$150,000,000.00
CREDIT AGREEMENT
dated as of
April 20, 1995
among
THE VALSPAR CORPORATION
The Banks Listed Herein
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
and
Chemical Bank,
as Co-Agent
TABLE OF CONTENTS
CREDIT AGREEMENT
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions....................................................................................... 1
SECTION 1.02. Accounting Terms and Determinations............................................................... 15
SECTION 1.03. References........................................................................................ 16
SECTION 1.04. Use of Defined Terms.............................................................................. 16
SECTION 1.05. Terminology....................................................................................... 16
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend............................................................................... 17
SECTION 2.02. Method of Borrowing............................................................................... 18
SECTION 2.03. Money Market Loans................................................................................ 21
SECTION 2.04. Notes............................................................................................. 24
SECTION 2.05. Maturity of Loans................................................................................. 25
SECTION 2.06. Interest Rates.................................................................................... 25
SECTION 2.07. Fees; Calculations................................................................................ 27
SECTION 2.08. Optional Termination or Reduction
of Commitments............................................................................ 28
SECTION 2.09. Termination of Commitments........................................................................ 29
SECTION 2.10. Optional Prepayments.............................................................................. 29
SECTION 2.11. Mandatory Prepayments............................................................................. 29
SECTION 2.12. General Provisions as to Payments................................................................. 29
SECTION 2.13. Computation of Interest and Fees.................................................................. 32
ARTICLE III
CONDITIONS TO CLOSING AND BORROWINGS
SECTION 3.01. Conditions to Closing. .......................................................................... 33
SECTION 3.02. Conditions to All Borrowings...................................................................... 34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power..................................................................... 35
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention.......................................................................... 35
SECTION 4.03. Binding Effect.................................................................................... 36
SECTION 4.04. Financial Information............................................................................. 36
SECTION 4.05. No Litigation..................................................................................... 36
SECTION 4.06. Compliance with ERISA............................................................................. 36
SECTION 4.07. Compliance with Laws; Payment of Taxes............................................................ 36
SECTION 4.08. Subsidiaries...................................................................................... 37
SECTION 4.09. Investment Company Act............................................................................ 37
SECTION 4.10. Public Utility Holding Company Act................................................................ 37
SECTION 4.11. Ownership of Property; Liens...................................................................... 37
SECTION 4.12. No Default........................................................................................ 38
SECTION 4.13. Full Disclosure................................................................................... 38
SECTION 4.14. Environmental Matters............................................................................. 38
SECTION 4.15. Capital Stock..................................................................................... 39
SECTION 4.16. Margin Stock...................................................................................... 39
SECTION 4.17. Insolvency........................................................................................ 39
ARTICLE V
COVENANTS
SECTION 5.01. Information....................................................................................... 39
SECTION 5.02. Inspection of Property, Books and Records......................................................... 42
SECTION 5.03. Leverage Ratio.................................................................................... 42
SECTION 5.04. Minimum Shareholders' Equity...................................................................... 42
SECTION 5.05. Acquisitions...................................................................................... 42
SECTION 5.06. Negative Pledge................................................................................... 42
SECTION 5.07. Maintenance of Existence.......................................................................... 44
SECTION 5.08. Dissolution....................................................................................... 44
SECTION 5.09. Consolidations, Mergers and Sales of Assets....................................................... 44
SECTION 5.10. Use of Proceeds................................................................................... 45
SECTION 5.11. Compliance with Laws; Payment of Taxes............................................................ 45
SECTION 5.12. Insurance......................................................................................... 45
SECTION 5.13. Maintenance of Property........................................................................... 45
SECTION 5.14. Environmental Notices............................................................................. 45
SECTION 5.15. Environmental Matters............................................................................. 45
SECTION 5.16. Environmental Release............................................................................. 46
SECTION 5.17. More Restrictive Agreements....................................................................... 46
SECTION 5.18. Transactions with Affiliates...................................................................... 46
SECTION 5.19. New Wholly Owned Domestic Subsidiaries
to Become Guarantors...................................................................... 47
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default................................................................................. 47
SECTION 6.02. Notice of Default................................................................................. 50
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities................................................................ 50
SECTION 7.02. Reliance by Agent................................................................................. 51
SECTION 7.03. Defaults.......................................................................................... 52
SECTION 7.04. Rights of Agent as a Bank......................................................................... 52
SECTION 7.05. Indemnification................................................................................... 52
SECTION 7.06 CONSEQUENTIAL DAMAGES............................................................................. 53
SECTION 7.07. Payee of Note Treated as Owner.................................................................... 53
SECTION 7.08. Nonreliance on Agent, Co-Agent and
Other Banks............................................................................... 53
SECTION 7.09. Failure to Act.................................................................................... 54
SECTION 7.10. Resignation or Removal of Agent................................................................... 54
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair...................................................................... 55
SECTION 8.02. Illegality........................................................................................ 55
SECTION 8.03. Increased Cost and Reduced Return................................................................. 56
SECTION 8.04. Base Rate Loans Substituted for
Euro-Dollar Loans......................................................................... 57
SECTION 8.05. Compensation...................................................................................... 58
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices........................................................................................... 59
SECTION 9.02. No Waivers........................................................................................ 59
SECTION 9.03. Expenses; Documentary Taxes....................................................................... 59
SECTION 9.04. Indemnification................................................................................... 60
SECTION 9.05 Setoff; Sharing of Setoffs........................................................................ 60
SECTION 9.06. Amendments and Waivers............................................................................ 61
SECTION 9.07. No Margin Stock Collateral........................................................................ 62
SECTION 9.08. Successors and Assigns............................................................................ 62
SECTION 9.09. Confidentiality................................................................................... 65
SECTION 9.10. Representation by Banks........................................................................... 65
SECTION 9.11. Obligations Several............................................................................... 66
SECTION 9.12. Georgia Law....................................................................................... 66
SECTION 9.13. Severability...................................................................................... 66
SECTION 9.14. Interest.......................................................................................... 66
SECTION 9.15. Interpretation.................................................................................... 67
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction..................................................... 67
SECTION 9.17. Counterparts...................................................................................... 68
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Swing Loan Note
EXHIBIT A-3 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 Form of Money Market Quote Request
EXHIBIT I Form of Money Market Quote
EXHIBIT J Form of Guaranty
EXHIBIT K Form of Contribution Agreement
Schedule 4.08 Subsidiaries
Schedule 4.14 Environmental Matters
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of April 20, 1995 among THE VALSPAR
CORPORATION, the BANKS listed on the signature pages hereof, WACHOVIA BANK OF
GEORGIA, N.A., as Agent and CHEMICAL BANK, as Co-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:
"Acquisition" means any acquisition of the stock in or a
significant part of the assets of any Person, other than acquisition of supplies
and raw materials in the ordinary course of business.
