EXHIBIT 10.uu
AMENDMENT NO. 6
THIS AMENDMENT NO. 6 (the "Amendment") dated as of February 24, 1999, to
the Credit Agreement referenced below, is by and among MACSAVER FINANCIAL
SERVICES, INC., a Delaware corporation, (the "Borrower"), HEILIG-MEYERS COMPANY,
a Virginia corporation (the "Company"), the Lenders identified therein, WACHOVIA
BANK, N.A. (formerly, Wachovia Bank of Georgia, N.A.), as Administrative Agent,
NATIONSBANK, N.A., as Documentation Agent, and CRESTAR BANK and FIRST UNION
NATIONAL BANK (formerly, First Union National Bank of Virginia), as Co-Agents.
Terms used but not otherwise defined shall have the meanings provided in the
Credit Agreement.
W I T N E S S E T H
WHEREAS, the Lenders have established a $400 million credit facility for
the benefit of the Borrower pursuant to the terms of that Credit Agreement dated
as of July 18, 1995 (as amended and modified, the "Credit Agreement") among the
Borrower, the Company, the Lenders identified therein and Wachovia Bank of
Georgia, N.A., as Administrative Agent;
WHEREAS, the Borrower has requested certain modifications to the Credit
Agreement;
WHEREAS, the modifications requested hereby require the consent of the
Required Lenders; and
WHEREAS, the Required Lenders have consented to the requested modifications
on the terms and conditions set forth herein and have authorized the
Administrative Agent to enter into this Amendment on their behalf to give effect
to this Amendment;
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:
1. Amendment. The Credit Agreement is amended and modified in the following
respects:
1.1 The following definitions are amended or added in Section 1.1 to
read as follows:
"Amendment Date" means February 24, 1999 (being the date of
Amendment No. 6).
"Committed Loans" means, collectively, Revolving Loans, Swingline
Loans and LOC Obligations.
"Interest Payment Date" means (i) as to any Swingline Loan, the
last day of each Interest Period for such Swingline Loan or such other
dates as the Swingline Lender may agree or require, (ii) as to any
Base Rate Loan, the last day of each March, June, September and
December, the date of repayment of principal of such Loan and the
Termination Date, and (iii) as to any Eurodollar Loan or Competitive
Loan, the last day of each Interest Period for such Loan, the date of
repayment of principal of such Loan and on the Termination Date, and
in addition where the applicable Interest Period is more than three
months, then also on the date three months from the beginning of the
Interest Period, and each three months thereafter until the end of
such Interest Period. If an Interest Payment Date falls on a date
which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day, except that in the case
of Eurodollar Loans where the next succeeding Business Day falls in
the next succeeding calendar month, then on the next preceding
Business Day.
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"Interest Period" means (i) with respect to any Eurodollar Loan,
a period of one, two, three or six months' duration, as the Borrower
may elect, commencing in each case on the date of the borrowing
(including extensions and conversions), (ii) with respect to any
Swingline Loan, a period of such duration as the Borrower may request
and the Swingline Lender may agree in accordance with the provisions
of Section 2.4(b)(i), commencing in each case on the date of
borrowing, and (iii) with respect to any Competitive Loan, a period
beginning on the date of borrowing and ending on the date specified in
the respective Competitive Bid whereby the offer to make such
Competitive Loan was extended, which shall be not less than 7 days nor
more than 180 days' duration; provided, however, (A) if any Interest
Period would end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day (except
that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(B) no Interest Period shall extend beyond the Termination Date, and
(C) in the case of Eurodollar Loans, where an Interest Period begins
on a day for which there is no numerically corresponding day in the
calendar month in which the Interest Period is to end, such Interest
Period shall end on the last Business Day of such calendar month.
"Issuing Lender" means Wachovia Bank, N.A., or any other Lender
which may agree to issue Letters of Credit hereunder.
"Letters of Credit" means any letter of credit issued under
Section 2.3(a).
"LOC Committed Amount" means such term as defined in Section
2.3(a).
"LOC Documents" means any Letter of Credit, together with
amendments and modifications relating thereto, documents delivered in
connection therewith, applications relating thereto, and agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to a particular Letter of Credit)
governing or providing for (i) the rights and obligations of the
parties concerned or at risk, or (ii) any collateral security for such
obligations.
"LOC Obligations" means, at any time, the sum of (i) the
aggregate maximum amount available to be drawn under Letters of
Credit, assuming compliance with all requirements for drawings
thereunder, and (ii) the aggregate amount of all drawings under
Letters of Credit which have not been reimbursed.
"Note" or "Notes" means the Committed Notes, the Competitive
Notes and/or the Swingline Note, collectively, separately or
individually, as appropriate.
"Participation Interest" means the purchase by a Lender of a
participation in LOC Obligations as provided in Section 2.3(c), in
Swingline Loans as provided in Section 2.4(b)(iii) and in Loans as
provided in Section 3.12.
"Quoted Rate" means, with respect to a Quoted Rate Swingline
Loan, the fixed or floating percentage rate per annum, if any, offered
by the Swingline Lender and accepted by the Borrower in accordance
with the provisions hereof.
"Quoted Rate Swingline Loan" means a Swingline Loan bearing
interest at the Quoted Rate.
"Swingline Committed Amount" means the amount of the Swingline
Lender's Commitment as specified in Section 2.4(a).
"Swingline Lender" means Wachovia Bank, N.A., or any other Lender
which may agree to make Swingline Loans hereunder, and their
respective successors.
"Swingline Loan" means a swingline revolving loan made by the
Swingline Lender pursuant to the provisions of Section 2.4.
