1
EXHIBIT 4
$225,000,000
CREDIT AGREEMENT
dated as of
December 17, 1997
among
SPRINGS INDUSTRIES, INC.
The Banks Listed Herein
and
WACHOVIA BANK, 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 Syndicated Loans
SECTION 2.02. Method of Borrowing Syndicated Loans
SECTION 2.03. Money Market Loans
SECTION 2.04. Notes
SECTION 2.05. Maturity of Loans
SECTION 2.06. Interest Rates
SECTION 2.07. Fees
SECTION 2.08. Optional Termination or Reduction of Commitments
SECTION 2.09. Mandatory Termination of Commitments
SECTION 2.10. Optional Prepayments
SECTION 2.11. Mandatory Prepayments
SECTION 2.12. General Provisions as to Payments
SECTION 2.13. Computation of Interest and Fees
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ARTICLE III CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing
SECTION 3.02. Conditions to All Borrowings
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
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ARTICLE V COVENANTS
SECTION 5.01. Information
SECTION 5.02. Inspection of Property, Books and Records
SECTION 5.03. Ratio of Consolidated Debt to Consolidated Total Tangible
Capital
SECTION 5.04. Minimum Consolidated Tangible Net Worth
SECTION 5.05. Restricted Payments
SECTION 5.06. Loans or Advances
SECTION 5.07. Investments
SECTION 5.08. Negative Pledge
SECTION 5.09. Maintenance of Existence
SECTION 5.10. Dissolution
SECTION 5.11. Consolidations, Mergers and Sales of Assets
SECTION 5.12. Use of Proceeds
SECTION 5.13. Compliance with Laws; Payment of Taxes
SECTION 5.14. Insurance
SECTION 5.15. Change in Fiscal Year
SECTION 5.16. Maintenance of Property
SECTION 5.17. Environmental Notices
SECTION 5.18. Environmental Matters
SECTION 5.19. Environmental Release
SECTION 5.20. Transactions with Affiliates
SECTION 5.21 Election to Become Guarantors; Release of Guarantors to be
Sold
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SECTION 5.22 Ownership of Bonds
ARTICLE VI DEFAULTS
SECTION 6.01. Events of Default
SECTION 6.02. Notice of Default
ARTICLE VII 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; COMPENSATION60
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
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ARTICLE IX MISCELLANEOUS
SECTION 9.01. Notices
SECTION 9.02. No Waivers
SECTION 9.03. Expenses; Documentary Taxes
SECTION 9.04. Indemnification
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
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EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Money Market Loan 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 Intentionally Deleted
EXHIBIT I Form of Guaranty
EXHIBIT J Form of Contribution Agreement
EXHIBIT K Form of Money Market Quote Request
EXHIBIT L Form of Money Market Quote
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 December 17, 1997 among SPRINGS
INDUSTRIES, INC., the BANKS listed on the signature pages hereof and WACHOVIA
BANK, 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 2.06(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, 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 October 24, 1997, between the Borrower and the Agent relating to the
structure of the Loans, and certain
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fees from time to time payable by the Borrower to the Agent, together with all
amendments and supplements thereto.
"Agreement" means this Credit Agreement, together with all amendments
and supplements hereto.
"Applicable Margin" has the meaning set forth in Section 2.06(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 which bears or is to bear interest at a
rate based upon the Base Rate, and is to be made as a Base Rate Loan pursuant to
the applicable Notice of Borrowing, Section 2.02(f), 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 (i) at the same time by all of the Banks, in the case of a Syndicated
Borrowing, or (ii) separately by one or more Banks, in the case of a Money
Market Borrowing, in each case pursuant to Article II. A Borrowing is a "Money
Market Borrowing" if such Loans are made pursuant to Section 2.03 or a
"Syndicated Borrowing" if such Loans are made pursuant to Section 2.01. A
Borrowing is a "Domestic Borrowing" if such Loans are
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Domestic Loans or a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans.
A Domestic Borrowing is a "Base Rate Borrowing" if such Domestic Loans are Base
Rate Loans. A Borrowing is a "Money Market Borrowing" if such Loans are made
pursuant to Section 2.03 or a "Syndicated Borrowing" if such Loans are made
pursuant to Section 2.01.
"Capital Stock" 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. ss. 9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Close Family Interests" means ▇▇▇▇ Springs Close and members of her
family, the Close Family Trusts, The Springs Company and Central Reassurance
Corporation.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means December 17, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, and (ii)as to any
Bank which enters into any Assignment and Acceptance (whether as transferor Bank
or as Assignee thereunder), the amount of such Bank's Commitment after giving
effect to such Assignment and Acceptance, in each case as such amount may be
reduced from time to time pursuant to Sections 2.08 and 2.09.
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"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 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:
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(A) Any surplus resulting from any write-up of assets
subsequent to January 1, 1996;
(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 (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 (A) trade accounts payable arising in the ordinary course of
business, and (B) Non-Interest Bearing Deferred Compensation, (iv) all
obligations of such Person as
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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 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 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.
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"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 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.
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"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 which bears or is to bear interest at a
rate based upon the Adjusted London Interbank Offered Rate, and 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
2.06(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 to the Agent on such day on such
transactions, as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Rate Borrowing" means a Euro-Dollar Borrowing or a Money Market
Borrowing, either or both of them, as the context requires.
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"Fixed Rate Loans" means Euro-Dollar Loans or Money Market Loans,
either or both of them, as the context requires.
"Foreign Subsidiary" means any Subsidiary which is not a Domestic
Subsidiary.
"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.
"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 5.21;
in each case subject to the provisions of the last sentence of Section 5.21.
"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,
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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. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
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.
"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;
(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 Termination Date and would otherwise end after the
Termination 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:
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(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
Termination Date and would otherwise end after the Termination Date may
be selected.
(3) with respect to each Money Market Borrowing, the period commencing on the
date of such Borrowing and ending on the Stated Maturity Date or such other date
or dates as may be specified in the applicable Money Market Quote; provided
that:
(a) any Interest Period (subject to clause (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 may be selected which begins
before the Termination Date and would otherwise end after the
Termination Date.
"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
Consolidated Total Tangible Capital.
"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
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Guarantee, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this Agreement, the Borrower or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Domestic Loan,
Syndicated Loan, or Money Market Loan, and "Loans" means Base Rate Loans,
Euro-Dollar Loans, Domestic Loans, Syndicated Loans, Money Market Loans, or any
or all of them, as the context requires.
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Contribution Agreement, 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, the Guaranty, the Contribution
Agreement 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
2.06(d).
"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 which has or could
have the effect of impairing the Borrower's ability to perform or comply with
provisions of this Agreement or the other Loan Documents to which it is a party,
(b) the rights and remedies of the Agent or the Banks under the Loan Documents,
or (c) the legality, validity or enforceability of any Loan Document.
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"Money Market Borrowing Date" has the meaning specified in Section
2.03.
"Money Market Loan Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrower to repay the Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Quote" has the meaning specified in Section 2.03.
"Money Market Quote Request" has the meaning specified in Section
2.03(b).
"Money Market Rate" has the meaning specified in Section
2.03(c)(ii)(C).
"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.
"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.
"Non-Interest Bearing Deferred Compensation" means with respect to the
obligations of the Borrower to its employees, officers and directors under the
Borrower's deferred compensation plans in effect from time to time, that portion
of such deferred compensation which does not bear interest.
"Notes" means each of the Syndicated Loan Notes or Money Market Loan
Notes, or any or all of them, as the requires.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
21
"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 2.06(a).
"Permitted Sale-Lease Back/Bond Transaction" shall mean a
transaction entered into by the Borrower with any of the South Carolina
Counties of ▇▇▇▇▇▇▇, York, Lancaster and Spartanburg (each an "SC
County", collectively, the "SC Counties") for the purpose of obtaining
a fee-in-lieu-of-tax characterization with respect to such transaction,
whereby (the following transactions are referred to in this definition
as the "Bond Transaction(s)"): (i) the Borrower has sold or will sell
certain real and personal property (the "Property") located in each of
the SC Counties to the respective SC County in which such Property is
located; (ii) the Borrower has leased-back or will lease-back the
Property from each respective SC County; (iii) each of the SC Counties
has assigned or will assign such lease (the "Lease(s)") to certain
trustees (the "Trustee(s)"); (iv) each of the Trustees has sold or will
sell a bond (the "Bond(s)") issued by the respective SC County to the
Borrower, the payment of which is secured by the Property in such SC
County and the respective Lease, and the Bond proceeds are loaned to
the Borrower in return for the Borrower's issuance of a promissory note
therefor; (v) each Bond and the collateral security therefor shall be
freely assignable, provided, however, the Borrower shall not encumber,
transfer or otherwise dispose of the Bond or any collateral security
therefor and shall remain the sole holder thereof; (vi) each Bond
Transaction shall be entered into, performed and terminated (including,
without limitation, all payments of any loans, rent, and purchase price
by Borrower, any County or any Trustee at the consummation of any Bond
Transaction, during the performance of any Bond Transaction, and at the
termination of any Bond
22
Transaction) in accordance with its terms and without (x) the transfer
of or obligation to transfer any funds between the parties to the Bond
Transactions except for mutual offsetting book entries and fees paid or
to be paid to any SC County in lieu of taxes, or (y) any effect under
GAAP (as currently in effect) on the Borrower's financial statements;
(vii) at any time the Borrower may terminate any Lease and title to the
respective Property subject to such Lease shall be automatically
transferred back to the Borrower; and (viii) at the end of the term of
any Lease and upon payment of the respective Bond in full, title to the
respective Property subject to such Lease shall be automatically
transferred back to the Borrower.