"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 1/16th 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 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.
"Affiliate" of any Person means (i) any Person that directly,
or indirectly through one or more intermediaries, controls such Person (a
"Controlling Person"), (ii) any Person which is controlled by or is under common
control with a Controlling Person, or (iii) any Person (other than a Subsidiary)
of which such Person owns, directly or indirectly, 20% or more of the common
stock or equivalent equity interests. As used herein, the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank of Georgia, N.A., a national
banking association organized under the laws of the United States of America, in
its capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of April 3, 1995 between the Borrower and the Agent relating
to the structure of the Loans, and certain fees from time to time payable by the
Borrower to the Agent, together with all amendments and modifications 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.
"Audited Statements" has the meaning set forth in
Section 2.07(b).
"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, and (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 shall be
effective on the date of each such change.
"Base Rate Loan" means a Loan to be made as a Base Rate Loan
pursuant to the applicable Notice of Borrowing, Section 2.02(f), or Article
VIII, as applicable.
"Borrower" means The Valspar Corporation, a Delaware
corporation, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of (i) a
"Syndicated Borrowing", if it comprises Syndicated Loans made to the Borrower at
the same time by the Banks pursuant to Section 2.01(a), (ii) a "Swing Loan
Borrowing", if it comprises Swing Loans made by Wachovia pursuant to Section
2.01(b), or (iii) a "Money Market Borrowing", if it comprises Money Market Loans
made by one or more Banks pursuant to Section 2.03. A Borrowing is a "Base Rate
Borrowing" if such Loans are Base Rate Loans or a "Euro-Dollar Borrowing" if
such Loans are Euro-Dollar Loans.
"Capital Stock" means any capital stock (other than
Redeemable Preferred 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.
"Closing Certificate" has the meaning set forth in
Section 3.01(f).
"Closing Date" means the date on which each of the conditions
set forth in Section 3.01 has been satisfied.
"Co-Agent" means Chemical Bank, a New York banking
corporation, in its capacity as co-agent for the Banks hereunder, and its
successors and permitted assigns in such capacity.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor Federal tax code.
"Commitment" means, with respect to each Bank, the amount set
forth opposite the name of such Bank on the signature pages hereof, as such
amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"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 (without duplication) of the value, as set
forth or reflected on the most recent consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries, prepared in accordance with GAAP, of:
(A) Any surplus resulting from any write-up of
assets subsequent to October 28, 1994, other than a write-up in accordance with
GAAP in connection with an Acquisition, to reflect the purchase price of the
Acquisition;
(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; and
(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.
"Consolidated Total Assets" means, at any time, the total
assets of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis, as set forth or reflected on the most recent consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, prepared in
accordance with GAAP.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit "K" to be executed by
the Borrower and each of the Guarantors.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services (except trade accounts payable arising in the ordinary
course of business), but only if such obligations are, in accordance with GAAP,
recorded on the Borrower's financial books as long term debt (iv) all
obligations of such Person as lessee under capital leases, (v) all obligations
of such Person to reimburse any bank or other Person in respect of amounts
payable under a banker's acceptance, (vi) all Redeemable Preferred Stock of such
Person (in the event such Person is a corporation), (vii) all outstanding
obligations of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, and the net
obligation of such Person under any derivative or interest rate protection
agreement (and for purposes of this Agreement, the net amount which such Person
is obligated to pay under any such agreement upon termination of such agreement
shall be deemed to constitute the principal amount of such net obligation),
(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.
"Debt Rating" means at any time whichever is the lower
of the rating of the Borrower's senior unsecured debt by Moody's Investor
Service or Standard and Poor's, or if only one of them rates the Borrower's
senior unsecured debt, such rating.
"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).
"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.
"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
CERCLA or any comparable state law or any Environmental Requirements.
"Environmental Notices" means written notice from any
Environmental Authority or by any other person or entity, of alleged material
noncompliance with or material liability under any 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 to which the Borrower or any Subsidiary is a party or
to which its property is subject, 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 the environment and applicable to the Borrower, any Subsidiary or
the Properties, including but not limited to any such requirement under CERCLA
or similar state legislation and all federal, state and local laws, ordinances,
regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan to be made as a Euro-Dollar
Loan pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" 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).
"Event of Default" has the meaning set forth in Section
6.01.
"Facility Fee" has the meaning set forth in Section
2.07(a).
"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.
"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.
"Guarantor" or "Guarantors" means any one or more or
all of the following, as the context shall require: (i) Engineered Polymer
Solutions, Inc. a Delaware corporation, and Sunbelt Coatings, Inc., a
Mississippi corporation, which are the only Guarantors as of the Closing Date;
and (ii) any Wholly Owned Domestic Subsidiary which becomes a Guarantor pursuant
to Section 5.19.
"Guaranty" means the Guaranty Agreement of even date herewith
in substantially the form of Exhibit "J" to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the Loans, the
Notes and all other obligations of the Borrower to the Agent and the Banks
hereunder, including without limitation all principal, interest, fees, costs,
and compensation and indemnification amounts.
"Hazardous Materials" includes, without limitation, (a) solid
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 law or regulation, (b) "hazardous substance", "pollutant",
or "contaminant" as defined in CERCLA, or in any applicable state 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:
(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.