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender evidencing the Swingline Loans in
substantially the form attached as Schedule 2.4(a), as such promissory
note may be amended, modified, supplemented, extended, renewed or
replaced from time to time.
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1.2 Section 2 is amended and restated to read as follows:
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make revolving
credit loans (the "Revolving Loans") to the Borrower for the purposes
hereinafter set forth; provided that (i) with regard to each Lender
individually, such Lender's Commitment Percentage of Committed Loans shall
not exceed such Lender's Revolving Committed Amount, and (ii) with regard
to the Lenders collectively, the aggregate amount of outstanding Committed
Loans plus the aggregate amount of outstanding Competitive Loans shall not
exceed FOUR HUNDRED MILLION DOLLARS (as such aggregate maximum amount may
be reduced from time to time, the "Revolving Committed Amount"). Revolving
Loans may consist of Base Rate Loans or Eurodollar Loans, or a combination
thereof, as the Borrower may request, and may be repaid and reborrowed in
accordance with the provisions hereof.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving
Loan borrowing by written notice (or telephone notice promptly
confirmed in writing) to the Administrative Agent not later than 11:00
A.M. (Atlanta, Georgia time) on the Business Day of the requested
borrowing in the case of Base Rate Loans, and on the third Business
Day prior to the date of the requested borrowing in the case of
Eurodollar Loans. Each such request for borrowing shall be irrevocable
and shall specify (A) that a Revolving Loan is requested, (B) the date
of the requested borrowing (which shall be a Business Day), (C) the
aggregate principal amount to be borrowed, and (D) whether the
borrowing shall be comprised of Base Rate Loans, Eurodollar Loans or a
combination thereof, and if Eurodollar Loans are requested, the
Interest Period(s) therefor. A form of Notice of Borrowing (a "Notice
of Borrowing") is attached as Schedule 2.1(b)(i). If the Borrower
shall fail to specify in any such Notice of Borrowing (I) an
applicable Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of one
month, or (II) the type of Revolving Loan requested, then such notice
shall be deemed to be a request for a Base Rate Loan hereunder. The
Administrative Agent shall give notice to each Lender promptly upon
receipt of each Notice of Borrowing pursuant to this Section
2.1(b)(i), the contents thereof and each such Lender's share of any
borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Revolving Loan borrowing shall be in a
minimum aggregate amount of $2,000,000 (or the remaining amount of the
Revolving Committed Amount, if less), in the case of Base Rate Loans,
and $5,000,000, in the case of Eurodollar Loans, and in each case
integral multiples of $1,000,000 in excess thereof.
(iii) Advances. Each Lender will make its Commitment Percentage
of each Revolving Loan borrowing available to the Administrative Agent
for the account of the Borrower at the office of the Administrative
Agent specified in Schedule 2.1(a), or at such other office as the
Administrative Agent may designate in writing, by 1:00 P.M. (Atlanta,
Georgia time) on the date specified in the applicable Notice of
Borrowing in Dollars and in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to
the Borrower by the Administrative Agent by crediting the account of
the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and
in like funds as received by the Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1, Revolving
Loans shall bear interest a per annum rate equal to:
(i) Base Rate Loans. During such periods as Revolving Loans shall
be comprised of Base Rate Loans, the sum of the Base Rate plus the
Applicable Percentage;
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(ii) Eurodollar Loans. During such periods as Revolving Loans
shall be comprised of Eurodollar Loans, the sum of the Adjusted
Eurodollar Rate plus the Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each
applicable Interest Payment Date.
(e) Committed Notes. The Revolving Loans shall be evidenced by a duly
executed Committed Note in favor of each Lender.
(f) Maximum Number of Eurodollar Loans. The Borrower will be limited
to a maximum number of ten (10) Eurodollar Loans outstanding at any time.
For purposes hereof, Eurodollar Loans with separate or different Interest
Periods will be considered as separate Eurodollar Loans even if their
Interest Periods expire on the same date.
2.2 Competitive Loan Subfacility.
(a) Competitive Loans. During the Commitment Period, subject to the
terms and conditions hereof, from such time as the Company shall have
attained, and for so long as the Company shall maintain
(A) Pricing Level I or II status, where the Company does not have
a senior unsecured (non-credit enhanced) long term debt rating from
both S&P and Moody's, or
(B) Pricing Level I, II, III or IV status, where the Company has
a senior unsecured (non-credit enhanced) long term debt rating from
both S&P and Moody's,
the Borrower may from time to time request and each Lender may, in its
sole discretion, agree to make, Competitive Loans to the Borrower;
provided, however, (i) the aggregate amount of Competitive Loans shall
not at any time exceed the aggregate Revolving Committed Amount (the
"Competitive Loan Maximum Amount"), and (ii) the sum of the aggregate
amount of Committed Loans plus the aggregate amount of Competitive
Loans shall not at any time exceed the aggregate Revolving Committed
Amount. Each Competitive Loan shall be not less than $10,000,000 in the
aggregate and integral multiples of $1,000,000 in excess thereof.