"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 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 Termination Date either
(i) mandatorily redeemable (by
23
sinking fund or similar payments or otherwise) or (ii) redeemable at the option
of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day on which
an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is being
converted to a Fixed Rate Borrowing, if and to the extent that the proceeds
thereof are used entirely for the purpose of paying such maturing Loan or Loan
being converted, excluding any difference between the amount of such maturing
Loan or Loan being converted and any greater amount being borrowed on such day
and actually either being made available to the Borrower pursuant to Section
2.02(c) or remitted to the Agent as provided in Section 2.12, in each case as
contemplated in Section 2.02(d).
"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 amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the aggregate outstanding principal
amount of the sum of the (i) Syndicated Loans and (ii) Money Market Loans.
"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
24
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.
"Stated Maturity Date" means, with respect to any Money Market Loan,
the Stated Maturity Date therefor specified by the Bank in the applicable Money
Market Quote.
"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.
"Syndicated Loans" means Base Rate Loans or Euro-Dollar Loans made
pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A-1, evidencing the obligation of the
Borrower to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means whichever is applicable of (i) December 17,
2002, (ii) the date the Commitments are terminated pursuant to Section 6.01
following the occurrence of an Event of
25
Default, or (iii) the date the Borrower terminates the Commitments entirely
pursuant to Section 2.08.
"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.
"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 Syndicated Loans (but not its Money Market Loans).
"Wachovia" means Wachovia Bank, 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
26
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 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 Syndicated Loans. Each Bank severally
agrees, on the terms and conditions set forth herein, to make Syndicated Loans
to the Borrower from time to time before the Termination Date; provided that,
(i) immediately after each such Syndicated Loan is made, the
aggregate outstanding principal amount of
27
Syndicated Loans by such Bank shall not exceed the amount of its
Commitment, and
(ii) the aggregate outstanding principal amount of all
Syndicated Loans and Money Market Loans shall not exceed the aggregate
amount of the Commitments.
Each Euro-Dollar Borrowing under this Section shall be in an aggregate principal
amount of $5,000,000 or any larger integral multiple of $1,000,000 (except that
any such Syndicated Borrowing may be in the aggregate amount of the Unused
Commitments) and shall be made from the several Banks ratably in proportion to
their respective Commitments. Each Base Rate Borrowing under this Section shall
be in an aggregate principal amount of $1,000,000 or any larger multiple of
$500,000 (except that any such Borrowing may be in the aggregate amount of the
Unused Commitments) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrower may borrow under this Section, repay or, to the extent permitted by
Section 2.10, prepay Syndicated Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02. Method of Borrowing Syndicated Loans. (a) The Borrower
shall give the Agent notice (a "Notice of Borrowing"), which shall be
substantially in the form of Exhibit E, prior to 11:00 A.M. (Atlanta, Georgia
time) at least 3 Euro-Dollar Business Days before each Euro-Dollar Borrowing,
and prior to 11:00 A.M. (Atlanta, Georgia time) at least 1 Domestic Business Day
before each Base Rate Borrowing, specifying:
(i) the date of such Syndicated 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 Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Borrowing
are to be Base Rate Loans or Euro-Dollar Loans, and
28
(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 Syndicated 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 Euro-Dollar Borrowing and not later than 1:00 P.M. on the date of each
Base Rate Borrowing, each Bank shall (except as provided in paragraph (d) of
this Section) 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. 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. 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 Euro-Dollar Borrowing, or in the case of a Base Rate
Borrowing, no later than 12:00 Noon on the same Domestic Business Day of such
Base Rate Borrowing, stating that such Bank will not make a Loan 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) make available such
Bank's ratable share of such Borrowing to the Borrower for the account of such
Bank. If the Agent makes such Bank's ratable share available to the Borrower and
such Bank does not in fact make its ratable share of such Borrowing available on
such date, the Agent shall be entitled to recover such Bank's ratable share from
such Bank or the Borrower (and for such purpose shall be entitled to charge such
amount to any account of the Borrower maintained with the Agent), 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 the Agent or the Borrower of such Bank's
ratable share
29
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 the Agent, as a Bank, shall have such interest and rights, if it
has made such funding available). If the Agent does not exercise its option to
advance funds for the account of such Bank, it shall forthwith notify the
Borrower of such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on
a day on which the Borrower is to repay all or any part of an outstanding
Syndicated Loan from such Bank, such Bank shall apply the proceeds of its new
Syndicated Loan to make such repayment as a Refunding Loan and only an amount
equal to the difference (if any) between the amount being borrowed and the
amount of such Refunding Loan shall be made available by such Bank to the Agent
as provided in paragraph (c) of this Section, or remitted by the Borrower to the
Agent as provided in Section 2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in
this Agreement, no Fixed Rate 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, and all Refunding Loans shall be made as Base Rate
Loans (but shall bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to
specify whether the Syndicated Loans comprising such Syndicated Borrowing are to
be Base Rate Loans or Euro-Dollar Loans, such Syndicated Loans shall be made as
Base Rate Loans. If the Borrower is otherwise entitled under this Agreement to
repay any Syndicated 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 Syndicated Loans using its own moneys and fails to give a Notice of
Borrowing in connection with such new Syndicated Borrowing, a new Syndicated
Borrowing shall be deemed to be made on the date such Syndicated Loans mature in
an amount equal to the principal amount of the Syndicated Loans so maturing, and
the Syndicated Loans comprising such new Syndicated Borrowing shall be Base Rate
Loans.
30
(g) Notwithstanding anything to the contrary contained
herein, there shall not be more than 6 Borrowings outstanding at any given time.
SECTION 2.03. Money Market Loans. (a) In addition to making
Syndicated Borrowings, the Borrower may, as set forth in this Section 2.03,
request the Banks to make offers to make Money Market Borrowings available to
the Borrower. The Banks may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.03, provided that:
(i) the number of interest rates applicable to
Money Market Loans which may be outstanding at any given time is
subject to the provisions of Section 2.02(g);
(ii) the aggregate principal amount of all Money
Market Loans, together with the aggregate principal amount of all
Syndicated Loans, at any one time outstanding shall not exceed the
aggregate amount of the Commitments of all of the Banks at such time;
and
(iii) the Money Market Loans of any Bank will be
deemed to be usage of the Commitments for the purpose of calculating
availability pursuant to Section 2.01(a)(ii) and 2.03(a)(ii), but will
not reduce such Bank's obligation to lend its pro rata share of the
remaining Unused Commitment.
(b) When the Borrower wishes to request offers to make
Money Market Loans, it shall give the Agent (which shall promptly notify the
Banks) notice substantially in the form of Exhibit I hereto (a "Money Market
Quote Request") so as to be received no later than 10:00 A.M. (Atlanta, Georgia
time) at least 2 Domestic Business Days prior to the date of the Money Market
Borrowing proposed therein (or such other time and date as the Borrower and the
Agent, with the consent of the Required Banks, may agree), specifying:
(i) the proposed date of such Money Market
Borrowing, which shall be a Euro-Dollar Business Day (the "Money Market
Borrowing Date");
(ii) the maturity date (or dates) (each a "Stated
Maturity Date") for repayment of each Money Market Loan to be made as
part of such Money Market Borrowing
31
(which Stated Maturity Date shall be that date occurring not less than
7 days but not more than 180 days from the date of such Money Market
Borrowing); provided that the Stated Maturity Date for any Money Market
Loan may not extend beyond the Termination Date (as in effect on the
date of such Money Market Quote Request); and
(iv) the aggregate amount of principal to be
requested by the Borrower as a result of such Money Market Borrowing,
which shall be at least $5,000,000 (and in larger integral multiples of
$1,000,000) but shall not cause the limits specified in Section 2.03(a)
to be violated.
The Borrower may request offers to make Money Market Loans having up to 2
different Stated Maturity Dates in a single Money Market Quote Request; provided
that the request for each separate Stated Maturity Date shall be deemed to be a
separate Money Market Quote Request for a separate Money Market Borrowing.
Except as otherwise provided in the immediately preceding sentence, after the
first Money Market Quote Request has been given hereunder, no Money Market Quote
Request shall be given until at least 5 Domestic Business Days after all prior
Money Market Quote Requests have been fully processed by the Agent, the Banks
and the Borrower pursuant to this Section 2.03.
(c) (i) Each Bank may, but shall have no obligation
to, submit a response containing an offer to make a Money Market Loan
substantially in the form of Exhibit J hereto (a "Money Market Quote")
in response to any Money Market Quote Request; provided that, if the
Borrower's request under Section 2.03(b) specified more than 1 Stated
Maturity Date, such Bank may, but shall have no obligation to, make a
single submission containing a separate offer for each such Stated
Maturity Date and each such separate offer shall be deemed to be a
separate Money Market Quote. Each Money Market Quote must be submitted
to the Agent not later than 10:00 A.M. (Atlanta, Georgia time) on the
Money Market Borrowing Date; provided that any Money Market Quote
submitted by Wachovia may be submitted, and may only be submitted, if
Wachovia notifies the Borrower of the terms of the offer contained
therein not later than 9:45 A.M. (Atlanta, Georgia time) on the Money
Market Borrowing Date (or 15 minutes prior to the time that the other
Banks are required to have submitted their respective Money Market
Quotes). Subject to Section 6.01, any Money Market Quote so
32
made shall be irrevocable except with the written consent of the Agent
given on the instructions of the Borrower.