"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 Total Funded Debt
to Total Capitalization.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
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 (but not an operating lease) or other title retention agreement relating
to such asset.
"Loan" means a Base Rate Loan, Euro-Dollar Loan, Syndicated
Loan, Swing Loan or Money Market Loan, and "Loans" means Base Rate Loans,
Euro-Dollar Loans, Syndicated Loans, Swing Loans or Money Market Loans, any or
all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the
Contribution Agreement (as to the Borrower), any other document evidencing,
relating to or securing the Loans, and any other document or instrument
delivered from time to time in connection with this Agreement, the Notes or the
Loans, as such documents and instruments may be amended or supplemented from
time to time.
"London Interbank Offered Rate" applicable to any EuroDollar
Loan means for the Interest Period of such 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 Loan offered for a term comparable to
such Interest Period, which rates appear on the Reuters Screen LIBO Page as of
11:00 A.M., London time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period, provided that (i) if more than one such offered rate
appears on the Reuters Screen LIBO Page, the "London Interbank Offered Rate"
will be the arithmetic average (rounded upward, if necessary, to the next higher
1/16th of 1%) of such offered rates; (ii) 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 1/16th
of 1%) of rates quoted by not less than two 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 to leading European banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of such
Loan.
"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, has resulted or is likely to result in a material adverse change in, or
a material adverse effect upon, any of (a) the financial condition, operations,
business, or properties of the Borrower and its Consolidated Subsidiaries taken
as a whole, (b) the rights and remedies of the Agent or the Banks under the Loan
Documents, or the ability of the Borrower to perform its obligations under the
Loan Documents to which it is a party, as applicable, or (c) the legality,
validity or enforceability of any Loan Document.
"Money Market Loan Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit A-3, evidencing the obligation of
the Borrower to repay Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Money Market Loans" means Loans made pursuant to the terms
and conditions set forth in Section 2.03 hereof.
"Money Market Quote" has the meaning specified in
Section 2.03.
"Money Market Quote Request" has the meaning specified
in Section 2.03.
"Money Market Rate" has the meaning specified in
Section 2.03.
"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 cash proceeds
received by the Borrower or a Consolidated Subsidiary in respect of the issuance
of Capital Stock, after deducting therefrom all costs and expenses incurred by
the Borrower or such Consolidated Subsidiary directly in connection with the
issuance of such Capital Stock.
"Notes" means, individually and collectively, as the context
shall require, each of the Syndicated Loan Notes, Swing Loan Notes and Money
Market Loan Notes.
"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"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 2.07(b).
"Permitted Acquisitions" means any Acquisition of the stock in
or assets of a Person in a similar line of business as the Borrower or any
Subsidiary.
"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.
"Quarterly Date" means the last day of each Fiscal
Quarter.
"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 sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Loan made on the day on which an
outstanding Loan is maturing, if and to the extent that the proceeds thereof are
used entirely for the purpose of paying such maturing Loan, excluding any
difference between the amount of such maturing Loan 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 D" means Regulation D 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 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.
"Reported Net Income" means, for any period, the Net Income of
the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis.
"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 (i) Syndicated Loans and (ii) Money Market Loans.
"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.
"Swing Loan" means a Loan made by Wachovia pursuant to Section
2.01(b), which must be a Base Rate Loan.
"Swing Loan Note" means the promissory note of the Borrower,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrower to repay the Swing Loans, together with all amendments, consolidations,
modifications, renewals, and supplements thereto.
"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.
"Termination Date" means April 20, 2000.
"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.
"Total Capitalization" means the sum of (i) Stockholders'
Equity and (ii) Total Funded Debt.
"Total Funded Debt" means all of the following types of Debt
of the Borrower and its Consolidated Subsidiaries (i) obligations for borrowed
money or evidenced by bonds, debentures, notes or other similar instruments,
(ii) obligations as lessee under capital leases, (iii) obligations to reimburse
any bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, but only to the extent such obligations are in excess of an
aggregate amount of $10,000,000, (iv) all Redeemable Preferred Stock of such
Person (in the event such Person is a corporation), and (v) obligations of
Persons other than the Borrower or any Guarantor which are Guaranteed by the
Borrower or any Consolidated Subsidiary.
"Transferee" has the meaning set forth in Section
9.08(d).
"Unaudited Statements" has the meaning set forth in
Section 2.07(b).
"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.
"Utilization Fee" has the meaning set forth in Section
2.06(a).
"Wachovia" means Wachovia Bank of Georgia, N.A., a national
banking association, and its successors.
"Wholly Owned Domestic Subsidiary" means any Wholly Owned
Subsidiary created under the laws of the United States of America or any state
thereof.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared,
in accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within 30 days after the delivery of
such financial statements, in either of which events (A) the Agent and the
Borrower will attempt to agree upon appropriate changes to the financial
covenants for approval by the Required Banks, and (B) if the Required Banks have
not approved any such changes within 30 days after such objection, 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, 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. (a) 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 principal
amount of Syndicated Loans by such Bank shall not exceed the amount of its
Commitment, and (ii) the aggregate amount of all Syndicated Loans, Swing Loans
and Money Market Loans outstanding shall not exceed the aggregate of all of the
Commitments. Each (A) Base Rate Borrowing under this Section 2.01 shall be in an
aggregate principal amount of $2,000,000 or any larger multiple of $1,000,000
and (B) Euro-Dollar Borrowing shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any such Syndicated
Borrowings 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. Any Bank's Money Market Loans shall not reduce such Bank's
Commitment, or be included in calculating its Unused Commitment, for purposes of
future Borrowings under this Section 2.01. Within the foregoing limits, the
Borrower may borrow under this Section 2.01, repay or, to the extent permitted
by Section 2.10, prepay Syndicated Loans and reborrow under this Section 2.01 at
any time before the Termination Date.
