as to which
the Borrower reasonably believes, after appropriate consideration of possible
adjustments arising under Sections 4219 and 4221 of ERISA, it and members of
the Controlled Group will have no liability, provided that the Borrower shall
obtain prompt written advice from independent actuarial consultants supporting
such determination.
SECTION 5.15. Insurance. The Borrower will maintain, and will
cause each of its Subsidiaries to maintain (either in the name of the Borrower
or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its property in at least such amounts
and against at least such risks as are usually insured against in the same
general
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area by companies of established repute engaged in the same or similar
business.
SECTION 5.16. Change in Fiscal Year. The Borrower will not
change its Fiscal Year without the consent of the Required Banks.
SECTION 5.17. Maintenance of Property. The Borrower shall,
and shall cause each Subsidiary to, maintain all of its properties and assets
reasonably required for the conduct of its business in good condition, repair
and working order, ordinary wear and tear excepted.
SECTION 5.18. Environmental Notices. The Borrower shall
furnish to the Banks and the Agent prompt written notice of all material
Environmental Liabilities, pending, threatened or anticipated Environmental
Proceedings, Environmental Notices, Environmental Judgments and Orders, and
Environmental Releases at, on, in, under or in any way affecting the Properties
or any adjacent property, and all facts, events, or conditions that could lead
to any of the foregoing.
SECTION 5.19. Environmental Matters. The Borrower and its
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at,
or otherwise handle, or ship or transport to or from the Properties any
Hazardous Materials except for Hazardous Materials used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed,
managed, or otherwise handled in the ordinary course of business in compliance
with all applicable Environmental Requirements.
SECTION 5.20. Environmental Release. The Borrower agrees that
upon the occurrence of a non-permitted Environmental Release at or on any of
the Properties it will act immediately to investigate the extent of, and to
take appropriate remedial action to eliminate, such Environmental Release,
whether or not ordered or otherwise directed to do so by any Environmental
Authority.
SECTION 5.21. Transactions with Affiliates. Neither the
Borrower nor any of its Subsidiaries shall enter into, or be a party to, any
transaction with any Affiliate of the Borrower or such Subsidiary (which
Affiliate is not the Borrower or a Wholly Owned Subsidiary), except as
permitted by law and in the ordinary course of business and pursuant to
reasonable terms which are fully disclosed to the Agent and the Banks, and are
no less favorable to Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate.
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SECTION 5.22. Election to Become Guarantors; Release of
Guarantors to be Sold. (a) Any Domestic Subsidiary (whether existing on the
Closing Date or acquired or created thereafter) which is not a Guarantor may
elect to become a Guarantor at any time by (x) executing and delivering to the
Agent a counterpart of the Guaranty and a counterpart of the Contribution
Agreement, thereby becoming a party to each of them, (y) delivering to the
Agent an opinion of counsel to such Subsidiary substantially in the form of
Exhibit B, but limited to such Domestic Subsidiary, and excluding paragraph 2
thereof, and (z) delivering to the Agent documents pertaining to such Domestic
Subsidiary reasonably requested by the Agent of the types described in
paragraph (f) of Section 3.01.
(b) In the case of any Guarantor the stock of which is to be sold,
such Guarantor may submit to the Agent a request for a release of its
obligations under the Guaranty, and such Guarantor shall be entitled to obtain
from the Agent a written release from the Guaranty, provided that it can
demonstrate to the reasonable satisfaction of the Agent that (A) the provisions
of Section 5.12 will not be breached by such sale, (b) all loans to such
Guarantor from the Borrower or any other Guarantor have been repaid in full,
(C) the net purchase price to be realized by the seller of such Guarantor for
such sale will be not less than 100% of the net book value of such seller's
Investment in such Guarantor, and (D) no Event of Default is in existence or
will be caused as a result of such sale, and upon obtaining such written
release, it shall no longer be a Guarantor for any purpose hereunder or under
the Guaranty.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the
following events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal
of any Loan or shall fail to pay any interest on any Loan within 5
Domestic Business Days after such interest shall become due, or shall
fail to pay any fee or other amount payable hereunder within 5
Domestic Business Days after such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.01(e), 5.02(ii), 5.03 to 5.13,
inclusive, Sections 5.16 or 5.21; or
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(c) the Borrower shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in
this Agreement (other than those covered by paragraph (a) or (b)
above) and such failure shall not have been cured within 30 days after
the earlier to occur of (i) written notice thereof has been given to
the Borrower by the Agent at the request of any Bank or (ii) the
Borrower otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in Article IV of this Agreement
or in any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect or
misleading in any material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Debt outstanding (other than the Notes) when due
or within any applicable grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of the Borrower or
any Subsidiary (including, without limitation, any required mandatory
prepayment or "put" of such Debt to the Borrower or any Subsidiary) or
enables (or, with the giving of notice or lapse of time or both, would
enable) the holders of such Debt or commitment or any Person acting
on such holders' behalf to accelerate the maturity thereof or
terminate any such commitment (including, without limitation, any
required mandatory prepayment or "put" of such Debt to the Borrower
or any Subsidiary); or
(g) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of i