(ii) Each Money Market Quote shall
specify:
(A) the proposed Money Market Borrowing
Date and the Stated Maturity Date therefor;
(B) the principal amounts of the Money
Market Loan which the quoting Bank is willing to make for the
applicable Money Market Quote, which principal amounts (x) may
be greater than or less than the Commitment of the quoting
Bank, (y) shall be at least $5,000,000 or a larger integral
multiple of $500,000, and (z) may not exceed the principal
amount of the Money Market Borrowing for which offers were
requested;
(C) the rate of interest per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%)
offered for each such Money Market Loan (such amounts being
hereinafter referred to as the "Money Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market
Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Money Market Quote Request (other than setting forth the
principal amounts of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period) and, in particular,
no Money Market Quote may be conditioned upon acceptance by the
Borrower of all (or some specified minimum) of the principal amount of
the Money Market Loan for which such Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after the
Money Market Quote is submitted (but in any event not later than 10:30 A.M.
(Atlanta, Georgia time)) on the Money Market Borrowing Date, notify the Borrower
of the terms (i) of any Money Market Quote submitted by a Bank that is in
accordance with
33
Section 2.03(c) and (ii) of any Money Market Quote that amends, modifies or is
otherwise inconsistent with a previous Money Market Quote submitted by such Bank
with respect to the same Money Market Quote Request. Any such subsequent Money
Market Quote shall be disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest error in such former
Money Market Quote. The Agent's notice to the Borrower shall specify (A) the
principal amounts of the Money Market Borrowing for which offers have been
received and (B) the respective principal amounts and Money Market Rates so
offered by each Bank (identifying the Bank that made each Money Market Quote).
(e) Not later than 11:00 A.M. (Atlanta, Georgia time) on the Money
Market Borrowing Date, the Borrower shall notify the Agent of its acceptance or
nonacceptance of the offers so notified to it pursuant to Section 2.03(d) and
the Agent shall promptly notify each Bank which submitted an offer. In the case
of acceptance, such notice shall specify the aggregate principal amount of
offers (for each Stated Maturity Date) that are accepted. The Borrower may
accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Loan comprising a Money Market Borrowing shall be at least $5,000,000
(and in larger integral multiples of $1,000,000) but shall not cause
the limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending
order of Money Market Rates; and
(iv) the Borrower may not accept any offer where the Agent
has advised the Borrower that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including without limitation, Section 2.03(a)).
If offers are made by 2 or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated
34
Maturity Date, the principal amount of Money Market Loans in respect of which
such offers are accepted shall be allocated by the Borrower among such Banks as
nearly as possible in proportion to the aggregate principal amount of such
offers. Determinations by the Borrower of the amounts of Money Market Loans
shall be conclusive in the absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan
has been accepted shall, not later than 12:00 P.M. (Atlanta, Georgia time) on
the Money Market Borrowing Date, make the amount of such Money Market Loan
allocated to it available to the Agent at its address referred to in Section
9.01 in immediately available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made available to the
Borrower on such date by depositing the same, in immediately available funds,
not later than 4:00 P.M. (Atlanta, Georgia time), in an account of such Borrower
maintained with Wachovia.
(g) After any Money Market Loan has been funded, the
Agent shall notify the Banks of the aggregate principal amount of the Money
Market Quotes received and the highest and lowest rates included in such Money
Market Quotes.
SECTION 2.04. Notes. (a) The Syndicated Loans of each Bank
shall be evidenced by a single Syndicated Loan 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.
(b) The Money Market Loans made by any Bank to the
Borrower shall be evidenced by a single Money Market Loan 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 the aggregate Commitments.
(c) 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, 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
35
respective principal amounts owing and unpaid on such Bank's Notes; provided
that the failure of any Bank to make, or any error in making, 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 2.05. Maturity of Loans. (a) 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.
(b) Notwithstanding the foregoing, the outstanding
principal amount of the Loans, if any, together with all accrued but unpaid
interest thereon, if any, shall be due and payable on December 17, 2002.
SECTION 2.06. Interest Rates. (a) "Applicable Margin" means:
(i) for the period commencing on the Closing Date to and including
the first Performance Pricing Determination Date, (x) for any Base Rate Loan,
0%, and (y) for any Euro-Dollar Loan, 0.175%; and
(ii) from and after the first Performance Pricing Determination
Date, (x) for any Base Rate Loan, 0.00% and (y) for each Euro-Dollar Loan, the
percentage determined on each Performance Pricing Determination Date by
reference to the table 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 < 30% > 30% AND < 40% > 40%
- -
ADJUSTED LONDON 0.175% 0.225% 0.30%
INTERBANK
OFFERED RATE
36
In determining interest for purposes of this Section 2.06 and fees for
purposes of Section 2.07, the Borrower and the Banks shall refer to the
Borrower's most recent consolidated quarterly and annual (as the case may be)
financial statements 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 2.06 or fees pursuant to Section 2.07, 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 supporting
the required change. The "Performance Pricing Determination Date" is the date
which is the last date on which such financial statements are permitted to be
delivered pursuant to Section 5.01(a) or (b), as applicable. Any such required
change in interest and fees shall become effective on such Performance Pricing
Determination Date, and shall be in effect until the next Performance Pricing
Determination Date, provided that: (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 fees or interest shall be
decreased pursuant to this Section 2.06 or Section 2.07 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.
37
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
Page 3750 effective 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 Period, for
deposits in Dollars offered by leading European banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of 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) Each Money Market Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Money Market Loan is
made until it becomes due, at a rate per annum equal to the applicable Money
Market Rate set forth in
38
the relevant Money Market Quote. Such interest shall be payable on the Stated
Maturity Date thereof, and, if the Stated Maturity Date occurs more than 90 days
after the date of the relevant Money Market Loan, at intervals of 90 days after
the first day thereof. Any overdue principal of and, to the extent permitted by
law, overdue interest on any Money Market Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
(e) 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.
(f) 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 2.07. Fees. (a) The Borrower shall pay to the Agent, for the
ratable account of each Bank, a facility fee, calculated in the manner provided
in the last paragraph of Section 2.06(a)(ii), on the aggregate amount of such
Bank's Commitment (without taking into account the amount of the outstanding
Loans made by such Bank), at a rate per annum equal to: (i) for the period
commencing on the Closing Date to and including the first Performance Pricing
Determination Date, 0.075%; and (ii) from and after the first Performance
Pricing Determination Date, the percentage determined on each Performance
Pricing Determination Date by reference to the table set forth below and the
Leverage Ratio for the quarterly or annual period ending immediately prior to
such Performance Pricing Determination Date:
LEVERAGE RATIO < 30% > 30% AND < 40% > 40%
- -
FACILITY FEE 0.075% 0.10% 0.125%
Such facility fees shall accrue from and including the Closing Date to (but
excluding the Termination Date) and shall be payable on each March 31, June 30,
September 30 and December 31 and on the Termination Date.
39
(b) 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.
SECTION 2.08. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least 3 Domestic Business Days' notice to the Agent,
terminate at any time, or proportionately reduce the Unused Commitments from
time to time by an aggregate amount of at least $5,000,000 or any larger
integral multiple of $1,000,000. If the Commitments are terminated in their
entirety, all accrued fees (as provided under Section 2.07) shall be due and
payable on the effective date of such termination.
SECTION 2.09. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
SECTION 2.10. Optional Prepayments. (a) The Borrower may, upon at least
1 Domestic Business Days' notice to the Agent, prepay any Base Rate Borrowing in
whole at any time, or from time to time in part in amounts aggregating at least
$1,000,000 or any larger multiple of $500,000, by paying the principal amount to
be prepaid together with accrued interest thereon to the date of prepayment.
Each such optional prepayment shall be applied to prepay ratably the Base Rate
Loans of the several Banks included in such Base Rate Borrowing.
(b) The Borrower may prepay all or any portion of the principal
amount of any Fixed Rate 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 Fixed Rate Loan.
(c) Upon receipt of a notice of prepayment pursuant to this
Section 2.10, 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 2.11. Mandatory Prepayments. (a) 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
40
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 on the Loans 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, and all Commitments
shall terminate.
(b) On each date on which the Commitments are reduced pursuant to
Section 2.08 or Section 2.09, the Borrower shall repay or prepay such principal
amount of the outstanding Loans, if any (together with interest accrued thereon
and any amount due under Section 8.05(a)), as may be necessary so that after
such payment the aggregate unpaid principal amount of the Loans does not exceed
the aggregate amount of the Commitments as then reduced. Each such payment or
prepayment shall be applied ratably to the Loans of the Banks outstanding on the
date of payment or prepayment in the following order of priority: (i) first, to
Base Rate Loans; (ii) secondly, to Euro-Dollar Loans; and (iii) lastly, to Money
Market Loans.
SECTION 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and 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, Money Market 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
41
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.
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
42
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 2.12(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 2.12(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 2.13. 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 daybut
excluding the last day). Interest on Euro-Dollar Loans and Money Market 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. Facility fees and
any other fees payable hereunder shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
excluding the last day).
43
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The obligation of each
Bank to make a Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 3.02 and 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 of such executed counterpart, with the original
to be sent to the Agent by overnight courier);
(b) a duly executed Syndicated Loan Note and a duly executed
Money Market Loan Note for the account of each Bank complying with the
provisions of Section 2.04;
(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 date of the first
Borrowing and (ii) the representations and warranties of the Borrower
contained in Article IV are true on and as of the date of the first
Borrowing hereunder;
44
(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 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:
45
(a) a Notice of Borrowing or notification pursuant to Section
2.03(e) of acceptance of one or more Money Market Quotes, as
applicable.
(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 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.
Each Syndicated Borrowing and each Money Market 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 is a Borrowing
which consists solely of a Refunding Loan, such Borrowing shall not be deemed to
be such a representation and warranty to the effect set forth in Section 4.04(b)
as to any event, act or condition having a Material Adverse Effect which has
theretofore been disclosed in writing by the Borrower to the Banks.