(b) Swing Loans. In addition to the foregoing, Wachovia shall from time
to time, upon the request of the Borrower, if the applicable conditions
precedent in Article III have been satisfied, and so long as the aggregate
Unused Commitments are not less than $5,000,000, make Swing Loans to the
Borrower in an aggregate principal amount at any time outstanding not exceeding
$5,000,000; provided that, immediately after such Swing Loan is made, the
aggregate amount of all Syndicated Loans, Swing Loans and Money Market Loans
outstanding shall not exceed the aggregate of all of the Commitments. Each Swing
Loan Borrowing under this Section 2.01(b) shall be in an aggregate principal
amount of $500,000 or any larger multiple of $100,000. Within the foregoing
limits, the Borrower may borrow under this Section 2.01(b), prepay and reborrow
under this Section 2.01(b) at any time before the Termination Date. Swing Loans
shall not be considered a utilization of the Commitment of Wachovia or any other
Bank hereunder. All Swing Loans shall be made as Base Rate Loans. At any time,
upon the request of Wachovia, each Bank other than Wachovia shall, on the third
Domestic Business Day after such request is made, purchase a participating
interest in Swing Loans in an amount equal to its ratable share (based upon its
respective Commitment) of such Swing Loans. On such third Domestic Business Day,
each Bank will immediately transfer to Wachovia, in immediately available funds,
the amount of its participation. Whenever, at any time after Wachovia has
received from any such Bank its participating interest in a Swing Loan, the
Agent receives any payment on account thereof, the Agent will distribute to such
Bank its participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such
Bank's participating interest was outstanding and funded); provided, however,
that in the event that such payment received by the Agent is required to be
returned, such Bank will return to the Agent any portion thereof previously
distributed by the Agent to it. Each Bank's obligation to purchase such
participating interests shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation: (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank or any other
Person may have against Wachovia requesting such purchase or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default or the termination of the Commitments; (iii) any adverse change
in the condition (financial or otherwise) of the Borrower, the Parent or any
other Person; (iv) any breach of this Agreement by the Borrower or any other
Bank; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
SECTION 2.02. Method of Borrowing. (a) The Borrower shall give
the Agent notice (a "Notice of Borrowing"), which shall be substantially in the
form of Exhibit E, on the same day for a Base Rate Borrowing, and at least 3
Euro-Dollar Business Days' prior to each Euro-Dollar Borrowing (all notices
being effective on the day delivered so long as the Agent shall have received
same prior to 12:00 P.M. (noon), Atlanta, Georgia time) specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing
or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether such Borrowing is to be a Swing Loan
Borrowing or a Syndicated Borrowing, and if the latter,
whether the Syndicated Loans comprising such Borrowing are
to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such Borrowing (unless it is a Swing Loan Borrowing) and such
Notice of Borrowing shall not thereafter be revocable by the Borrower.
(c) Not later than 2:00 P.M. (Atlanta, Georgia
time) on the date of each Syndicated Borrowing, each Bank shall (except as
provided in paragraph (d) of this Section) make available its ratable share of
such Syndicated Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in 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 not later than
4:30 P.M. (Atlanta, Georgia time) on the date of any relevant Syndicated
Borrowing. Unless the Agent receives notice from a Bank, at the Agent's address
referred to in or specified pursuant to Section 9.01, (i) in the case of a Base
Rate Borrowing, no later than 2:30 P.M. (Atlanta, Georgia time) on the same day
as such Base Rate Borrowing and (ii) in the case of any other type of Syndicated
Borrowing, no later than 4:00 P.M. (Atlanta, Georgia time) on the Domestic
Business Day before the date of a Syndicated Borrowing stating that such Bank
will not make a Loan in connection with such Syndicated Borrowing, the Agent
shall be entitled to assume that such Bank will make a Loan in connection with
such Syndicated 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
Syndicated Borrowing to the Borrower for the account of such Bank. If the Agent
makes any such Bank's ratable share of a Borrowing available to the Borrower,
the Agent shall promptly notify (which notice may be telephonic) the Borrower of
the identity of the Bank for whom such funds were advanced and the amount of
such advance. The Agent shall promptly notify (which notice may be telephonic)
the Borrower of the details of any notice received from any Bank stating that
any such Bank does not intend to make its ratable share of funds available in
connection with any relevant Borrowing. 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 Syndicated 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 upon prior notice to the Borrower),
together with interest thereon for each day during the period from the date of
such Syndicated 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 any such payment by the Borrower of such
Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank. 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. Unless the Agent determines that
any applicable condition specified in Article III has not been satisfied,
Wachovia will make available to the Borrower at Wachovia's Lending Office the
amount of any such Borrowing which is a Swing Loan Borrowing.
(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, including, without limitation Section 2.01 and
Section 2.03, no Euro-Dollar Borrowing or Money Market 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.
(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 Syndicated 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.
(g) Notwithstanding anything to the contrary
contained herein, including, without limitation Section 2.01 and Section 2.03,
there shall not be more than 8 Euro-Dollar Loans and/or Money Market Loans
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) there may be no more than 8 Euro-Dollar Loans
and/or Money Market Loans outstanding at any given time; and
(ii) the aggregate principal amount of all Money
Market Loans, together with the aggregate principal amount
of all Syndicated Loans and Swing Loans, at any one time outstanding
shall not exceed the aggregate amount of the Commitments of all of the
Banks at such time.
(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 H hereto (a "Money Market
Quote Request") so as to be received no later than 12:00 P.M. (noon) (Atlanta,
Georgia time) at least 2 Euro-Dollar 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
"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 (which Stated Maturity Date may be any date
selected by the Borrower occurring during the period from and including
7 days to and including 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
(iii) the aggregate amount of principal to be received 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 3
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 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 I 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 10:30 A.M. (Atlanta, Georgia time) on the
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 10:15 A.M. (Atlanta, Georgia time) on the Borrowing Date (or
15 minutes prior to the time that the other Banks must have submitted
their respective Money Market Quotes). Subject to Section 6.01, any
Money Market Quote so 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 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 $1,000,000 or a larger
integral multiple of $1,000,000, 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
maximum principal amounts of the Money Market Loan which the quoting
Bank is willing to make for the applicable Interest Period).