(b) Competitive Bid Requests. The Borrower may solicit
Competitive Bids by delivery of a Competitive Bid Request
substantially in the form of Schedule 2.2(b)-1 to the Administrative
Agent by 11:00 A.M. (Atlanta, Georgia time) on a Business Day not less
than one (1) nor more than four (4) Business Days prior to the date of
a requested Competitive Loan borrowing. A Competitive Bid Request
shall specify (i) the date of the requested Competitive Loan borrowing
(which shall be a Business Day), (ii) the amount of the requested
Competitive Loan borrowing and (iii) the applicable Interest Periods
requested and shall be accompanied by payment of the Competitive Bid
Request Fee, if any. The Administrative Agent shall promptly notify
the Lenders of its receipt of a Competitive Bid Request and the
contents thereof and invite the Lenders to submit Competitive Bids in
response thereto. A form of such notice is provided in Schedule
2.2(b)-2. No more than one Competitive Bid Request shall be submitted
at any one time and Competitive Bid Requests may be made no more
frequently than once every five (5) Business Days.
(c) Competitive Bid Procedure. Each Lender may, in its sole
discretion, make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid must be
received by the Administrative Agent not later than 10:00 A.M.
(Atlanta, Georgia time) on the Business Day next succeeding the date
of receipt by such Lender of a related Competitive Bid Request;
provided, however, in the event the Administrative Agent (or an
Affiliate of the Administrative Agent), in its capacity as a Lender,
should elect to submit a Competitive Bid in response to a related
Competitive Bid Request, it shall submit such Competitive Bid directly
to the Borrower by 9:45 A.M. (Atlanta, Georgia time) on the date such
Competitive Bid is due. A Lender may offer to make all or part of the
requested Competitive Loan borrowing and may submit multiple
Competitive Bids in response to a Competitive Bid Request. The
Competitive Bid shall specify (i) the particular Competitive Bid
Request as to which the Competitive Bid is submitted, (ii) the minimum
(which shall be not less than $1,000,000 and integral multiples of
$500,000 in excess thereof) and maximum principal amounts of the
requested Competitive Loan or Loans which the Lender is willing to
make, and (iii) the applicable interest rate or rates and Interest
Period or Periods therefor. A form of such Competitive Bid is provided
in Schedule 2.2(c). A Competitive Bid submitted by a Lender in
accordance with the provisions hereof shall be irrevocable. The
Administrative Agent shall promptly notify the Borrower of all
Competitive Bids made and the terms thereof. The Administrative Agent
shall send a copy of each of the Competitive Bids to the Borrower for
its records as soon as practicable.
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(d) Acceptance of Competitive Bids. The Borrower may, in its sole
and absolute discretion, subject only to the provisions of this
subsection (d), accept or refuse any Competitive Bid offered to it. To
accept a Competitive Bid, the Borrower shall give written notification
(or telephone notice promptly confirmed in writing) substantially in
the form of Schedule 2.2(e) of its acceptance of any or all such
Competitive Bids to the Administrative Agent by 11:00 A.M. (Atlanta,
Georgia time) on the date on which notice of election to make a
Competitive Bid is required to be given by the Lenders pursuant to the
terms of subsection (c) above; provided, however, (i) the failure by
the Borrower to give timely notice of its acceptance of a Competitive
Bid shall be deemed to be a refusal thereof, (ii) the Borrower may
accept Competitive Bids only in ascending order of rates, (iii) the
aggregate amount of Competitive Bids accepted by the Borrower shall
not exceed the principal amount specified in the Competitive Bid
Request, (iv) the Borrower may accept a portion of a Competitive Bid
in the event, and to the extent, acceptance of the entire amount
thereof would cause the Borrower to exceed the principal amount
specified in the Competitive Bid Request, subject however to the
minimum amounts provided herein (and provided that where two or more
such Lenders may submit such a Competitive Bid at the same such
Competitive Bid Rate, then pro rata between or among such Lenders) and
(v) no bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a minimum principal amount of $1,000,000 and
integral multiples of $500,000 in excess thereof, except that where a
portion of a Competitive Bid is accepted in accordance with the
provisions of subsection (iv) hereof, then in a minimum principal
amount of $100,000 and integral multiples thereof (but not in any
event less than the minimum amount specified in the Competitive Bid),
and in calculating the pro rata allocation of acceptances of portions
of multiple bids at a particular Competitive Bid Rate pursuant to
subsection (iv) hereof, the amounts shall be rounded to integral
multiples of $100,000 in a manner which shall be in the discretion of
the Borrower. A notice of acceptance of a Competitive Bid given by the
Borrower in accordance with the provisions hereof shall be
irrevocable. The Administrative Agent shall, not later than 12:00 Noon
(Atlanta, Georgia time) on the date on which notice of the election to
make a Competitive Bid is required to be given, notify the
Administrative Agent and each bidding Lender whether or not its
Competitive Bid has been accepted (and if so, in what amount and at
what Competitive Bid Rate), and each successful bidder will thereupon
become bound, subject to the other applicable conditions hereof, to
make the Competitive Loan in respect of which its bid has been
accepted.
(e) Funding of Competitive Loans. Each Lender which is to make a
Competitive Loan shall make its Competitive Loan borrowing available
to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Schedule 2.1(a), or at
such other office as the Administrative Agent may designate in
writing, by 1:30 P.M. (Atlanta, Georgia time) on the date specified in
the Competitive Bid Request in Dollars and in funds immediately
available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by crediting the account of the
Borrower on the books of such office with the aggregate of the amount
made available to the Administrative Agent by the Competitive Lenders
and in like funds as received by the Administrative Agent.
(f) Maturity of Competitive Loans. Each Competitive Loan shall
mature and be due and payable in full on the last day of the Interest
Period applicable thereto. Unless the Borrower shall give notice to
the Administrative Agent otherwise, the Borrower shall be deemed to
have requested a Base Rate Loan borrowing in the amount of the
maturing Competitive Loan, the proceeds of which will be used to repay
such Competitive Loan.