ts property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action
to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other
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similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal bankruptcy laws as now
or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group
shall fail to pay when due any material amount which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of
ERISA; or notice of intent to terminate a Plan or Plans shall be filed
under Title IV of ERISA by the Borrower, any member of the Controlled
Group, any plan administrator or any combination of the foregoing, if
the Plan or Plans have unfunded liabilities, calculated on a
termination basis, in excess of $3,000,000; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any such Plan or Plans or a
proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within 30 days thereafter; or
a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(j) one or more judgments or orders for the payment of
money in an aggregate amount in excess of $3,000,000 shall be
rendered against the Borrower or any Subsidiary and such judgment or
order shall continue unsatisfied and unstayed for a period of 30 days;
or
(k) a federal tax lien shall be filed against the
Borrower or any Subsidiary under Section 6323 of the Code or a
lien of the PBGC shall be filed against the Borrower or any Subsidiary
under Section 4068 of ERISA and in either case such lien shall remain
undischarged for a period of 25 days after the date of filing;
then, and in every such event, the Agent shall if requested by the Required
Banks, by notice to the Borrower declare the Notes (together with accrued
interest thereon) to be, and the Notes shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower together with interest at the
Default Rate accruing on the principal amount thereof from and after the date
of such Event of Default; provided that if any Event of Default specified in
paragraph (g) or (h) above occurs
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with respect to the Borrower, without any notice to the Borrower or any other
act by the Agent or the Banks, the Commitments shall thereupon terminate and
the Notes (together with accrued interest thereon) shall become immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower together with interest
thereon at the Default Rate accruing on the principal amount thereof from and
after the date of such Event of Default. Notwithstanding the foregoing, the
Agent shall have available to it all other remedies at law or equity, and shall
exercise any one or all of them at the request of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall give notice
to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities. Each Bank
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not
be responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by
any Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for
herein or therein or for any failure by the Borrower to perform any of its
obligations hereunder or thereunder; (c) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or under any other
Loan Document except to the extent requested by the Required Banks, and then
only on terms and conditions satisfactory to the Agent, and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or
under any other Loan Document or any other document or instrument referred to
or provided for herein or therein or in connection herewith or therewith,
except for its own gross negligence or wilful misconduct. The Agent may employ
agents and attorneys-in-fact and shall not be responsible for the negligence
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52
or misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The provisions of this Article VII are solely for the benefit
of the Agent and the Banks, and the Borrower shall not have any rights as a
third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and under the other Loan Documents,
the Agent shall act solely as agent of the Banks and does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for the Borrower. The duties of the Agent shall be
ministerial and administrative in nature, and the Agent shall not have by
reason of this Agreement or any other Loan Document a fiduciary relationship in
respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telefax, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a Default or an
Event of Default, the Agent shall give prompt notice thereof to the Banks. The
Agent shall give each Bank prompt notice of each nonpayment of principal of or
interest on the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to Section 9.06) take
such action hereunder with respect to such Default or Event of Default as shall
be directed by the Required Banks, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent as a Bank. If Wachovia Bank of
Georgia, N.A. becomes a Bank hereunder at any time, the
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following provisions shall apply. With respect to the Loans made by it, in its
capacity as a Bank hereunder shall have the same rights and powers hereunder as
any other Bank and may exercise the same as though it were not acting as the
Agent, and the term "Bank" or "Banks" shall, unless the context otherwise
indicates, include Wachovia in its individual capacity. The Agent may (without
having to account therefor to any Bank) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with the
Borrower (and any of its Affiliates) as if it were not acting as the Agent, and
the Agent may accept fees and other consideration from the Borrower (in
addition to any agency fees and arrangement fees heretofore agreed to between
the Borrower and the Agent) for services in connection with this Agreement or
any other Loan Document or otherwise without having to account for the same to
the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Loans outstanding for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including, without limitation, counsel fees and
disbursements) or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless an Event of Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; provided
that no Bank shall be liable for any of the foregoing to the extent they arise
from the gross negligence or wilful misconduct of the Agent. If any indemnity
furnished to the Agent for any purpose shall, in the opinion of the Agent, be
insufficient or become impaired, the Agent may call for additional indemnity
and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.