(d) The Agent shall as promptly as practicable
after the Money Market Quote is submitted (but in any event not later than 11:30
A.M. (Atlanta, Georgia time)) on the Borrowing Date, notify the Borrower of the
terms (i) of any Money Market Quote submitted by a Bank that is in accordance
with 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 12:00 P.M. (noon) (Atlanta,
Georgia time) on the 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 affected Bank. 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 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 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 1:30 P.M. (Atlanta, Georgia time)
on the Borrowing Date, make the appropriate amount of such Money Market Loan
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 4:30 P.M.
(Atlanta, Georgia time), in an account of such Borrower maintained with
Wachovia.
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. The Swing Loans shall
be evidenced by a single Swing Loan Note payable to the order of Wachovia in the
original principal amount of $5,000,000.
(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 respective principal amounts owing and unpaid on
such Bank's Notes; provided, that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Notes or the ability of any Bank to assign its Notes.
Each Bank is hereby irrevocably authorized by the Borrower so to endorse its
Notes and to attach to and make a part of any Note a continuation of any such
schedule as and when required. In order to verify the Loans outstanding from
time to time, at the request of the Borrower, the Agent shall furnish the
Borrower with its records of transactions under this Agreement, in reasonable
detail.
SECTION 2.05. Maturity of Loans. (a) Each Syndicated
Loan included in any Syndicated 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.
(b) Each Money Market Loan included in any Money
Market Borrowing shall mature, and the principal amount thereof shall be due and
payable upon the Stated Maturity Date therefor.
(c) 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 the Termination Date.
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, 0.00%,
and (y) for any Euro-Dollar Loan, 0.20%; 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 whichever is
better of the Leverage Ratio or the Debt Rating for the quarterly or annual
period ending immediately prior to such Performance Pricing Determination Date.
"Utilization Fee" means a fee which accrues on any day on which the
Loans (including Refunding Loans) outstanding exceed 50% of the aggregate
Commitments, calculated in the manner provided in Section 2.06(a)(ii), on the
aggregate amount of the Euro-Dollar Loans on such day, 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, 0.05%; 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 whichever is better of the Leverage Ratio or the Debt Rating for the
quarterly or annual period ending immediately prior to such Performance Pricing
Determination Date. The Utilization Fee shall be payable for each Interest
Period during which it is applicable 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.
=====================================================================================================================
Leverage <= 0.15 > 0.15 0.30 > 0.45 > 0.50
Ratio and and and
<=0.30 <= 0.45 <= 0.50
Debt Rating A2 or A3 Baa1 Baa2 or Below
better Baa3 Baa3
A or A- BBB+ BBB or Below
better BBB- BBB-
- ---------------------------------------------------------------------------------------------------------------------
Applicable 0.18 0.20 0.26 0.30 0.50
Margin
- ---------------------------------------------------------------------------------------------------------------------
Utilization 0.00 0.05 0.05 0.05 0.05
Fee
=====================================================================================================================
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 date 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.
(b) 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 (i) the Applicable Margin, plus
(ii) the applicable Adjusted London Interbank Offered Rate for such Interest
Period plus (iii) the Utilization Fee, if applicable. 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 applicable
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.
(c) 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 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 applicable 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.
(d) After the occurrence and during the
continuance of an Event of 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, payable
on the last day of the relevant Interest Period therefor, subject to the
provisions clause (iii) at the end of Section 6.01.
SECTION 2.07. Fees; Calculations. (a) The Borrower
shall pay to the Agent for the ratable account of each Bank a facility fee (the
"Facility Fee") on the maximum amount of the aggregate Commitments in effect for
any relevant period, irrespective of usage, calculated in the manner provided in
Section 2.06(a)(ii), 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, 0.10%; 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 whichever is better of the
Leverage Ratio or the Debt Rating for the quarterly or annual period ending
immediately prior to such Performance Pricing Determination Date. The Facility
Fee shall accrue at all times from and including the Closing Date to but
excluding the Termination Date and shall be payable, in arrears, on each
Quarterly Date and on the Termination Date.
==================================================================================================================
Leverage <= 0.15 >0.15 > 0.30 > 0.45 > 0.50
Ratio and and and
<=0.30 <= 0.45 <= 0.50
Debt Rating A2 or A3 Baa1 Baa2 or Below
better Baa3 Baa3
A or A- BBB+ BBB or Below
better BBB- BBB-
- ------------------------------------------------------------------------------------------------------------------
Facility 0.09 0.10 0.14 0.18 0.25
Fee
==================================================================================================================
(b) In determining the amounts to be paid by the
Borrower pursuant to Sections 2.06(b), and 2.07(a), the Borrower and the Banks
shall refer both to the Borrower's Debt Rating from time to time and to its most
recent financial statements delivered to the Banks pursuant to Section 5.01(a)
(together with the Compliance Certificate delivered in connection therewith, the
"Audited Statements") and Section 5.01(b) (together with the Compliance
Certificate delivered in connection therewith, the "Unaudited Statements". For
purposes hereof, "Performance Pricing Determination Date" shall mean (i) each
date that occurs 45 days after the end of each of the first 3 Fiscal Quarters,
and 90 days after the end of the last Fiscal Quarter, of the Borrower and (ii)
each date on which the Debt Rating changes. Each change in interest and fees as
a result of a change in Debt Rating or as a result of a change in Leverage Ratio
as reflected in the Audited Statements or the Unaudited Statements shall be
effective only for Loans (including Refunding Loans) which are made on or after
the relevant Performance Pricing Determination Date. All determinations
hereunder shall be made by the Agent unless the Required Banks shall object to
any such determination. The Borrower shall promptly notify the Agent of any
change in the Debt Rating.
(c) The Borrower shall pay to the Agent, for the
account and sole benefit of the Agent, such fees and other amounts at such times
as set forth in the Agent's Letter Agreement.
SECTION 2.08. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 3 Domestic Business Days' notice to
the Agent (which notice the Agent shall promptly forward to the Banks),
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
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. Termination of Commitments. The
Commitments shall terminate on the Termination Date and any Loans (together with
accrued interest thereon) then outstanding shall be due and payable on such
date.