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.
46
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.
SECTION 4.04. Financial Information. (a) The consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of December 28, 1996, 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
September 27, 1997, 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 28, 1996, there has been no event, act, condition or
occurrence having a Material Adverse Effect.
47
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 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
48
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 5.08.
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 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
49
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. ss. 300, (ii)
CERCLIS list or (iii) any list arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
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 Subsidiaries) is owned by the Borrower free and clear of any Lien or
adverse claim.
50
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 G,T, U or 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. ss. 18-2-22 or as defined in ss. 101 of the "Bankruptcy Code",
or Section 2 of either the "UFTA" or the "UFCA", or as defined or used in any
"Other Applicable Law" (as those terms are defined below), or (y) be unable to
pay its debts generally as such debts become due within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or
(z) have an unreasonably small capital to engage in any business or transaction,
whether current or contemplated, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii) the
obligations of the Borrower under the 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.
51
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
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
52
statements and (ii) stating whether any Default exists on the date of
such certificate and, if any Default then exists, setting forth the
details thereof and the action which the Borrower is taking or proposes
to take with respect thereto;
(d) simultaneously with the delivery of each set of annual
financial statements referred to in paragraph (a) above, 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
53
Title IV of ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice;
(i) thirty (30) days prior to the consummation thereof, a
written summary of the terms and conditions of any Permitted Sale-Lease
Back/Bond Transaction, and promptly thereafter, copies of any documents
to be executed in connection therewith reasonably requested by the
Agent and the Banks; and
(j) 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
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. 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 5.04. 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
54
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) the excess of (A) 100% of the
cumulative Net Proceeds of Capital Stock received during any period after April
1, 1995, over (B) the aggregate amount expended, directly or indirectly, after
April 1, 1995, for redemption, purchase, retirement or other acquisition of any
shares of the Borrower's Capital Stock, 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 5.05. 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 5.06. 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) deposits
required by government agencies or public utilities; (iii) trade accounts
receivable, unless such trade accounts receivable are in excess of an aggregate
amount of $10,000,000 and such trade accounts receivable are evidenced by a
promissory note or such other instrument of payment; (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 5.07, 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 5.07, 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.
55
SECTION 5.07. Investments. Except for the existing Investments listed
on Schedule 5.07, neither the Borrower nor any of its Subsidiaries shall make
Investments in any Person except as permitted by Section 5.06 and except for (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 (the Agent acknowledges and agrees that the
Lenders party to this Agreement as of the date hereof are satisfactory with
respect thereto), (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 5.06, is equal to 15% of
Consolidated Tangible Net Worth at such time; (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 5.06, is equal to 10% of
Consolidated Tangible Net Worth at such time; and (E) Investments in the bond
issued pursuant to a Permitted Sale-Lease Back/Bond Transaction.
SECTION 5.08. 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;
56
(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 principal amount
at any time outstanding not to exceed 10% of Consolidated Tangible Net
Worth.
57
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 5.09. Maintenance of Existence. Except as permitted by Section
5.11, 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 5.10. 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 5.11, and except for Subsidiaries which are shown on Schedule 4.08 as
being inactive.
SECTION 5.11. 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) 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,
or (B) a transfer of assets as a part of a Permitted Sale-Lease Back/Bond
Transaction.
58
SECTION 5.12. 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 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 5.13. 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 all material 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
59
advice from independent actuarial consultants supporting such determination.
SECTION 5.14. 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
area by companies of established repute engaged in the same or similar business.
SECTION 5.15. Change in Fiscal Year. The Borrower will not
change its Fiscal Year without the consent of the Required Banks.
SECTION 5.16. 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 5.17. 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 5.18. 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 5.19. 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
60
action to eliminate, such Environmental Release, whether or not ordered or
otherwise directed to do so by any Environmental Authority.
SECTION 5.20. 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.
SECTION 5.21 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 5.11
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.
61
SECTION 5.22 Ownership of Bonds. The Borrower shall be the
sole holder of each bond issued pursuant to a Permitted Sale- Lease Back/Bond
Transaction and shall not encumber, transfer or otherwise dispose of such bond
without the prior written consent of all Banks.
SECTION 5.23 No Restrictive Subsidiary Agreements. The
Borrower will not, nor will it permit any of its Subsidiaries to, create or
otherwise cause or suffer to exist or become effective, any consensual
restriction (excluding any such restriction under this Agreement) on the ability
of any such Subsidiary to (i) pay dividends or make any other distributions on
any of its capital stock, or (ii) pay any Debt owed to the Borrower or any of
its Subsidiaries.
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 5.12,
inclusive, Sections 5.15 or 5.20; or
(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
62
(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 in an aggregate amount in excess of
$20,000,000 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 of the Borrower or any
Subsidiary in an aggregate amount outstanding equal to or in excess of
$20,000,000 (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
its property, or shall consent to any such relief or to the appointment
of or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally 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
63
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, (i) the Agent shall, if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, (ii) any Bank may
64
terminate its obligation to fund a Money Market Loan in connection with any
relevant Money Market Quote, and (iii) the Agent shall, if requested by the
Required Banks, by notice to the Borrower declare the Notes (together with
accrued interest thereon), and all other amounts payable hereunder and under the
other Loan Documents, to be, and the Notes (together with accrued interest
thereon), and all other amounts payable hereunder and under the other Loan
Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default; provided that if any Event of Default specified in paragraph (g) or
(h) above occurs with respect to the Borrower, 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) and
all other amounts payable hereunder and under the other Loan Documents shall
automatically and without notice become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest thereon at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default. 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
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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 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
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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. With respect to the
Loans made by the Agent, in its capacity as a Bank hereunder, the Agent 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
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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 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
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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'
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
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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 Law"), or compliance by any
Bank (or its Lending Office) with any request or directive (whether or not
having the force of law) of
70
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
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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 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 (i) 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, and (ii)
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes, provided that
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any Change of Law or other incident, condition or occurrence covered by this
Section 8.03 shall have transpired prior to such termination of this Agreement
and the payment in full or cancellation of the Notes.
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:
(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,
2.10, 2.11, 6.01, 8.02 or otherwise) of a Fixed Rate 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 Fixed Rate Loan on
the date for the Fixed Rate Borrowing of which such Fixed Rate Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02 or notification of acceptance of Money Market Quotes pursuant to Section
2.03(e);
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
73
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
Fixed Rate Loan (or, in the case of a failure to prepay or borrow, the Interest
Period for such Fixed Rate Loan which would have commenced on the date of such
failure to prepay or borrow) at the applicable rate of interest for such Fixed
Rate 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 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
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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 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. The provisions of this Section 9.04 shall constitute a
continuing agreement and shall survive the termination of this Agreement and the
payment in full or cancellation of the Notes, provided that any incident,
occurrence, condition or event upon which such losses, liabilities, claims or
damages for which indemnification under this Section 9.04 are based shall have
transpired prior to such termination of this Agreement and the payment in full
or cancellation of the Notes.
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SECTION 9.05. Setoff; Sharing of Setoffs. (a) The Borrower
hereby grants to the Agent and each Bank 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 resort to collateral security (if any) 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
Bank, such purchase from each other Bank shall be rescinded and
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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) change the Commitment of any Bank or
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 Commitments or 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
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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
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, any Commitment hereunder 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
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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, Commitment
or other interest under this Agreement, other than a Money Market Loan or Money
Market Note or participating interest therein, 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 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 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, subject to clause (iii) below, by the Borrower); provided that (i) no
interest may be sold by a Bank pursuant to this paragraph (c) unless the
Assignee shall agree to assume ratably equivalent portions of the transferor
Bank's Commitment, (ii) if a Bank is assigning only a portion of its Commitment,
then, the amount of the Commitment being assigned (determined as of the
effective date of the assignment) shall be in an amount not less than
$10,000,000, (iii) 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, and (iv) a Bank may
not have more than 2 Assignees that are not then Banks at any one time. 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
79
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
$2,500 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 a
Commitment 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 each of
such Assignee and such transferor Bank.
(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 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.
(f) 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
80
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, to the extent
permitted by law, 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 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.
81
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 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,
82
to the fullest extent permitted by law, that (i) the credit or return of any
Excess shall constitute the acceptance by the Borrower of such Excess, and (ii)
the Borrower shall not seek or pursue any other remedy, legal or equitable ,
against the Agent or any 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 Commitments. 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
83
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 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
[See continuation of document on following page]
84
"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: Executive Vice President
s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Treasurer
Springs Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
85
COMMITMENTS WACHOVIA BANK, N.A.,
as Agent and as a Bank (SEAL)
$55,000,000
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
Lending Office
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF AMERICA NT & SA(SEAL)
$45,000,000 By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
Lending Office
Bank of America NT & SA
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
86
SUNTRUST BANK, ATLANTA(SEAL)
$45,000,000 By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Banking Officer
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Vice President
Lending Office
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA(SEAL)
$22,500,000 By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Relationship Manager
Lending Office
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
87
THE BANK OF TOKYO-MITSUBISHI, LTD.