(g) Interest on Competitive Loans. Subject to the provisions of
Section 3.1, Competitive Loans shall bear interest in each case at the
Competitive Bid Rate applicable thereto. Interest on Competitive Loans
shall be payable in arrears on each Interest Payment Date.
(h) Competitive Loan Notes. The Competitive Loans shall be
evidenced by a duly executed promissory note of the Borrower to each
Lender in an original principal amount equal to the Competitive Loan
Maximum Amount and substantially in the form of Schedule 2.2(h).
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2.3 Letter of Credit Subfacility.
(a) Issuance. During the Commitment Period, subject to the terms
and conditions hereof and of the LOC Documents, if any, and such other
terms and conditions which the Issuing Lender may reasonably require,
the Issuing Lender shall issue, and the Lenders shall participate in,
such Letters of Credit as the Borrower may request for its own account
or for the account of a subsidiary or affiliate as provided herein, in
a form reasonably acceptable to the Issuing Lender, for the purposes
hereinafter set forth; provided that (i) the aggregate amount of LOC
Obligations shall not exceed THIRTY-FIVE MILLION DOLLARS ($35,000,000)
at any time (the "LOC Committed Amount"), (ii) with regard to the
Lenders collectively, the aggregate amount of outstanding Committed
Loans plus the aggregate amount of outstanding Competitive Loans shall
not exceed the Revolving Committed Amount, and (iii) with regard to
each Lender individually, such Lender's Commitment Percentage of
Committed Loans shall not exceed such Lender's Revolving Committed
Amount. Letters of Credit issued hereunder shall not have an original
expiry date more than one year from the date of issuance or extension.
If any Letter of Credit issued hereunder shall have an expiry date,
whether as originally issued or by extension, extending beyond the
Termination Date, the Borrower shall, on the Termination Date, either
(i) cause such Letter of Credit to be surrendered to the Issuing
Lender, (ii) provide to the Issuing Lender a back-to-back letter of
credit in respect thereof reasonably satisfactory to the Issuing
Lender or (iii) provide cash collateral to the Issuing Lender in an
amount equal to the maximum amount available to be drawn under such
Letter of Credit. Each Letter of Credit shall comply with the related
LOC Documents. The issuance date of each Letter of Credit shall be a
Business Day.
(b) Notice and Reports. Any request for the issuance of a Letter
of Credit shall be submitted by the Borrower to the Issuing Lender at
least three (3) Business Days prior to the requested date of issuance
(or such shorter period as may be agreed by the Issuing Lender). The
Issuing Lender will provide to the Administrative Agent at least
monthly, and more frequently upon request, a detailed summary report
on its Letters of Credit and the activity thereon, in form and
substance acceptable to the Administrative Agent. In addition, the
Issuing Lender will provide to the Administrative Agent for
dissemination to the Lenders at least quarterly, and more frequently
upon request, a detailed summary report on its Letters of Credit and
the activity thereon, including, among other things, the name of the
party for whose account the Letter of Credit is issued, the
beneficiary, the face amount, and the expiry date. The Issuing Lender
will provide copies of the Letters of Credit to the Administrative
Agent and the Lenders promptly upon request.
(c) Participation. Each Lender, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse a
participation interest from the Issuing Lender in such Letter of
Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such
Letter of Credit (based on the respective Commitment Percentages of
the Lenders) and shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and be obligated to pay
to the Issuing Lender therefor and discharge when due, its pro rata
share of the obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's participation in any
Letter of Credit, to the extent that the Issuing Lender has not been
reimbursed as required hereunder or under any such Letter of Credit,
each such Lender shall pay to the Issuing Lender its pro rata share of
such unreimbursed drawing in same day funds on the day of notification
by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) hereof. The obligation of each Lender to
so reimburse the Issuing Lender shall be absolute and unconditional
and shall not be affected by the occurrence of a Default, an Event of
Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower to
reimburse the Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
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(d) Reimbursement. In the event of any drawing under any Letter
of Credit, the Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall immediately notify the Issuing Lender that
the Borrower intends to otherwise reimburse the Issuing Lender for
such drawing, the Borrower shall be deemed to have requested that the
Lenders make a Revolving Loan in the amount of such drawing as
provided in subsection (e) hereof, the proceeds of which will be used
to satisfy the related reimbursement obligations. The Borrower
promises to reimburse the Issuing Lender on the day of drawing under
any Letter of Credit (either with the proceeds of a Revolving Loan
obtained hereunder or otherwise) in same day funds. If the Borrower
notifies the Issuing Lender that it intends to reimburse the Issuing
Lender other than through a Revolving Loan and thereafter shall fail
to reimburse the Issuing Lender as provided hereinabove, the
unreimbursed amount of such drawing shall bear interest at a per annum
rate equal to the Base Rate plus the sum of (i) the Applicable
Percentage and (ii) two percent (2%). The Borrower's reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of any rights of setoff, counterclaim or
defense to payment the Borrower may claim or have against the Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of the Borrower to receive
consideration or the legality, validity, regularity or
unenforceability of the Letter of Credit, but excluding any defense
based upon the gross negligence or willful misconduct of the Issuing
Lender. The Issuing Lender will promptly notify the other Lenders of
the amount of any unreimbursed drawing and each Lender shall promptly
pay to the Administrative Agent for the account of the Issuing Lender
in Dollars and in immediately available funds, the amount of such
Lender's pro rata share of such unreimbursed drawing. Such payment
shall be made on the day such notice is received by such Lender from
the Issuing Lender if such notice is received at or before 2:00 P.M.