SECTION 2.10. Optional Prepayments. (a) The Borrower
may, upon at least 1 Domestic Business Day's notice to the Agent (which notice
the Agent shall promptly forward to the Banks) and payment to the Agent, for the
ratable benefit of the Banks, of any amounts required by Section 8.05, prepay
any Base Rate Borrowing (to the extent not precluded by Section 2.10(b)) in
whole or in part at any time, in a minimum amount of $5,000,000, or any larger
multiple of $1,000,000 (except Swing Loans may be prepaid in a minimum amount of
$100,000) 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 Loans of the several Banks (or of Wachovia, in
the case of Swing Loans) included in such relevant Borrowing.
(b) The Borrower may not prepay all or any portion
of the principal amount of any Money Market Loan or Euro-Dollar Loan prior to
the end of the relevant Stated Maturity Date or Interest Period, respectively,
applicable to such 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 shall not thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayments. On each date on
which the Commitments are reduced pursuant to Section 2.08, the Borrower shall
repay or prepay such principal amount of the outstanding Loans (together with
interest accrued thereon), as may be necessary so that after such payment the
aggregate unpaid principal amount of the Loans does not exceed the amount of the
aggregate Commitments as then reduced. All such prepayments shall be applied
first to the Swing Loan Note and then to the Syndicated Loan Notes.
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, without offset, 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 Wachovia each such payment
received by the Agent on account of the Swing Loans, and to each Bank (and,
following the occurrence and during the continuance of an Event of Default, for
application by such Bank against amounts owing to such Bank by the Borrower in
such order as such Bank shall elect) its ratable share of each such payment
received by the Agent for the account of the Banks; provided, that, should the
Agent actually receive any relevant payment from the Borrower prior to 1:00 P.M.
(Atlanta, Georgia time) on the date when due, the Agent shall remit (by wire or
otherwise) to such Bank each such Bank's ratable portion of any payment received
by the Agent prior to 5:00 P.M. (Atlanta, Georgia time).
(b) Whenever any payment of principal of, or
interest on, the Base Rate Loans or Money Market Loans shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of or interest on, the Euro-Dollar Loans shall be due on a day which
is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees
and all other amounts to be made by the Borrower pursuant to this Agreement with
respect to any Loan or fee relating thereto shall be paid without deduction for,
and free from, any tax, imposts, levies, duties, deductions, or withholdings of
any nature now or at anytime hereafter imposed by any governmental authority or
by any taxing authority thereof or therein excluding in the case of each Bank,
taxes imposed on or measured by its net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Bank (as the case may be)
is organized or any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that the
Borrower is required by applicable law to make any such withholding or deduction
of Taxes with respect to any Loan or fee or other amount, the Borrower shall pay
such deduction or withholding to the applicable taxing authority, shall promptly
furnish to any Bank in respect of which such deduction or withholding is made
all receipts and other documents evidencing such payment and shall pay to such
Bank additional amounts as may be necessary in order that the amount received by
such Bank after the required withholding or other payment shall equal the amount
such Bank would have received had no such withholding or other payment been
made. If no withholding or deduction of Taxes are payable in respect to any Loan
or fee relating thereto, the Borrower shall furnish any, at such Bank's request,
a certificate from each applicable taxing authority or an opinion of counsel
acceptable to such, in either case stating that such payments are exempt from or
not subject to withholding or deduction of Taxes. If the Borrower fails to
provide such original or certified copy of a receipt evidencing payment of Taxes
or certificate(s) or opinion of counsel of exemption, 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 of America or a state thereof agrees, as soon as practicable
after request by it of a request by the Borrower to do so, to file all
appropriate forms and take other appropriate action to obtain a certificate or
other appropriate document from the appropriate governmental authority in the
jurisdiction imposing the relevant taxes, establishing that it is entitled to
receive payments of principal and interest under this Agreement and the Notes
without deduction and free from withholding of any Taxes imposed by such
jurisdiction; provided, that, if it is unable, for any reason, to establish such
exemption, or to file such forms and, in any event, during such period of time
as such request for exemption is pending, the Borrower shall nonetheless remain
obligated under the terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes
paid by the Borrower pursuant to this Section 2.12(c), it will pay to the
Borrower the amount of such refund promptly upon receipt thereof; provided,
however, 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 the 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 or Stated Maturity Date, as applicable, from and including the first day
thereof to but excluding the last day thereof. Utilization Fees, Facility Fees
and any other fees payable hereunder from time to time 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).
ARTICLE III
CONDITIONS TO CLOSING AND BORROWINGS
SECTION 3.01. Conditions to Closing. The Closing
Date shall not occur until the Agent has received each of the following (as to
the documents described in paragraphs (a),(d), (e) and (f) 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 a duly executed
counterpart of this Agreement signed by such party;
(b) a duly executed (i) Syndicated Loan Note and (ii)
Money Market Loan Note for the account of each Bank, and (iii) Swing
Loan Note for the account of Wachovia, in each case complying with the
provisions of Section 2.04;
(c) from the Guarantors, a duly executed Guaranty and from
the Borrower and the Guarantors, a duly executed Contribution
Agreement;
(d) an opinion letter (together with any opinions of local
counsel relied on therein) of Lindquist & Vennum, special counsel for
the Borrower and the Guarantors, substantially in the form of Exhibit
B, dated as of the Closing Date, and covering such additional matters
relating to the transactions contemplated hereby as the Agent or any
Bank may reasonably request;
(e) an opinion of Jones, Day, Reavis & Pogue, 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;
(f) a certificate (the "Closing Certificate")
substantially in the form of Exhibit G), dated as of the Closing Date,
signed by a principal financial officer of the Borrower, to the effect
that (i) no Default has occurred and is continuing on the Closing Date,
(ii) the representations and warranties of the Borrower contained in
Article IV are true on and as of the Closing Date and (iii) since
October 28, 1994, there has been no event, act, condition or occurrence
having a Material Adverse Effect;
(g) all documents which the Agent or any Bank may
reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of
this Agreement, the Notes, and the other Loan Documents or the Guaranty
and any other matters relevant hereto, or thereto, all in form and
substance reasonably satisfactory to the Agent, including, without
limitation, a certificate of incumbency of the Borrower and the
Guarantors, signed by the Secretary or an Assistant Secretary of the
Borrower and the Guarantors, certifying as to the names, true
signatures and incumbency of the officer or officers, respectively, of
the Borrower or the Guarantors, as applicable, authorized to execute
and deliver the Loan Documents or the Guaranty and Contribution
Agreement, as applicable, and certified copies of the following items,
for the Borrower and the Guarantors: (i) Certificate/Articles of
Incorporation, (ii) Bylaws, (iii) a certificate of the Secretary of
State of the state of incorporation as to the good standing of each as
a corporation in that state, and (iv) the action taken by the Board of
Directors authorizing the execution, deliery and performance of this
Agreement, the Notes, and the other Loan Documents, or the Guaranty and
Contribution Agreement, as applicable; and
(h) evidence satisfactory to the Agent that the Revolving
Credit Loan Agreement dated as of December 29, 1986, as amended,
between the Borrower and the banks parties thereto, now consisting of
First Bank National Association and Norwest Bank of Minnesota, National
Association, has been terminated and all obligations thereunder have
been paid in full.