(SEAL)
$22,500,000 By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Assistant Vice President
Lending Office
The Bank of Tokyo-Mitsubishi, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: 404-577-2960
MELLON BANK, N.A.(SEAL)
$20,000,000 By: s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Title: Vice President
Lending Office
Mellon Bank, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ AGENCY(SEAL)
$15,000,000 By: s/▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Vice President
and Joint General
Manager
Lending Office
The Fuji Bank, Limited,
Atlanta Agency
Marquis One Tower, Suite 2100
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
----------
TOTAL COMMITMENTS:
$225,000,000
89
EXHIBIT A-1
SYNDICATED LOAN NOTE
Atlanta, Georgia
________________, 1997
For value received, ______________, a _____________ SPRINGS
INDUSTRIES, INC., a South Carolina corporation (the "Borrower"), promises to pay
to the order of _____________________ ___________________________________, a
____________________ (the "Bank"), for the account of its Lending Office, the
principal sum of ___________________________________ AND NO/100 DOLLARS
($_______), or such lesser amount as shall equal the unpaid principal amount of
each Syndicated Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Syndicated Loan Note on the dates and at the rate or rates
provided for in the Credit Agreement. Interest on any overdue principal of and,
to the extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, or such other address as may be specified from time to time pursuant
to the Credit Agreement.
All Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto, and all repayments of
the principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Syndicated Loan Note is one of the Syndicated Loan Notes
referred to in the Credit Agreement dated as of December 17, 1997 among the
Borrower, the Banks listed on the signature
90
pages thereof and Wachovia Bank, N.A., as Agent (as the same may be amended and
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the optional and mandatory prepayment and
the repayment hereof and the acceleration of the maturity hereof, as well as the
obligation of the Borrower to pay all costs of collection, including reasonable
attorneys fees, in the event this Syndicated Loan Note is collected by law or
through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Syndicated
Loan Note to be duly executed, under seal, by its duly authorized officer as of
the day and year first above written.
SPRINGS INDUSTRIES, INC.(SEAL)
By:
-------------------------------------
Title:
91
Syndicated Loan Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
Base Rate, Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
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92
EXHIBIT A-2
MONEY MARKET LOAN NOTE
As of _______, 199_
For value received, SPRINGS INDUSTRIES, INC., a South Carolina
corporation (the "Borrower"), promises to pay to the order of ______________, a
_______________ (the "Bank"), for the account of its Lending Office, the
principal sum of TWO HUNDRED TWENTY-FIVE MILLION AND NO/100 DOLLARS
($225,000,000), or such lesser amount as shall equal the unpaid principal amount
of each Money Market Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below, on the dates and in the amounts provided in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Money Market Loan Note on the dates and at the rate or
rates provided for in the Credit Agreement referred to below. Interest on any
overdue principal of and, to the extent permitted by law, overdue interest on
the principal amount hereof shall bear interest at the Default Rate, as provided
for in the Credit Agreement. All such payments of principal and interest shall
be made in lawful money of the United States in Federal or other immediately
available funds at the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be specified
from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective
maturities thereof, the interest rates from time to time applicable thereto, and
all repayments of the principal thereof shall be recorded by the Bank and, prior
to any transfer hereof, endorsed by the Bank on the schedule attached hereto, or
on a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Money Market Loan Note is one of the Money Market Loan
Notes referred to in the Credit Agreement dated as of December 17, 1997 among
the Borrower, the Banks listed on the signature pages thereof, Wachovia Bank,
N.A., as Agent (as the same may be amended and modified from time to time, the
"Credit
93
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
optional and mandatory prepayment and the repayment hereof and the acceleration
of the maturity hereof, as well as the obligation of the Borrower to pay all
costs of collection, including reasonable attorneys fees, in the event this
Money Market Loan Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Money Market
Loan Note to be duly executed, under seal, by its duly authorized officer as of
the day and year first above written.
SPRINGS INDUSTRIES, INC.(SEAL)
By:
-----------------------------------
Title:
94
Money Market Loan Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
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95
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.:__________________________
Dear Sirs:
We have acted as counsel for SPRINGS INDUSTRIES, INC., a South
Carolina corporation (the "Borrower") and for SPRINGS WINDOW FASHIONS DIVISION,
INC., a Delaware corporation and DUNDEE ▇▇▇▇▇, INCORPORATED, a Georgia
corporation(collectively, the "Guarantors") in connection with the Credit
Agreement (the "Credit Agreement") dated as of December 17, 1997, among the
Borrower, the banks listed on the signature pages thereof and Wachovia Bank,
N.A., as Agent. Terms defined in the Credit Agreement are used herein as therein
defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. We have assumed for purposes of our opinions set
forth below that the execution and delivery of the Credit Agreement by each Bank
and by the Agent have been duly authorized by each Bank and by the Agent.
Upon the basis of the foregoing, we are of the opinion that:
96
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of South Carolina and has all
corporate powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of
the Credit Agreement and the Notes and by each Guarantor of the Guaranty and the
Contribution Agreement (i) are within the Borrower's and each Guarantor'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 any Guarantor or of
any agreement, judgment, injunction, order, decree or other instrument which to
our knowledge is binding upon the Borrower or any Guarantor and (v) to our
knowledge, except as provided in the Credit Agreement, do not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
3. Each of the Credit Agreement, the Guaranty and the
Contribution Agreement constitutes a valid and binding agreement of the Borrower
or the Guarantors, as applicable, enforceable against the Borrower and the
Guarantors, respectively, in accordance with its terms, and the Notes constitute
valid and binding obligations of the Borrower, enforceable in accordance with
their respective terms, except as such enforceability may be limited by: (i)
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and (ii) general principles of equity.
4. To our knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which
could materially adversely affect the business, consolidated financial position
or consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner questions the
validity or enforceability of the Credit Agreement, any Note, the Guaranty or
the Contribution Agreement.
97
5. 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, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
7. 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.
We are qualified to practice in the State of _______________
and do not purport to be experts on any laws other than the laws of the United
States and the State of _____________ and this opinion is rendered only with
respect to such laws. We have made no independent investigation of the laws of
any other jurisdiction.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you, any Assignee,
Participant or other Transferee under the Credit Agreement, and ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇ without our prior written consent.
Very truly yours,
98
EXHIBIT C
OPINION OF
_____________________________, SPECIAL COUNSEL
FOR THE AGENT
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:______________________
Dear Sirs:
We have participated in the preparation of the Credit
Agreement (the "Credit Agreement") dated as of December 17, 1997, among SPRINGS
INDUSTRIES, INC., a South Carolina corporation (the "Borrower"), the banks
listed on the signature pages thereof (the "Banks") and Wachovia Bank, N.A., as
Agent (the "Agent"), and have acted as special counsel for the Agent for the
purpose of rendering this opinion pursuant to Section 3.01(d) of the Credit
Agreement. Terms defined in the Credit Agreement are used herein as therein
defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact
99
and law as we have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Notes by or on
behalf of the Borrower, we are of the opinion that the Credit Agreement
constitutes a valid and binding agreement of the Borrower and each Note
constitutes valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations generally; (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and (iii) the enforceability
of certain of the remedial, waiver and other provisions of the Credit Agreement
and the Notes may be further limited by the laws of the State of Georgia;
provided that such additional laws do not, in our opinion, substantially
interfere with the practical realization of the benefits expressed in the Credit
Agreement and the Notes, except for the economic consequences of any procedural
delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect
(if any) of any law of any jurisdiction except the State of Georgia. We express
no opinion as to the effect of the compliance or noncompliance of the Agent or
any of the Banks with any state or federal laws or regulations applicable to the
Agent or any of the Banks by reason of the legal or regulatory status or the
nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
100
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated __________ ____, 19___
Reference is made to the Credit Agreement dated as of December
17, 1997 (together with all amendments and modifications thereto, the "Credit
Agreement") among Springs Industries, Inc., a South Carolina corporation (the
"Borrower"), the Banks (as defined in the Credit Agreement) and Wachovia Bank,
N.A., as Agent (the "Agent"). Terms defined in the Credit Agreement are used
herein with the same meaning.
_________________________________________ (the "Assignor") and
________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and assumes
from the Assignor, a ____% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a ____% interest (which on the Effective
Date hereof is $__________) in the Assignor's Commitment and a ________ interest
(which on the Effective Date hereof is $________) in the Syndicated Loans [and
Money Market Loans] owing to the Assignor and a ____% interest in the Note[s]
held by the Assignor (which on the Effective Date hereof is $__________).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$__________ and the aggregate outstanding principal amount of Syndicated Loans
[and Money Market Loans] owing to it (without giving effect to assignments
thereof which have not yet become effective) is $__________ ; (ii) makes no
representation or
101
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iii) attaches the Note[s] referred to in
paragraph 1 above and requests that the Agent exchange such Note[s] for [a new
Syndicated Loan Note dated , in the principal amount of $__________ payable to
the order of the Assignee and a new Money Market Loan Note dated ___________,
____ in the principal amount of $______________ payable to the order of the
Assignee] [new Notes as follows: a (i) Syndicated Loan Note dated ___________,
____ in the principal amount of $_____________ payable to the order of the
Assignor (ii) Syndicated Loan Note dated __________, _____ in the principal
amount of $_______ payable to the order of the Assignee, and (iii) and a new
Money Market Loan Note dated ___________, ____ in the principal amount of
$______________ payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; (vi) specifies as
its Lending Office (and address for notices) the office set forth beneath its
name on the signature pages hereof, (vii) represents and warrants that the
execution, delivery and performance of this Assignment and Acceptance are within
its corporate powers and have been duly authorized by all necessary corporate
action, (viii) makes the representation and warranty
102
contained in Section 9.18 of the Credit Agreement[, and (ix) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes or such other documents as are necessary to
indicate that all such payments are subject to such taxes at a rate reduced by
an applicable tax treaty].