SECTION 7.06 Consequential Damages. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. 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
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the Agent and the provisions of Section 9.08(c) have been satisfied. Any
requests, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of that
Note or of any Note or Notes issued in exchange therefor or replacement
thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or any of the
other Loan Documents. The Agent shall not be required to keep itself informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility
to provide any Bank with any credit or other information concerning the
affairs, financial condition or business of the Borrower or any other Person
(or any of their Affiliates) which may come into the possession of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly
required of the Agent hereunder or under the other Loan Documents, the Agent
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction
by the Banks of their indemnification obligations under Section 7.05 against
any and all liability and expense which may be incurred by the Agent by reason
of taking, continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent
may resign at any time by giving notice thereof to the Banks and the Borrower
and the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Agent's notice of resignation or the Required Banks'
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removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for
such Interest Period, or
(b) the Required Banks advise the Agent that the London
Interbank Offered Rate, as determined by the Agent, will not
adequately and fairly reflect the cost to such Banks of funding the
relevant Euro-Dollar Loans for such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
the Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date
of any Borrowing of such Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof (any such agency being referred to as an "Authority" and
any such event being referred to as a "Change of
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Law"), or compliance by any Bank (or its Lending Office) with any request or
directive (whether or not having the force of law) of any Authority shall make
it unlawful or impossible for any Bank (or its Lending Office) to make,
maintain or fund its Euro-Dollar Loans and such Bank shall so notify the Agent,
the Agent shall forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the Agent that
the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Lending Office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Euro-Dollar Loan
of such Bank, together with accrued interest thereon. Concurrently with
prepaying each such Euro-Dollar Loan, the Borrower shall borrow a Base Rate
Loan in an equal principal amount from such Bank (on which interest and
principal shall be payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after
the date hereof, a Change of Law or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding any such requirement included in an
applicable Euro-Dollar Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its
Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on
the London interbank market any other condition affecting its
Euro-Dollar Loans, its Notes or its obligation to make Euro-Dollar
Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with
a copy to the Agent), the Borrower shall pay to such
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Bank such additional amount or amounts as will compensate such Bank for such
increased cost or reduction.
(b) If any Bank reasonably shall have determined that after
the date hereof the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would have
the effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder to a level below that which such Bank
could have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of such Bank, be otherwise disadvantageous to such Bank. A certificate of any
Bank claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive, provided it
has a reasonable basis for claiming compensation, in the absence of manifest
error. In determining such amount, such Bank may use any reasonable averaging
and attribution methods.
(d) The provisions of this Section 8.03 shall be
applicable with respect to any Participant, Assignee or other Transferee, and
any calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Affected
Euro-Dollar Loans. If (i) the obligation of any Bank to make or maintain any
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03, and the Borrower shall, by at
least 5 Euro-Dollar Business Days' prior notice to such Bank through the Agent,
have elected that the provisions of this Section shall apply to such Bank,
then, unless and until such Bank notifies the Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer apply:
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(a) all Loans which would otherwise be made by such Bank
as Euro-Dollar Loans shall be made instead as Base Rate Loans, and
(b) after each of Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Euro-Dollar Loans shall be applied to repay its Base Rate Loans
instead.
SECTION 8.05. Compensation. Upon the request of any Bank,
delivered to the Borrower and the Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.07,
2.08, 6.01, 8.02 or otherwise) of a Euro- Dollar Loan on a date other than the
last day of an Interest Period for such Loan; or
(b) any failure by the Borrower to borrow a Euro-Dollar
Loan on the date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan
is a part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02;
such compensation to include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on the
amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Euro-Dollar Loan (or, in the case
of a failure to prepay or borrow, the Interest Period for such Euro-Dollar Loan
which would have commenced on the date of such failure to prepay or borrow) at
the applicable rate of interest for such Euro- Dollar Loan provided for herein
over (y) the amount of interest (as reasonably determined by such Bank) such
Bank would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telecopier or similar writing) and shall be given to such party at its address
or telecopier number set forth on the signature pages hereof or such other
address or telecopier number as such party may hereafter specify for the
purpose by notice to each other party. Each such notice, request or other
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communication shall be effective (i) if given by telecopier, when such telecopy
is transmitted to the telecopier number specified in this Section and the
appropriate confirmation is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent under
Article II or Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or
any Bank in exercising any right, power or privilege hereunder or under any
Note or other Loan Document shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrower shall
pay (i) all out-of-pocket expenses of the Agent, including fees and
disbursements of special counsel for the Banks and the Agent, in connection
with the preparation of this Agreement and the other Loan Documents, any waiver
or consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default
occurs, all out-of-pocket expenses incurred by the Agent and the Banks,
including fees and disbursements of counsel, in connection with such Default
and collection and other enforcement proceedings resulting therefrom,
including out-of-pocket expenses incurred in enforcing this Agreement and the
other Loan Documents. The Borrower shall indemnify the Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents.