SECTION 3.02. Conditions to All Borrowings. The
obligation of each Bank to make a Syndicated Loan on the occasion of each
Syndicated Borrowing, or of Wachovia to make a Swing Loan, other than a
Borrowing which consists solely of a Refunding Loan, is subject to the
satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing;
(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, (i)
the aggregate outstanding principal amount of the Syndicated Loans of
each Bank will not exceed the amount of its Commitment and (iii) the
aggregate amount of all Syndicated Loans, Swing Loans and Money Market
Loans outstanding will not exceed the aggregate of all of the
Commitments.
Each Borrowing (whether it is a Syndicated Borrowing, Swing Loan Borrowing or
Money Market Borrowing) hereunder, other than a Borrowing which consists solely
of a Refunding Loan, 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, except to the extent
they relate to a particular date only.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower and (by execution and delivery of the
Guaranty) each Guarantor (with respect to itself only, as a Subsidiary)
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,
the failure to be so qualified could have or cause a Material Adverse Effect,
and has all corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery and performance by the
Borrower of this Agreement, the Notes and the other Loan Documents, and the
Guaranty and the Contribution Agreement (i) are within the Borrower's and the
Guarantors' respective 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 Subsidiary
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 and the
Guaranty and Contribution Agreement, when executed and delivered in accordance
with this Agreement, will constitute valid and binding obligations of the
Borrower and the Guarantors, respectively, 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. The balance
sheet of the Borrower and the Consolidated Subsidiaries as of October 28, 1994
and the related statements of income, shareholders' equity and cash flows for
the Fiscal Year then ended, reported on by Ernst & Young, copies of which have
been delivered to each of the Banks, fairly present, in conformity with GAAP,
the financial position of the Borrower as of such dates and their results of
operations and cash flows for such period stated.
SECTION 4.05. No Litigation. There is no action,
suit or proceeding pending, or to the knowledge of the Borrower and the
Guarantors 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 or the Guaranty or the Contribution Agreement.
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, and have not incurred any
liability to the PBGC or a Plan under Title IV of ERISA.
(b) 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 compliance in all material respects
with all applicable laws, regulations and similar requirements of governmental
authorities, except for the matters disclosed in Schedule 4.14 or where such
compliance is being contested in good faith through appropriate proceedings,
except where the failure to comply would not have or cause a Material Adverse
Effect. 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 or are being contested in good faith by appropriate
proceedings. 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 October 27, 1989.
SECTION 4.08. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except where the failure to qualify or have
any such license, authorization, consent or approval would not have or cause a
Material Adverse Effect. The Borrower has no Subsidiaries except for those
Subsidiaries listed on Schedule 4.08, or as described in a Compliance
Certificate furnished pursuant to Section 5.01(c), in each case which accurately
sets forth each such Subsidiary's complete name and jurisdiction of
incorporation.
SECTION 4.09. Investment Company Act. Neither the
Borrower nor any of its Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of
the Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.09.
SECTION 4.12. No Default. Neither the Borrower nor
any of its Consolidated Subsidiaries is in default under or with respect to any
agreement, instrument or undertaking to which it is a party or by which it or
any of its property is bound which 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.
SECTION 4.14. Environmental Matters. (a) Except for
the matters disclosed in Schedule 4.14, neither the Borrower nor any Subsidiary
is subject to any Environmental Liability which could have or cause a Material
Adverse Effect and neither the Borrower nor any Subsidiary has been designated
as a potentially responsible party under CERCLA or under any state statute
similar to CERCLA. To the best knowledge of the Borrower, except for the matters
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) Except for the matters disclosed in Schedule
4.14, 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 or otherwise handled, to the best
knowledge of the Borrower, in the ordinary course of business in compliance with
all applicable Environmental Requirements, except where the failure to comply
would not have or cause a Material Adverse Effect.
(c) Except for the matters disclosed in Schedule
4.14, the Borrower, and each of its Subsidiaries and Affiliates, has procured
all Environmental Authorizations necessary for the conduct of its business, and,
to the best knowledge of the Borrower, 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,
except where the failure to comply would not have or cause a Material Adverse
Effect.
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.
All outstanding securities (whether debt or equity) of the Borrower and its
Subsidiaries were registered under the federal and any applicable state
securities laws or were issued in transactions which were exempt from
registration under such laws; provided, that as to any Subsidiary acquired but
not created by the Borrower, the foregoing is made to the best of the Borrower's
knowledge. 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, and all such shares owned by the Borrower are free and clear of
any Lien or adverse claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor
any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of purchasing or carrying any Margin Stock, and no
part of the proceeds of any Loan will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
any Margin Stock, or be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation X.