4. The Effective Date for this Assignment and Acceptance shall
be ____________, 19__ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and to the Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after
the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent rights and obligations have been transferred to it by this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent its rights and obligations have been
transferred to the Assignee by this Assignment and Acceptance, relinquish its
rights (other than under Sections 8.03, 9.03 and 9.04 of the Credit Agreement)
and be released from its obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after
the Effective Date, the Agent shall make all payments in respect of the interest
assigned hereby to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to such acceptance by the
Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
----------------------------------
Title:
103
[NAME OF ASSIGNEE]
By:
-------------------------------------
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Agent
By:
-------------------------------------
Title:
[NAME OF BORROWER]
IF REQUIRED BY THE CREDIT AGREEMENT
By:
-------------------------------------
Title:
104
EXHIBIT E
NOTICE OF BORROWING
___________________, 199___
Wachovia Bank, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ________________
Re: Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of December 17, 1997 by and
among Springs, Industries, Inc., the Banks from time to time
parties thereto, and Wachovia Bank, N.A., as Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02
of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate
Borrowing] in the aggregate principal amount of $________ to be made on
__________, 199__, and for interest to accrue thereon at the rate established by
the Credit Agreement for [Euro-Dollar Loans][Base Rate Loans]. The duration of
the Interest Period with respect thereto shall be [1 month] [2 months] [3
months] [6 months] [30 days] [60 days] [90 days] [120 days].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this _____ day of ____________, 199_.
SPRINGS INDUSTRIES, INC.
By:
----------------------------------
Title:
105
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of December
17, 1997 (as modified and supplemented and in effect from time to time, the
"Credit Agreement") among Springs Industries, Inc., the Banks from time to time
parties thereto, and Wachovia Bank of Georgia, N.A., as Agent. Capitalized terms
used herein shall have the meanings ascribed thereto in the Credit Agreement.
Pursuant to SECTION 5.01(c) of the Credit Agreement,
_____________, the duly authorized ______________ of Springs Industries, Inc.,
hereby certifies to the Agent and the Banks that the information contained in
the Compliance Check List attached hereto is true, accurate and complete as of
__________________, ____, and that no Default is in existence on and as of the
date hereof.
SPRINGS INDUSTRIES, INC.
By:
-----------------------------------
Title:
106
COMPLIANCE CHECK LIST
SPRINGS INDUSTRIES, INC.
_____________________________
_______________, ______
1. Ratio of Consolidated Debt to Consolidated Total Tangible Capital
(Section 5.03), calculated at the end of each Fiscal Quarter
The ratio of Consolidated Debt to Consolidated Total Tangible Capital
will not at any time exceed 0.5 to 1.00. Solely for the purposes of this
Section 5.03, "Consolidated Debt" shall not include the outstanding
balance of the Borrower's deferred compensation obligations from time to
time.
(a) Consolidated Debt Schedule - 2 $
-----------
(b) Consolidated Tangible Net
Worth Schedule - 1 $
-----------
(c) sum of (a) plus (b) $
------------
Actual Ratio of (a) to (c)
------------
Maximum Ratio 0.5 to 1.0
2. Minimum Consolidated Tangible Net Worth (Section 5.04)
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) the
excess of (A) 100% of the cumulative Net Proceeds of Capital Stock
received during any period after
107
April 1, 1995, over (B) the aggregate amount expended, directly or
indirectly, after April 1, 1995, for redemption, purchase, retirement or
other acquisition of any shares of the Borrower's Capital Stock, and
(iii) 100% of the amount of any Debt converted to equity in the Borrower
during any period after April 1, 1995, calculated quarterly.
(a) $475,000,000
(b) 25% of positive Consolidated
Net Income after April 1, 1995 $
-----------
(c) Excess of 100% of cumulative Net
Proceeds of Capital Stock received after
April 1, 1995 over expenditures after
April 1, 1995 for redemption,
purchase, retirement or other acquisition
of shares of Capital Stock
(but not less than zero) $
-----------
(d) 100% of amount of Debt converted
to equity after April 1, 1995 $
-----------
Actual Consolidated Tangible
Net Worth Schedule - 1 $
-----------
Required Consolidated Tangible Net
Worth (sum of (a) plus (b) plus (c)
plus (d) $
-----------
4. Restricted Payments (Section 5.05)
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.
Total Restricted Payments during
Fiscal Year $
-----------
(a) $40,000,000
108
(b) Consolidated Net Income
after April 1, 1995 $
-----------
(c) Dividends after April 1, 1995 $
-----------
(d) Excess of expenditures after April 1, 1995
for redemption, purchase, retirement or other
acquisition of shares of Capital Stock over
amount received after April 1, 1995
from the sales of Capital Stock $
-----------
(e) Maximum Restricted Payments
made after April 1, 1995 (sum of (a)
[PLUS] [MINUS] (b) less (c) less (d) $
-----------
5. Loans and Advances (Section 5.06)
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) deposits
required by government agencies or public utilities; (iii) trade
accounts receivable, unless such trade accounts receivable are in excess
of an aggregate amount of $10,000,000 and such trade accounts receivable
are evidenced by a promissory note or such other instrument of payment;
(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 5.07, 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 5.07, 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.
109
(a) To Employees $
----------
Limitation $
----------
Excess over Limitation $ (1)
----------
(b) trade payables evidenced
by a note or other instrument $
----------
Limitation $10,000,000
Excess over Limitation $ (2)
----------
(c) To Foreign Subsidiaries--See P. 6(a) below
(c) Other loans and advances--See P. 6(b) below
6. Investments (Section 5.07)
Except for the existing Investments listed on Schedule 5.07, neither
the Borrower nor any of its Subsidiaries shall make Investments in any
Person except as permitted by Section 5.06 and except for (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 (the Agent
acknowledges and agrees that the Lenders party to this Agreement as of
the date hereof are satisfactory with respect thereto), (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
--------------------------------------------------------------------------------
(1) Any postive amount on this line shall be included in amounts permitted
in P. 6(b) below.
(2) Any positive amount on this line shall be included in amounts permitted
in P. 6(b) below.
110
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 5.06, is equal to 15% of
Consolidated Tangible Net Worth at such time; (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 5.06,
is equal to 10% of Consolidated Tangible Net Worth at such time; and (E)
Investments in the bond issued pursuant to a Permitted Sale-Lease
Back/Bond Transaction.
(a) To Foreign Subsidiaries
Loans and advances $
---------
Investments $
---------
Subtotal $
---------
Limitation $ (3)
---------
Excess over Limitation $ (4)
---------
(b) Other
Loans and advances permitted by
clause (vi) of ss. 5.06 $
---------
Investments permitted by clause
(D) of ss. 5.07 $
---------
Limitation $ (5)
---------
7. Negative Pledge (Section 5.08)
--------------------------------------------------------------------------------
(3) 15% of Consolidated Tangible Net Worth
(4) Any positive amount on this line shall be included in amounts permitted in
P. (b) below.
(5) 10% of Consolidated Tangible Net Worth
111
None of the Borrower's or any Consolidated Subsidiary's property is
subject to any Lien securing Debt, except for:
Description of Lien and Property Amount of Debt
subject to same Secured
a.___________________________ $_____________
b.___________________________ $_____________
c.___________________________ $_____________
d.___________________________ $_____________
e.___________________________ $_____________
f.___________________________ $_____________
g.___________________________ $_____________
Total$
=============
10% of Consolidated Tangible Net Worth $_____________
15% of Consolidated Tangible Net Worth $_____________
8. Consolidations, Mergers and Sales of Assets. (Section 5.11)
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)
a transfer of assets or the discontinuance or elimination of a business
line or segment (in a single
112
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, or (B) a transfer of assets as a part
of a Permitted Sale-Lease Back/Bond Transaction.
Value of assets transferred or business
lines or segments discontinued $
-----------
Limitation (not more than 10% of
Consolidated Tangible Net Worth--see
Schedule - 1) $
-----------
Excess over limitation $
-----------
113
Schedule - 1
Consolidated Tangible Net Worth
Stockholders' Equity $
Less: -----------
Surplus from write-up of assets subsequent
to January 1, 1994 $
-----------
Intangibles $
-----------
Loans to stockholders, directors
officers or employees $
-----------
Capital Stock shown as assets $
-----------
Deferred expenses(1) $
-----------
Consolidated Tangible Net Worth $
===========
Intangibles Description
(a) $
---------------------------------------- -----------
(b) $
---------------------------------------- -----------
(c) $
---------------------------------------- -----------
Other $
-----------
Total $
------------------------------ ===========
(1) To the extent not included as an intangible.
114
Schedule - 2
Consolidated Debt
INTEREST
RATE MATURITY TOTAL
---- -------- -----
Secured
-------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
Total Secured
Unsecured
---------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
Total Unsecured $
-------
Guarantees
----------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
Total $
-------
Redeemable Preferred Stock $
-------------------------- -------
Total $
-------
Other Debt
----------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
$
---------------------------------- ------- ------- -------
Total Consolidated Debt $
=======
115
EXHIBIT G
CLOSING CERTIFICATE
Reference is made to the Credit Agreement (the "Credit Agreement")
dated as of December 17, 1997, among Springs Industries, Inc., the Banks listed
therein, and Wachovia Bank of Georgia, N.A., as Agent. Capitalized terms used
herein have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement__________,
____________, the duly__________ authorized of Springs Industries, Inc. hereby
certifies to the Agent and the Banks that (i) no Default has occurred and is
continuing as of the date hereof, and (ii) the representations and warranties
contained in Article IV of the Credit Agreement are true on and as of the date
hereof.
Certified as of this ___ day of _______________, 1997.