(Atlanta, Georgia time) otherwise such payment shall be made at or
before 12:00 Noon (Atlanta, Georgia time) on the Business Day next
succeeding the day such notice is received. If such Lender does not
pay such amount to the Issuing Lender in full upon such request, such
Lender shall, on demand, pay to the Administrative Agent for the
account of the Issuing Lender interest on the unpaid amount during the
period from the date of such drawing until such Lender pays such
amount to the Issuing Lender in full at a rate per annum equal to, if
paid within two (2) Business Days of the date that such Lender is
required to make payments of such amount pursuant to the preceding
sentence, the Federal Funds Rate and thereafter at a rate equal to the
Base Rate. Each Lender's obligation to make such payment to the
Issuing Lender, and the right of the Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be affected by
any circumstance whatsoever and without regard to the termination of
this Credit Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations of
the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with
the making of each such payment by a Lender to the Issuing Lender,
such Lender shall, automatically and without any further action on the
part of the Issuing Lender or such Lender, acquire a participation in
an amount equal to such payment (excluding the portion of such payment
constituting interest owing to the Issuing Lender) in the related
unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim
against the Borrower with respect thereto.
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(e) Repayment with Revolving Loans. On any day on which the
Borrower shall have requested, or been deemed to have requested, a
Revolving Loan advance to reimburse a drawing under a Letter of
Credit, the Administrative Agent shall give notice to the Lenders that
a Revolving Loan has been requested or deemed requested by the
Borrower to be made in connection with a drawing under a Letter of
Credit, in which case a Revolving Loan advance comprised of Base Rate
Loans (or Eurodollar Loans to the extent the Borrower has complied
with the procedures of Section 2.1(b)(i) with respect thereto) shall
be immediately made to the Borrower by all Lenders (notwithstanding
any termination of the Commitments pursuant to Section 9) pro rata
based on the respective Commitment Percentages of the Lenders
(determined before giving effect to any termination of the Commitments
pursuant to Section 9) and the proceeds thereof shall be paid directly
to the Issuing Lender for application to the respective LOC
Obligations. Each Lender hereby irrevocably agrees to make its pro
rata share of each such Revolving Loan immediately upon any such
request or deemed request in the amount, in the manner and on the date
specified in the preceding sentence notwithstanding (i) the amount of
such borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 5.2 are then satisfied, (iii) whether
a Default or an Event of Default then exists, (iv) failure of any such
request or deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (v) whether the date of such borrowing
is a date on which Revolving Loans are otherwise permitted to be made
hereunder or (vi) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the
event that any Revolving Loan cannot for any reason be made on the
date otherwise required above (including, without limitation, as a
result of the commencement of a bankruptcy or insolvency proceeding
with respect to the Borrower or any guarantor), then each such Lender
hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) from the Issuing Lender such Participation Interests in the
outstanding LOC Obligations as shall be necessary to cause each such
Lender to share in such LOC Obligations ratably (based upon the
respective Commitment Percentages of the Lenders (determined before
giving effect to any termination of the Commitments pursuant to
Section 9)), provided that in the event such payment is not made on
the day of drawing, such Lender shall pay in addition to the Issuing
Lender interest on the amount of its unfunded Participation Interest
at a rate equal to, if paid within two (2) Business Days of the date
of drawing, the Federal Funds Rate, and thereafter at the Base Rate.
(f) Designation of Subsidiaries and Affiliates as Account
Parties. Notwithstanding anything to the contrary set forth in this
Credit Agreement, including without limitation Section 2.3(a) hereof,
a Letter of Credit issued hereunder may contain a statement to the
effect that such Letter of Credit is issued for the account of a
subsidiary or affiliate, provided that notwithstanding such statement,
the Borrower shall be deemed to be the account party for all purposes
of this Credit Agreement for such Letter of Credit and such statement
shall not affect the Borrower's reimbursement obligations hereunder
with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same
as the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have
the Letters of Credit be subject to The Uniform Customs and Practice
for Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (the "UCP"), in which case the UCP
may be incorporated therein and deemed in all respects to be a part
thereof.
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(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section
2.3, the Borrower hereby agrees to protect, indemnify, pay and
save the Issuing Lender harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that the Issuing
Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the
failure of the Issuing Lender to honor a drawing under a Letter
of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government
or Governmental Authority (all such acts or omissions, herein
called "Government Acts").
(ii) As between the Borrower and the Issuing Lender, the
Borrower shall assume all risks of the acts, omissions or misuse
of any Letter of Credit by the beneficiary thereof. The Issuing
Lender shall not be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective
for any reason; (C) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be in
cipher; (D) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing
under a Letter of Credit or of the proceeds thereof; and (E) for
any consequences arising from causes beyond the control of the
Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken
or omitted by the Issuing Lender, under or in connection with any
Letter of Credit or the related certificates, if taken or omitted
in good faith, shall not put such Issuing Lender under any
resulting liability to the Borrower. It is the intention of the
parties that this Credit Agreement shall be construed and applied
to protect and indemnify the Issuing Lender against any and all
risks involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrower (on behalf of
itself and any subsidiary or affiliate for whom a Letter of
Credit is issued), including, without limitation, any and all
Government Acts. The Issuing Lender shall not, in any way, be
liable for any failure by the Issuing Lender or anyone else to
pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the
Issuing Lender.
(iv) Nothing in this subsection (i) is intended to limit the
reimbursement obligations of the Borrower contained in subsection
(d) above. The obligations of the Borrower under this subsection
(i) shall survive the termination of this Credit Agreement. No
act or omissions of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the
Issuing Lender to enforce any right, power or benefit under this
Credit Agreement.