SECTION 9.04. Indemnification. The Borrower shall indemnify
the Agent, the Banks and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against,
any and all losses, liabilities, claims or damages to which any of them may
become subject, insofar as such losses, liabilities, claims or damages arise
out of or result from any actual or proposed use by the Borrower of the
proceeds of any extension of credit by any Bank hereunder or breach by the
Borrower of this Agreement or any other Loan Document or from any
investigation, litigation (including, without limitation, any actions taken by
the Agent or any of the Banks to enforce this Agreement or any of the other
Loan Documents) or other proceeding (including, without limitation, any
threatened investigation or proceeding) relating
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to the foregoing, and the Borrower shall reimburse the Agent and each Bank, and
each Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal
fees) incurred in connection with any such investigation or proceeding; but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or wilful misconduct of the Person to be
indemnified.
SECTION 9.05. Setoff; Sharing of Setoffs. (a) The Borrower
agrees that the Agent and each Bank shall have a lien for all indebtedness and
obligations owing to them from the Borrower upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit accounts
thereof, now or hereafter pledged, mortgaged, transferred or assigned to the
Agent or any such Bank or otherwise in the possession or control of the Agent
or any such Bank for any purpose for the account or benefit of the Borrower and
including any balance of any deposit account or of any credit of the Borrower
with the Agent or any such Bank, whether now existing or hereafter established,
hereby authorizing the Agent and each Bank at any time or times with or without
prior notice to apply such balances or any part thereof to such of the
indebtedness and obligations owing by the Borrower to the Banks and/or the
Agent then past due and in such amounts as they may elect, and whether or not
the collateral, if any, or the responsibility of other Persons primarily,
secondarily or otherwise liable may be deemed adequate. For the purposes of
this paragraph, all remittances and property shall be deemed to be in the
possession of the Agent or any such Bank as soon as the same may be put in
transit to it by mail or carrier or by other bailee.
(b) Each Bank agrees that if it shall, by exercising any
right of setoff or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal and interest owing with respect to the
Note held by it which is greater than the proportion received by any other Bank
in respect of the aggregate amount of all principal and interest owing with
respect to the Note held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks owing to such other Banks, and such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks owing to such other Banks
shall be shared by the Banks pro rata; provided that (i) nothing in this
Section shall impair the right of any Bank to exercise any right of setoff or
counterclaim it may have and to apply the amount subject to such exercise to
the payment of indebtedness of the Borrower other than its indebtedness under
the Notes, and (ii) if all or any portion of such payment received by the
purchasing Bank is thereafter recovered from such purchasing
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61
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of setoff or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.06. Amendments and Waivers. (a) Any provision of
this Agreement, the Notes or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided that, no such amendment or waiver
shall, unless signed by all Banks, (i) subject any Bank to any additional
obligation, (ii) change the principal of or rate of interest on any Loan or any
fees (other than fees payable to the Agent) hereunder, (iii) change the date
fixed for any payment of principal of or interest on any Loan or any fees
hereunder, (iv) change the amount of principal, interest or fees due on any
date fixed for the payment thereof, (v) change the percentage of the aggregate
unpaid principal amount of the Notes, or the percentage of Banks, which shall
be required for the Banks or any of them to take any action under this Section
or any other provision of this Agreement, (vi) change the manner of application
of any payments made under this Agreement or the Notes, (vii) release or
substitute all or any substantial part of the collateral (if any) held as
security for the Loans, or (viii) release any Guarantee given to support
payment of the Loans.