By:
-------------------------------------
Pinted Name:
-------------------------
Title:
-------------------------------
116
EXHIBIT I
FORM OF GUARANTY AGREEMENT
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 17th day of
December, 1997, by SPRINGS WINDOW FASHIONS DIVISION, INC., a Delaware
corporation, and DUNDEE ▇▇▇▇▇, INCORPORATED, a Georgia corporation (each a
"Guarantor", and collectively, the "Guarantors", which terms shall include any
Domestic Subsidiary of Springs Industries, Inc. which becomes a Guarantor
pursuant to Section 15 hereof and Section 5.21 of the Credit Agreement referred
to below) in favor of the Agent, for the ratable benefit of the Banks, under the
Credit Agreement referred to below;
W I T N E S S E T H
WHEREAS, SPRINGS INDUSTRIES, INC., a South Carolina
corporation (the "Borrower"), and WACHOVIA BANK, N.A., as Agent (the "Agent"),
and certain other Banks from time to time party thereto have entered into a
certain Credit Agreement dated as of even date herewith (as it may be amended or
modified further from time to time, the "Credit Agreement"), providing, subject
to the terms and conditions thereof, for extensions of credit to be made by the
Banks to the Borrower which will the benefit the Guarantors;
WHEREAS, it is required by Section 3.01(g) of the Credit
Agreement, that the Guarantors execute and deliver this Guaranty whereby the
Guarantors shall guarantee the payment when due of all principal, interest and
other amounts that shall be at any time payable by the Borrower under the Credit
Agreement, the Notes and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support
that the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, whether directly or
indirectly, and in order to induce the Banks and the Agent to enter into the
Credit Agreement, the Guarantors are willing to guarantee the obligations of the
Borrower under the Credit Agreement, the Notes, and the other Loan Documents;
117
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors contained in Article
IV of the Credit Agreement (which representations and warranties shall be deemed
to have been renewed by the Guarantors upon each Borrowing under the Credit
Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long as
any Bank has any Commitment outstanding under the Credit Agreement or any amount
payable under the Credit Agreement or any Note shall remain unpaid, the
Guarantors will fully comply with those covenants set forth in Article V of the
Credit Agreement pertaining to the Guarantors, and the Guarantors incorporate
herein by reference as fully as if set forth herein all of such covenants.
SECTION 4. The Guaranty. The Guarantors hereby unconditionally
and jointly and severally guarantee the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) of the principal of and
interest on each Note issued by the Borrower pursuant to the Credit Agreement,
and the full and punctual payment of all other amounts payable by the Borrower
under the Credit Agreement (including, without limitation, all Syndicated Loans
and Swing Loans and interest thereon, and all compensation and indemnification
amounts and fees payable pursuant to the Credit Agreement and the Agent's Letter
Agreement (all of the foregoing obligations being referred to collectively as
the "Guaranteed Obligations"). Upon failure by the Borrower to pay punctually
any such amount, each of the Guarantors agrees that it shall forthwith on demand
pay the amount not so paid at the place and in the manner specified in the
Credit Agreement, the relevant Note or the relevant Loan Document, as the case
may be.
118
SECTION 5. Guaranty Unconditional. The obligations of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement,
compromise, waiver or release in respect of any obligation of the
Borrower under the Credit Agreement, any Note, or any other Loan
Document, by operation of law or otherwise or any obligation of any
other guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or
supplement to the Credit Agreement, any Note, or any other Loan
Document;
(iii) any release, nonperfection or
invalidity of any direct or indirect security for any obligation of the
Borrower under the Credit Agreement, any Note, any Loan Document, or any
obligations of any other guarantor of any of the Guaranteed Obligations;
(iv) any change in the ownership of the
Borrower or corporate structure or ownership of any other Guarantor or
any other guarantor of any of the Guaranteed Obligations, or any
insolvency, bankruptcy, reorganization or other similar proceeding
affecting the Borrower, or any other Guarantor or any other guarantor of
the Guaranteed Obligations, or its assets or any resulting release or
discharge of any obligation of the Borrower, or any other Guarantor or
any other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or
other rights which the Guarantors may have at any time against the
Borrower, any other Guarantor or any other guarantor of any of the
Guaranteed Obligations, the Agent, any Bank or any other Person, whether
in connection herewith or any unrelated transactions, provided that
nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(vi) any invalidity or unenforceability
relating to or against the Borrower, or any other Guarantor or any other
guarantor of any of the Guaranteed Obligations,
119
for any reason related to the Credit Agreement, any other Loan Document,
or any other Guaranty, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower, or any other
Guarantor or any other guarantor of the Guaranteed Obligations, of the
principal of or interest on any Note or any other amount payable by the
Borrower under the Credit Agreement, the Notes, or any other Loan
Document; or
(vii) any other act or omission to act or
delay of any kind by the Borrower, any other Guarantor or any other
guarantor of the Guaranteed Obligations, the Agent, any Bank or any
other Person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantors' obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances. The Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Borrower under the Credit Agreement or any
other Loan Document is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Principal under the Credit Agreement,
any Note or any other Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other
120
Loan Document shall nonetheless be payable by the Guarantors hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient at
its address or telecopier number set forth on the signature pages hereof or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Agent in accordance with the provisions of Section 9.01
of the Credit Agreement. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice, 3
Domestic Business Days after such communication is deposited in the mails with
first class postage prepaid, in each case given or addressed as aforesaid.
SECTION 10. No Waivers; Postponement of Subrogation. (a) No
failure or delay by the Agent or any Banks in exercising any right, power or
privilege hereunder 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
provided in this Guaranty, the Credit Agreement, the Notes, and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
(b) Each Guarantor agrees that any right of subrogation or any
other such similar right it may have against the Borrower or any other Guarantor
to enforce any remedy which the Agent or any Bank may have against the Borrower
or any other Guarantor shall not be exercised or enforced unless and until all
of the obligations of Borrower to the Agent and the Banks have been paid and
performed in full.
SECTION 11. Successors and Assigns. This Guaranty is for the
benefit of the Agent and the Banks and their respective successors and assigns
and in the event of an assignment of any amounts payable under the Credit
Agreement, the Notes, or the other Loan Documents, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty may not be assigned by the Guarantors without the
prior written consent of the Agent and the
121
Required Banks, and shall be binding upon the Guarantors and their respective
successors and permitted assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Agent, with the consent of the
Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTORS AND THE AGENT
HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE COURT
SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE GUARANTORS AND THE Agent HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by
the Guarantors hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority pursuant
and subject to the provisions of Section 2.11(c) of the Credit Agreement, the
terms of which are incorporated herein by reference as to the Guarantors as
fully as if set forth herein, and for such purposes, the rights and obligations
of the Borrower under such Section shall devolve to the Guarantors as to
payments required to be made by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors.
Section 5.21 of the Credit Agreement provides that Domestic Subsidiaries which
are not Guarantors may elect to become Guarantors, by, among other things,
executing and delivering to the Agent a counterpart of this Guaranty and the
122
Contribution Agreement. Any Domestic Subsidiary which executes and delivers to
the Agent a counterpart of this Guaranty and the Contribution Agreement shall be
a Guarantor for all purposes hereunder. Under certain circumstances described in
paragraph (b) of Section 5.21 of the Credit Agreement, a Guarantor which is to
be sold may obtain from the Agent a written release from this Guaranty pursuant
to the provisions of such paragraph and upon obtaining such written release, any
such former Guarantor shall no longer be a Guarantor hereunder. Each other
Guarantor consents and agrees to any such release and agrees that no such
release shall affect its obligations hereunder.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty
to be duly executed, under seal, by their respective authorized officers as of
the date first above written.
SPRINGS WINDOW FASHIONS
DIVISION, INC.(SEAL)
By:
------------------------------------
Title:
Springs Window Fashions
Division, Inc.
c/o Springs Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
DUNDEE ▇▇▇▇▇, INCORPORATED(SEAL)
By:
------------------------------------
Title:
Dundee ▇▇▇▇▇, Incorporated
c/o Springs Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
123
EXHIBIT J
FORM OF CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into
as of _______________________ ____, 1997 by and among SPRINGS WINDOW FASHIONS
DIVISION, INC., and DUNDEE ▇▇▇▇▇, INCORPORATED (each a "Subsidiary Guarantor",
and collectively, the "Subsidiary Guarantors"), which terms shall include any
Domestic Subsidiary of Springs Industries, Inc. which becomes a Guarantor
pursuant to the last paragraph hereof, Section 15 of the Guaranty referred to
below and Section 5.21 of the Credit Agreement referred to below)). The Borrower
and each of the Subsidiary Guarantors are sometimes hereinafter referred to
individually as a "Contributing Party" and collectively as the "Contributing
Parties").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as
of even date herewith among the Borrower, the Banks party thereto and Wachovia
Bank, N.A., as Agent (such agreement, as the same may from time to time be
amended, modified, restated or extended, being hereinafter referred to as the
"Credit Agreement"; capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement), the Banks have agreed to extend
financial accommodations to the Borrower;
WHEREAS, as a condition, among others, to the willingness of
the Agent and the Banks to enter into the Credit Agreement, they have required
that each Subsidiary Guarantor, along with the Borrower, execute and deliver
that certain Guaranty, dated as of even date herewith (such agreement, as the
same may from time to time be amended, modified, restated or extended, being
hereinafter referred to as the "Guaranty"), pursuant to which, among other
things, the Subsidiary Guarantors have jointly and severally agreed to guarantee
the "Guaranteed Obligations" (as defined in the Guaranty); and
WHEREAS, each Subsidiary Guarantor is a direct or indirect
subsidiary of the Borrower and is engaged in businesses related to those of the
Borrower and each other Subsidiary Guarantor, and each of the Subsidiary
Guarantors will derive
124
direct or indirect economic benefit from the effectiveness and existence of the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce each Subsidiary Guarantor to
enter into the Guaranty, it is agreed as follows:
To the extent that any Subsidiary Guarantor shall, under the
Guaranty, make a payment (a "Subsidiary Guarantor Payment") of a portion of the
Guaranteed Obligations, then, without limiting its rights of subrogation against
the principal, such Subsidiary Guarantor shall be entitled to contribution and
indemnification from, and be reimbursed by, each of the other Contributing
Parties in an amount, for each such Contributing Party, equal to a fraction of
such Subsidiary Guarantor Payment, the numerator of which fraction is such
Contributing Party's Allocable Amount and the denominator of which is the sum of
the Allocable Amounts of all of the Contributing Parties.