(v) Notwithstanding anything to the contrary contained in
this subsection (i), the Borrower shall have no obligation to
indemnify the Issuing Lender in respect of any liability incurred
by the Issuing Lender (A) arising out of the gross negligence or
willful misconduct of the Issuing Lender, or (B) caused by the
Issuing Lender's failure to pay under any Letter of Credit after
presentation to it of a request strictly complying with the terms
and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree.
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(j) Responsibility of Issuing Lender. It is expressly understood
and agreed that the obligations of the Issuing Lender hereunder to the
Lenders are only those expressly set forth in this Credit Agreement
and that the Issuing Lender shall be entitled to assume that the
conditions precedent set forth in Section 5.2 have been satisfied
unless it shall have acquired actual knowledge that any such condition
precedent has not been satisfied; provided, however, that nothing set
forth in this Section 2.3 shall be deemed to prejudice the right of
any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this
Section 2.3 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document (including any
letter of credit application), this Credit Agreement shall control.
(l) Requirements of Law. The provisions of Section 3.8 shall
apply with equal effect to Letters of Credit and the Borrower will
promptly pay any such additional amounts owing in respect of Letters
of Credit by operation thereof.
2.4 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period, subject to the
terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans (each a "Swingline
Loan" and, collectively, the "Swingline Loans") to the Borrower from time
to time for the purposes hereinafter set forth; provided, however, (i) the
aggregate principal amount of Swingline Loans outstanding at any time shall
not exceed TEN MILLION DOLLARS ($10,000,000) (the "Swingline Committed
Amount"), and (ii) with regard to the Lenders collectively, the aggregate
amount of outstanding Committed Loans plus the aggregate amount of
Competitive Loans shall not exceed the Revolving Committed Amount.
Swingline Loans hereunder shall be made as Base Rate Loans or Quoted Rate
Swingline Loans, as the Borrower may request, and may be repaid or
reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice (or
telephonic notice promptly confirmed in writing) to the Swingline
Lender not later than 11:00 A.M. (Atlanta, Georgia time) on the
Business Day of the requested Swingline Loan advance. Each such notice
shall be irrevocable and shall specify (A) that a Swingline Loan
advance is requested, (B) the date of the requested Swingline Loan
advance (which shall be a Business Day) and (C) the principal amount
of and Interest Period for the Swingline Loan advance requested. Each
Swingline Loan shall have such maturity date as the Swingline Lender
and the Borrower shall agree upon receipt by the Swingline Lender of
any such notice from the Borrower. The Swingline Lender shall initiate
the transfer of funds representing the Swingline Loan advance to the
Borrower by 3:00 P.M. (Atlanta, Georgia time) on the Business Day of
the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in a
minimum principal amount of $1,000,000 and in integral multiples of
$100,000 in excess thereof (or the remaining amount of the Swingline
Committed Amount, if less).
(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the
maturity date agreed to by the Swingline Lender and the Borrower with
respect to such Loan or (B) the Termination Date. The Swingline Lender
may, at any time, in its sole discretion, by written notice to the
Borrower and the Lenders, demand repayment of its Swingline Loans by
way of a Revolving Loan advance, in which case the Borrower shall be
deemed to have requested a Revolving Loan advance comprised solely of
Base Rate Loans in the amount of such Swingline Loans; provided,
however, that any such demand shall be deemed to have been given one
Business Day prior to the Termination Date and on the date of the
occurrence of any Event of Default described in Section 9 and upon
acceleration of the indebtedness hereunder and the exercise of
remedies in accordance with the provisions of Section 9. Each Lender
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hereby irrevocably agrees to make its pro rata share of each such
Revolving Loan in the amount, in the manner and on the date specified
in the preceding sentence notwithstanding (I) the amount of such
borrowing may not comply with the minimum amount for advances of
Revolving Loans otherwise required hereunder, (II) whether any
conditions specified in Section 5.2 are then satisfied, (III) whether
a Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loan to be made by the time
otherwise required hereunder, (V) whether the date of such borrowing
is a date on which Revolving Loans are otherwise permitted to be made
hereunder or (VI) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the
event that any Revolving Loan cannot for any reason be made on the
date otherwise required above (including, without limitation, as a
result of the commencement of a bankruptcy or insolvency proceeding
with respect to the Borrower or any guarantor), then each Lender
hereby agrees that it shall forthwith purchase (as of the date such
borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such Participation Interests in
the outstanding Swingline Loans as shall be necessary to cause each
such Lender to share in such Swingline Loans ratably based upon its
Commitment Percentage of the Revolving Committed Amount (determined
before giving effect to any termination of the Commitments pursuant to
Section 9), provided that (A) all interest payable on the Swingline
Loans shall be for the account of the Swingline Lender until the date
as of which the respective Participation Interest is purchased and (B)
at the time any purchase of Participation Interests pursuant to this
sentence is actually made, the purchasing Lender shall be required to
pay to the Swingline Lender, to the extent not paid to the Swingline
Lender by the Borrower in accordance with the terms of subsection (c)
below, interest on the principal amount of Participation Interests
purchased for each day from and including the day upon which such
borrowing would otherwise have occurred to but excluding the date of
payment for such Participation Interests, at the rate equal to the
Federal Funds Rate.
(c) Interest on Swingline Loans.
Subject to the provisions of Section 3.1, each Swingline Loan shall
bear interest at a per annum rate equal to (i) if such Swingline Loan is a
Base Rate Loan, the Base Rate plus the Applicable Percentage, or (ii) if
such Swingline Loan is a Quoted Rate Swingline Loan, the Quoted Rate.