(b) The Borrower will not solicit, request or negotiate
for or with respect to any proposed waiver or amendment of any of the
provisions of this Agreement except through the Agent and the Agent shall be
supplied by the Borrower with sufficient information to enable the Banks to
make an informed decision with respect thereto. Executed or true and correct
copies of any waiver or consent effected pursuant to the provisions of this
Agreement shall be delivered by the Borrower to each Bank forthwith following
the date on which the same shall have been executed and delivered by the
requisite percentage of Banks. The Borrower will not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any Bank (in its
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capacity as such) as consideration for or as an inducement to the entering into
by such Bank of any waiver or amendment of any of the terms and provisions of
this Agreement unless such remuneration is concurrently paid, on the same
terms, ratably to all such Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided that the Borrower
may not assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons
(each a "Participant") participating interests in any Loan owing to such Bank,
any Note held by such Bank or any other interest of such Bank hereunder. In
the event of any such sale by a Bank of a participating interest to a
Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking
any action hereunder except that such Bank may agree that it will not (except
as provided below), without the consent of the Participant, agree to (i) the
change of any date fixed for the payment of principal of or interest on the
related loan or loans, (ii) the change of the amount of any principal, interest
or fees due on any date fixed for the payment thereof with respect to the
related loan or loans, (iii) the change of the principal of the related loan or
loans, (iv) any change in the rate at which either interest is payable thereon
or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive
interest or fee (as the case may be) in respect of such participation, (v) the
release or substitution of all or any substantial part of the collateral (if
any) held as security for the Loans, or (vi) the release of any Guarantee given
to support payment of the Loans. Each Bank selling a participating interest in
any Loan, Note, or other interest under this Agreement shall, within 10
Domestic Business Days of such sale, provide the Borrower and the Agent with
written notification stating that such sale has occurred and
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identifying the Participant and the interest purchased by such Participant.
The Borrower agrees that each Participant shall be entitled to the benefits of
Article VIII with respect to its participation in Loans outstanding from time
to time.
(c) Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all or a proportionate part of all
its Loans, in an amount of not less than $5,000,000 or any larger multiple of
$1,000,000, and of its rights and obligations under this Agreement, the Notes
and the other Loan Documents, and such Assignee shall assume all such rights
and obligations, pursuant to an Assignment and Acceptance, executed by such
Assignee, such transferor Bank and the Agent (and, in the case of an Assignee
that is not then a Bank, the Borrower); provided that except during the
continuance of a Default, no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank (or an Affiliate of a
Bank) without the consent of the Borrower and the Agent, which consent shall
not be unreasonably withheld. Upon (A) execution of the Assignment and
Acceptance by such transferor Bank, such Assignee, the Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the Assignment
and Acceptance to the Borrower and the Agent, (C) payment by such Assignee to
such transferor Bank of an amount equal to the purchase price agreed between
such transferor Bank and such Assignee, and (D) payment of a processing and
recordation fee of $2,000 to the Agent, such Assignee shall for all purposes be
a Bank party to this Agreement and shall have all the rights and obligations of
a Bank under this Agreement to the same extent as if it were an original party
hereto with Loans as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Banks or the Agent shall be required. Upon the consummation of any transfer to
an Assignee pursuant to this paragraph (c), the transferor Bank, the Agent and
the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to such Assignee.
(d) Subject to the provisions of Section 9.09, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower which
has been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been entitled to
receive with respect to the rights
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transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Lending Office under certain circumstances or at
a time when the circumstances giving rise to such greater payment did not
exist.
(g) Anything in this Section 9.08 to the contrary
notwithstanding, any Bank may assign and pledge all or any portion of the Loans
and/or obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such
assigned Loans and/or obligations made by the Borrower to the assigning and/or
pledging Bank in accordance with the terms of this Agreement shall satisfy the
Borrower's obligations hereunder in respect of such assigned Loans and/or
obligations to the extent of such payment. No such assignment shall release
the assigning and/or pledging Bank from its obligations hereunder.