As of any date of determination, the "Allocable Amount" of
each Contributing Party shall be equal to the maximum amount of liability which
could be asserted against such Contributing Party hereunder with respect to the
applicable Subsidiary Guarantor Payment without (i) rendering such Contributing
Party "insolvent" within the meaning of Section 101(31) of the Federal
Bankruptcy Code (the "Bankruptcy Code") or Section 2 of either the Uniform
Fraudulent Transfer Act (the "UFTA") or the Uniform Fraudulent Conveyance Act
(the "UFCA"), (ii) leaving such Contributing Party with unreasonably small
capital, within the meaning of Section 548 of the Bankruptcy Code or Section 4
of the UFTA or Section 5 of the UFCA, or (iii) leaving such Contributing Party
unable to pay its debts as they become due within the meaning of Section 548 of
the Bankruptcy Code or Section 4 of the UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights
of the Contributing Parties, and nothing set forth in this Agreement is intended
to or shall impair the obligations of the Subsidiary Guarantors, jointly and
severally, to pay any amounts, as and when the same shall become due and payable
in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute
125
assets in favor of each Subsidiary Guarantor to which such contribution and
indemnification is owing.
This Agreement shall become effective upon its execution by
each of the Contributing Parties and shall continue in full force and effect and
may not be terminated or otherwise revoked by any Contributing Party until all
of the Guaranteed Obligations shall have been indefeasibly paid in full (in
lawful money of the United States of America) and discharged and the Credit
Agreement and financing arrangements evidenced and governed by the Credit
Agreement shall have been terminated. Each Contributing Party agrees that if,
notwithstanding the foregoing, such Contributing Party shall have any right
under applicable law to terminate or revoke this Agreement, and such
Contributing Party shall attempt to exercise such right, then such termination
or revocation shall not be effective until a written notice of such revocation
or termination, specifically referring hereto and signed by such Contributing
Party, is actually received by each of the other Contributing Parties and by the
Agent at its notice address set forth in the Credit Agreement. Such notice shall
not affect the right or power of any Contributing Party to enforce rights
arising prior to receipt of such written notice by each of the other
Contributing Parties and the Agent. If any Bank grants additional loans to the
Borrower or takes other action giving rise to additional Guaranteed Obligations
after any Contributing Party has exercised any right to terminate or revoke this
Agreement but before the Agent receives such written notice, the rights of each
other Contributing Party to contribution and indemnification hereunder in
connection with any Subsidiary Guarantor Payments made with respect to such
loans or Guaranteed Obligations shall be the same as if such termination or
revocation had not occurred.
Section 5.21 of the Credit Agreement provides that Domestic
Subsidiaries may elect to become Guarantors, by, among other things, executing
and delivering to the Agent a counterpart of the Guaranty and of this
Contribution Agreement. Any Subsidiary which executes and delivers to the Agent
a counterpart of the Guaranty and of this Contribution Agreement shall be a
Subsidiary Guarantor for all purposes hereunder. Under certain circumstances
described in paragraph (b) of Section 5.21 of the Credit Agreement, Guarantors
which are to be sold may obtain from the Agent a written release from the
Guaranty pursuant to the provisions of such sentence, and upon obtaining such
written release, any such former Guarantor shall no longer be a
126
Subsidiary Guarantor or Contributing Party hereunder, and such release shall
automatically and without further action constitute a release by each other
Contributing Party of all obligations of such Subsidiary hereunder. The Borrower
and each other Subsidiary Guarantor consents and agrees to any such release and
agrees that no such release shall affect its obligations hereunder, except as to
the former Guarantor so released.
IN WITNESS WHEREOF, each Contributing Party has executed and
delivered this Agreement, under seal, as of the date first above written.
SPRINGS INDUSTRIES, INC.(SEAL)
By:
-----------------------------------------
Title:
Springs Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
SPRINGS WINDOW FASHIONS
DIVISION, INC.(SEAL)
By:
-----------------------------------------
Title:
Springs Window Fashions
Division, Inc.
c/o Springs Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇(▇▇▇▇)
By:
-----------------------------------------
Title:
Dundee ▇▇▇▇▇, Incorporated
c/o Springs Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
128
EXHIBIT K
MONEY MARKET QUOTE REQUEST
Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: _________________________
Re: Money Market Quote Request
This Money Market Quote Request is given in accordance with
Section 2.03 of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of December 17, 1997, among SPRINGS INDUSTRIES,
INC., the Banks from time to time parties thereto, and WACHOVIA BANK, N.A., as
Agent. Terms defined in the Credit Agreement are used herein as defined therein.
The Borrower hereby requests that the Agent obtain quotes for a Money
Market Borrowing based upon the following:
1. The proposed date of the Money Market Borrowing shall be
______________, 19_____ (the "Money Market Borrowing
Date").(1)(*)
2. The aggregate amount of the Money Market Borrowing shall be
$_________.(2)
3. The Stated Maturity Date(s) applicable to the Money Market
Borrowing shall be days.(3)
------------------
* All numbered footnotes appear on the last page of this Exhibit K.
129
Very truly yours,
SPRINGS INDUSTRIES, INC.
By:
--------------------------------------
Title:
------------------------
(1) The date must be a Euro-Dollar Business Day.
(2) The amount of the Money Market Borrowing is subject to Section 2.03(a) and
(b).
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii). The
Borrower may request that up to 2 different Stated Maturity Dates be
applicable to any Money Market Borrowing, provided that (i) each such
Stated Maturity Date shall be deemed to be a separate Money Market Quote
Request and (ii) the Borrower shall specify the amounts of such Money
Market Borrowing to be subject to each such different Stated Maturity Date.
130
EXHIBIT L
MONEY MARKET QUOTE
Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ______________________
Re: Money Market Quote to Springs Industries, Inc.
This Money Market Quote is given in accordance with Section
2.03(c)(ii) of the Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of December 17, 1997, among SPRINGS INDUSTRIES,
INC. (the "Borrower"), the Banks from time to time parties thereto, and WACHOVIA
BANK, N.A., as Agent. Terms defined in the Credit Agreement are used herein as
defined therein.
In response to the Borrower's Money Market Quote Request dated
________________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank:
2. Person to contact
at Quoting Bank:
3. Date of Money Market Borrowing:(1)(*)
4. We hereby offer to make Money Market Loan(s) in the following
maximum principal amounts for the following Interest Periods and at the
following rates:
Maximum Stated
Principal Maturity
Amount(2) Date(3) Rate Per Annum(4)
--------- -------- -----------------
-------------------
(*) All numbered footnotes appear on the last page of this Exhibit I.
131
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate(s) us to make the Money Market Loan(s) for which
any offer(s) [is] [are] accepted, in whole or in part (subject to the last
sentence of Section 2.03(c)(i) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:
--------------------------------------
Authorized Officer
------------------------------
----------
(1) As specified in the related Money Market Quote Request.
(2) The principal amount bid for each Stated Maturity Date may not exceed
the principal amount requested. Money Market Quotes must be made for at
least $5,000,000 or a larger integral multiple of $1,000,000.
(3) The Stated Maturity Dates are subject to Section 2.03(b)(iii).
(4) Subject to Section 2.03(c)(ii)(C).
132
SCHEDULE 4.04
FINANCIAL INFORMATION DISCLOSURES
No disclosure required
133
SCHEDULE 4.06
ERISA
No exceptions
134
Schedule 4.08
SUBSIDIARIES
================================================================================================
State Holding
Subsidiary Incorporated Guarantor Company Inactive
---------- ------------ --------- ------- --------
DOMESTIC:
------------------------------------------------------------------------------------------------
Catawba Trucking Co., Inc. SC X
------------------------------------------------------------------------------------------------
Lancaster International Sales SC X
Corporation
------------------------------------------------------------------------------------------------
Springmaid International, SC X
Inc.
------------------------------------------------------------------------------------------------
Springs Management SC X
Company, Inc.
------------------------------------------------------------------------------------------------
Warbird Corporation DE X
------------------------------------------------------------------------------------------------
Springs Window Fashions DE X
Division, Inc.
------------------------------------------------------------------------------------------------
Springs Industries (Asia), DE
Inc.
------------------------------------------------------------------------------------------------
Dundee ▇▇▇▇▇, Incorporated GA X
------------------------------------------------------------------------------------------------
Springs Sales Corporation U.S.V.I. N/A N/A N/A
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
FOREIGN*
------------------------------------------------------------------------------------------------
Springs Canada, Inc. Ontario N/A N/A N/A
------------------------------------------------------------------------------------------------
Springs de Mexico, S.A. de Mexico N/A N/A N/A
C.V.
================================================================================================
Subsidiaries pooled and excluded up to 15% of Consolidated Net Worth.
135
SCHEDULE 4.14
ENVIRONMENTAL MATTERS
CERCLIS
None
National Priorities List/CERCLIS
Wamchem Site
▇▇▇▇▇▇▇ Chemical
601 Bypass Site
Refuse Hideaway
State CERCLIS List
York Haven, PA (ISCC)