Interest on Swingline Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein),
unless accelerated sooner pursuant to Section 9.
(d) Swingline Note. The Swingline Loans shall be evidenced by the
Swingline Note.
1.3 Sections 3.3 and 3.4 are amended and restated to read as follows:
3.3 Reductions in Commitments and Prepayments.
(a) Voluntary Reduction of Commitments. The Borrower may from time to
time permanently reduce the Commitments hereunder in whole or in part (in
each such case in a minimum aggregate amount of $10,000,000 and integral
multiples of $1,000,000 in excess thereof) upon three (3) Business Days'
prior written notice to the Administrative Agent.
(b) Voluntary Prepayments. The Borrower shall have the right to prepay
Loans in whole or in part from time to time without premium or penalty;
provided, however, that (i) Competitive Loans and Committed Loans which are
Eurodollar Loans may only be prepaid on three Business Days' prior written
notice to the Agent and any prepayment of such Competitive Loans or
Committed Loans which are Eurodollar Loans will be subject to Section 3.10;
and (ii) each such partial prepayment of Committed Loans shall be in the
minimum principal amount of $2,000,000, in the case of Committed Loans
which are Base Rate Loans and $5,000,000, in the case of Committed Loans
which are Eurodollar Loans and $10,000,000, in the case of Competitive
Loans, and in each case integral multiples of $1,000,000 in excess thereof.
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(c) Mandatory Prepayments. If at any time (i) the sum of the aggregate
principal amount of Committed Loans plus the aggregate principal amount of
Competitive Loans shall exceed the aggregate Revolving Committed Amount,
(ii) the aggregate principal amount of LOC Obligations shall exceed the LOC
Committed Amount, (iii) the aggregate principal amount of Swingline Loans
shall exceed the Swingline Committed Amount, or (iv) the aggregate
principal amount of Competitive Loans shall exceed the Competitive Loan
Maximum Amount, the Borrower shall immediately make payment on the Loans
and/or to a cash collateral account in respect of the LOC Obligations in an
amount sufficient to eliminate the deficiency.
(d) Application. Unless otherwise specified by the Borrower, amounts
prepaid on the Loans shall be applied first to Swingline Loans, then to
Revolving Loans which are Base Rate Loans, then to Revolving Loans which
are Eurodollar Loans in direct order of Interest Period maturities, then to
a cash collateral account to secure LOC Obligations, and then to
Competitive Loans in direct order of Interest Period maturities. In the
case of a mandatory prepayment required in respect of Competitive Loans
pursuant to subsection (c)(iv) hereinabove, the amount required to be
prepaid hereunder shall serve to temporarily reduce the aggregate Revolving
Committed Amount (for purposes of borrowing availability hereunder, but not
for purposes of computation of fees) by the amount of the payment required
until such time as the situation described in subsection (c)(iv) shall no
longer exist.
(e) Notice. The Borrower will provide notice to the Administrative
Agent of any prepayment by 11:00 A.M. (Atlanta, Georgia time) on the day
prior to the date of prepayment. Amounts paid on the Loans under subsection
(b) and (c)(i) hereof may be reborrowed in accordance with the provisions
hereof.
3.4 Fees.
(a) Facility Fee. In consideration of the Commitments by the Lenders
hereunder, the Borrower agrees to pay to the Administrative Agent for the
ratable benefit of the Lenders a facility fee (the "Facility Fee") equal to
the Applicable Percentage per annum on the aggregate Revolving Committed
Amount in effect from time to time for the applicable period. The Facility
Fee shall accrue from the date hereof and shall be payable quarterly in
arrears on the 15th day following the end of each calendar quarter.
(b) Letter of Credit Fees.
(i) Letter of Credit Fee. In consideration of the LOC Commitment
hereunder, the Borrower agrees to pay to the Administrative Agent for
the ratable benefit of the Lenders a fee (the "Letter of Credit Fee")
equal to the Applicable Percentage for Eurodollar Loans per annum on
the average daily maximum amount available to be drawn under Letters
of Credit from the date of issuance to the date of expiration. The
Letter of Credit Fee shall be payable quarterly in arrears on the 15th
day following the last day of each calendar quarter for the
immediately preceding quarter (or portion thereof) beginning with the
first such date to occur after the Amendment Date.
(ii) Issuing Lender Fee. In addition to the Letter of Credit Fee,
the Borrower agrees to pay to the Issuing Lender for its own account
without sharing by the other Lenders a fronting and negotiation fee of
.125% per annum on the average daily maximum amount available to be
drawn under Letters of Credit issued by it from the date of issuance
to the date of expiration (collectively, the "Issuing Lender Fees").
(c) Administrative Agent's Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual administrative fee and
such other fees, if any, referred to in the Administrative Agent's Fee
Letter.
1.4 Section 7.9(b) is amended and restated to read as follows:
(b) Fixed Charge Coverage Ratio. As of the end of the fiscal quarter
ending February 28, 1999, there shall be maintained a Fixed Charge Coverage
Ratio of at least 1.15:1.00; provided, however, that compliance with this
covenant shall not be tested until March 31, 1999 (for the period ending
February 28, 1999); provided, further, that the Company shall not be deemed
to have defaulted in the due performance or observance of this Section
7.9(b) prior to March 31, 1999.