SECTION 9.09. Confidentiality. Each Bank agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by the Borrower to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained
by such Bank who are or are expected to become engaged in evaluating,
approving, structuring or administering the Loans; provided that nothing herein
shall prevent any Bank from disclosing such information (i) to any other Bank,
(ii) upon the order of any court or administrative agency, (iii) upon the
request or demand of any regulatory agency or authority having jurisdiction
over such Bank, (iv) which has been publicly disclosed, (v) to the extent
reasonably required in connection with any litigation to which the Agent, any
Bank or their respective Affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of any remedy hereunder,
(vii) to such Bank's legal counsel and independent auditors and (viii) to any
actual or proposed Participant, Assignee or other Transferee of all or part of
its rights hereunder which has agreed in writing to be bound by the provisions
of this Section 9.09; provided that should disclosure of any such confidential
information be required by virtue of clause (ii) of the immediately preceding
sentence, any relevant Bank shall promptly notify the Borrower of same so as to
allow the Borrower to seek a protective order or to take any other appropriate
action; provided, further, that, no Bank shall be required to delay compliance
with any directive to disclose any such information so as to allow the Borrower
to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank hereby
represents that it is a commercial lender or financial
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institution which makes Loans in the ordinary course of its business and that
it will make its Loans hereunder for its own account in the ordinary course of
such business; provided that, subject to Section 9.08, the disposition of the
Note or Notes held by that Bank shall at all times be within its exclusive
control.
SECTION 9.11. Obligations Several. The obligations of each
Bank hereunder are several, and no Bank shall be responsible for the
obligations or commitment of any other Bank hereunder. Nothing contained in
this Agreement and no action taken by the Banks pursuant hereto shall be deemed
to constitute the Banks to be a partnership, an association, a joint venture or
any other kind of entity. The amounts payable at any time hereunder to each
Bank shall be a separate and independent debt, and each Bank shall be entitled
to protect and enforce its rights arising out of this Agreement or any other
Loan Document and it shall not be necessary for any other Bank to be joined as
an additional party in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each Note shall
be construed in accordance with and governed by the law of the State of
Georgia.
SECTION 9.13. Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. 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 Loan 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 Bank, then the excess
sum (the "Excess") shall be credited as a payment of principal, unless the
Borrower shall notify such Bank in writing that it elects to have the Excess
returned forthwith. It is the express intent hereof that the Borrower not pay
and the Banks 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 Banks do not intend to
collect any unearned interest in the event of any such acceleration. All
monies paid to the Agent or the Banks
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hereunder or under any of the Notes or the other Loan 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 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 Bank, 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 Bank, 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 Loan Documents shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Term Loans. The Borrower, the Agent and each
Bank 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 Loan Documents (whether or not any
provision of this Section is referred to therein). All such Loan Documents and
communications relating to any Interest owed by the Borrower and all figures
set forth therein shall, for the sole purpose of computing the extent of
obligations hereunder and under the Notes and the other Loan 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.
SECTION 9.15. Interpretation. No provision of this Agreement
or any of the other Loan Documents shall be construed against or interpreted to
the disadvantage of any party hereto by any court or other governmental or
judicial authority by reason of such party having or being deemed to have
structured or dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction.
The Borrower (a) and each of the Banks and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any
legal proceeding arising out of this Agreement, any of the other Loan
Documents, or any of the transactions contemplated hereby or thereby, (b)
submits to the nonexclusive personal jurisdiction in the State of Georgia, the
courts thereof and the United States District Courts sitting therein, for the
enforcement of this Agreement, the Notes and the other Loan Documents, (c)
waives any and all personal rights under the law of any jurisdiction to object
on any basis (including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of Georgia
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for the purpose of litigation to enforce this Agreement, the Notes or the other
Loan Documents, and (d) agrees that service of process may be made upon it in
the manner prescribed in Section 9.01 for the giving of notice to the Borrower.
Nothing herein contained, however, shall prevent the Agent from bringing any
action or exercising any rights against any security and against the Borrower
personally, and against any assets of the Borrower, within any other state or
jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. Source of Funds -- ERISA. Each of the Banks
hereby severally (and not jointly) represents to the Borrower that no part of
the funds to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such
Bank in which any employee benefit plan (or its related trust) has any interest
nor (ii) any other assets of any employee benefit plan. As used in this
Section, the terms "employee benefit plan" and "separate account" shall have
the respective meanings assigned to such terms in Section 3 of ERISA.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
SPRINGS INDUSTRIES, INC.(SEAL)
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Senior Vice President-
Chief Financial Officer
Springs Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
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COMMITMENTS:
-----------
$50,000,000
WACHOVIA BANK OF GEORGIA, N.A.,
for itself and as Agent (SEAL)
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Lending Office
--------------
Wachovia Bank of Georgia, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Wachovia Bank of North
Carolina, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code 21319--31st Floor
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
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69
$25,000,000
NATIONSBANK, N.A.,
as a Bank (SEAL)
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
Lending Office
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NationsBank Corporate Center
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
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70
$25,000,000
SUNTRUST BANK, ATLANTA,
as a Bank (SEAL)
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Banking Officer
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Group Vice President
Lending Office
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
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