1.5 A new Section 8.7 is added to read as follows:
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8.7 Modifications and Prepayments in respect of Other Funded Debt. The
Company will not, without the prior written consent of the Required
Lenders, (i) amend or modify the terms of repayment of any other Funded
Debt in an aggregate principal amount in excess of $5,000,000 in a manner
adverse to the Lenders (including the shortening of any maturity or average
life to maturity, any requirement for prepayment or other provision
providing for payment of principal prior to stated maturity) or (ii) make
any unscheduled prepayment, redemption, defeasance or acquisition for value
(including by way of deposit of money or securities for the purpose of
payment when due) of any other Funded Debt in an aggregate principal amount
in excess of $5,000,000.
1.6 A new subsection (l) is added to Section 9 to read as follows:
(l) The Borrower shall fail to pay when due (either with the
proceeds of a Revolving Loan obtained hereunder or otherwise) any
reimbursement obligation owing in respect of LOC Obligations;
1.7 At the end of clause (ii) of the first sentence in the
continuation paragraph at the end of Section 9 there shall be inserted the
phrase ", and the Administrative Agent shall have the right, among other
things, to demand immediate cash collateral in the amount of LOC
Obligations then outstanding".
2. This Amendment shall be effective upon satisfaction of the
following conditions:
(a) execution of this Amendment by the Borrower, the Company, the
Administrative Agent and the Required Lenders;
(b) receipt by the Bank of legal opinions of counsel to the
Borrower and the Company relating to this Amendment in form and
substance satisfactory to the Administrative Agent and the Required
Lenders;
(c) receipt by the Administrative Agent for the ratable benefit
of the consenting Lenders of an Amendment Fee of five (5) basis points
on the aggregate amount of Commitments held by each of the Lenders
consenting to this Amendment.
3. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (including Schedules and Exhibits) shall remain in full
force and effect.
4. The Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution and
delivery of this Amendment, including without limitation the reasonable
fees and expenses of Moore & Van Allen, PLLC.
5. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Amendment to produce or
account for more than one such counterpart.
6. This Amendment shall be deemed to be a contract made under, and for
all purposes shall be construed in accordance with the laws of the State of
North Carolina.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed under seal and delivered as of the date
and year first above written.
BORROWER: MACSAVER FINANCIAL SERVICES, INC.,
a Delaware corporation
By:_______________________________
Name:
Title:
COMPANY: HEILIG-MEYERS COMPANY,
a Virginia corporation
By:_______________________________
Name:
Title:
ADMINISTRATIVE
AGENT: WACHOVIA BANK, N.A., as Administrative Agent
for and on behalf of the Lenders
By:_______________________________
Name:
Title:
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CONSENT TO AMENDMENT NO. 6
Wachovia Bank, N.A., as Administrative Agent
191 Peachtree Street, N.E.
29th Floor, MC-3490
Atlanta, Georgia 30303
Attn: Syndication Services
Re:
Credit Agreement dated as of July 18, 1995 (as amended and modified,
the "Credit Agreement") among MacSaver Financial Services, Inc.,
Heilig-Meyers Company, Inc., the Lenders identified therein and
Wachovia Bank of Georgia, N.A. (now known as Wachovia Bank, N.A.), as
Administrative Agent. Terms used but not otherwise defined shall have
the meanings provided in the Credit Agreement.
Amendment No. 6 dated February 24, 1999 (the "Subject Amendment")
relating to the Credit Agreement
Ladies and Gentlemen:
This should serve to confirm our receipt of, and consent to, the
Subject Amendment. We hereby authorize and direct you, as Administrative Agent
for the Lenders, to enter into the Subject Amendment on our behalf in accordance
with the terms of the Credit Agreement upon your receipt of such consent and
direction from the Required Lenders, and agree that the Borrower and the Company
may rely on such authorization.
Sincerely,
-----------------------------
[Name of Lender]
By:__________________________
Name:
Title:
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Schedule 2.4(d)
Form of Swingline Note
FORM OF SWINGLINE NOTE
$10,000,000 February 24, 1999
FOR VALUE RECEIVED, MACSAVER FINANCIAL SERVICES, INC., a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
WACHOVIA BANK, N.A., its successors and permitted assigns (the "Lender"), at the
office of Wachovia Bank, N.A., as Administrative Agent (the "Administrative
Agent"), at 191 Peachtree Street, N.E., 29th Floor, MC-3940, Atlanta, Georgia
30303, Attn: Syndication Services (or at such other place or places as the
holder hereof may designate), at the times set forth in the Credit Agreement
dated as of July 18, 1995 among the Borrower, Heilig-Meyers Company, the
Lenders, the Administrative Agent and NationsBank, N.A., as Documentation Agent
(as it may be amended, modified, extended or restated from time to time, the
"Credit Agreement"; all capitalized terms not otherwise defined herein shall
have the meanings set forth in the Credit Agreement), but in no event later than
July 18, 2000, in Dollars and in immediately available funds, the principal
amount of TEN MILLION DOLLARS ($10,000,000) or, if less than such principal
amount, the aggregate unpaid principal amount of all Swingline Loans made by the
Lender to the Borrower pursuant to the Credit Agreement, and to pay interest
from the date hereof on the unpaid principal amount hereof, in like money, at
said office, on the dates and at the rates selected in accordance with Section
2.4(d) of the Credit Agreement.
Upon the occurrence and during the continuance of an Event of Default
the balance outstanding hereunder shall bear interest as provided in Section 3.1
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement and this Note,
and all other indebtedness of the Borrower to the Lender owing under the Credit
Agreement shall become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on Schedule A attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
MACSAVER FINANCIAL SERVICES, INC.
By _______________________________
Title _______________________________
85