SECTION 4.17. Insolvency. After giving effect to the
execution and delivery of the Loan Documents and the making of the Loans under
this Agreement, the Borrower will not be "insolvent," within the meaning of such
term as defined in ss. 101 of Title 11 of the United States Code or Section 2 of
the Uniform Fraudulent Transfer Act, or any other applicable state law
pertaining to fraudulent transfers, as each may be amended from time to time, or
be unable to pay its debts generally as such debts become due, or have an
unreasonably small capital to engage in any business or transaction, whether
current or contemplated.
ARTICLE V
COVENANTS
The Borrower and (by execution and delivery of the
Guaranty) each Guarantor (with respect to itself only, as a Subsidiary) 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, to the extent required by GAAP, the figures for
the previous fiscal year, all certified by Ernst & Young or other
independent public accountants of nationally recognized standing, with
such certification to be free of exceptions and qualifications not
reasonably acceptable to the Required Banks; provided, however, that an
exception or qualification (i) with respect to the lack of a prior
Fiscal Year or of the type described in Section 1.02 shall not be
subject to the foregoing, and (ii) shall be deemed acceptable to the
Required Banks if no objection has been made in writing to the Borrower
by or on behalf of the Required Banks within 30 days after delivery of
the relevant financial statements pursuant hereto;
(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 for such Fiscal Quarter
and for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form, to the extent
required by GAAP, 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, the
treasurer or the chief accounting officer of the Borrower, pursuant to
the Compliance Certificate;
(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, the treasurer or the
chief accounting officer of the Borrower (i) containing the
certification required by Section 5.01(b), (ii) listing any new
Subsidiaries not listed on Schedule 4.08 or in any prior Compliance
Certificate, (iii) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.03, 5.04, 5.06 and 5.09(e) on the date of
such financial statements and (iv) 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 under any of Sections 5.03,
5.04, 5.06 and 5.09(e) 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, the treasurer or the chief accounting officer
of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders
of the Borrower generally, copies of all financial statements, reports
and proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and annual,
quarterly or monthly reports which the Borrower shall have filed with
the Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable
event" (as defined in Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has
given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or
(iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy
of such notice; and
(i) from time to time such additional information
regarding the financial position or business of the Borrower and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably
request.
SECTION 5.02. Inspection of Property, Books and
Records. The Borrower will (i) keep, and cause each Subsidiary to keep, proper
books of record and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its business and activities; and (ii) permit, and cause each Subsidiary to
permit, representatives of any Bank at such Bank's expense prior to the
occurrence of a Default and at the Borrower's expense after the occurrence of a
Default to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case at such reasonable times
and as often as may reasonably be desired.
SECTION 5.03. Leverage Ratio. The Leverage Ratio
will not at any time exceed 0.60 to 1.0, calculated at the end of
each Fiscal Quarter.
SECTION 5.04. Minimum Shareholders' Equity.
Shareholders' Equity will at no time be less than $145,000,000 plus the sum of
(i) 50% of the cumulative Reported Net Income of the Borrower and its
Consolidated Subsidiaries during any period after the end of the first Fiscal
Quarter of the 1995 Fiscal Year (taken as one accounting period), calculated
quarterly but excluding from such calculations of Reported Net Income for
purposes of this clause (i), any quarter in which the Reported Net Income of the
Borrower and its Consolidated Subsidiaries is negative, and (ii) 100% of the
cumulative Net Proceeds of Capital Stock received during any period after the
Closing Date, calculated quarterly.
SECTION 5.05. Acquisitions. Neither the Borrower nor
any of its Subsidiaries shall make any Acquisitions, provided, that Permitted
Acquisitions may be made if, after giving effect thereto, no Default or Event of
Default would be caused thereby (giving effect thereto on a pro forma basis as
to financial covenants).
SECTION 5.06. 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 $5,000,000;
(b) any Lien existing on any asset of any corporation at
the time such corporation becomes a Consolidated Subsidiary and not
created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring or constructing such asset, provided that such Lien attaches
to such asset concurrently with or within 18 months after the
acquisition or completion of construction thereof;
(d) any Lien on any asset of any corporation existing at
the time such corporation is merged or consolidated with or into the
Borrower or a Consolidated Subsidiary and not created in contemplation
of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Consolidated Subsidiary and
not created in contemplation of such acquisition;
(f) Liens securing Debt owing by any Subsidiary to the
Borrower;
(g) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any
of the foregoing paragraphs of this Section, provided that (i) such
Debt is not secured by any additional assets, and (ii) the amount of
such Debt secured by any such Lien is not increased;
(h) Liens incidental to the conduct of its business or the
ownership of its assets which (i) do not secure Debt and (ii) do not in
the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business;
(i) any Lien on Margin Stock;
(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 which, together with the amount of Debt secured by Liens
permitted by the foregoing paragraphs (a) through (i), does not exceed
10% of Consolidated Tangible Net Worth; and
(k) any bankers' Lien, common law Lien or other Lien in
favor of the depository bank with respect to any deposit account of the
Borrower or any Subsidiary.
SECTION 5.07. Maintenance of Existence. The Borrower
shall, and shall cause each Subsidiary which is a Guarantor 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 5.08. Dissolution. The Borrower shall not
permit any of its Subsidiaries which are Guarantors to dissolve or liquidate
either in whole or in part or redeem or retire any shares of its own stock,
except through corporate reorganization to the extent permitted by Section 5.09.
SECTION 5.09. 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 or retire all or any
substantial part of its assets (other than sales and transfers of inventory or
equipment in the ordinary course of business in accordance with historical
practices existing prior to the Closing Date) to any other Person, 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, or with and into
the Borrower, where the Borrower is the corporation surviving such merger, (c)
Guarantors may merge with one another, (d) the Borrower may transfer assets to
any Guarantor and any Guarantor may transfer assets to the Borrower or any other
Guarantor, and (e) the foregoing limitation on the sale, lease or other transfer
or retirement of assets shall not prohibit, during any Fiscal Year, a transfer
or retirement of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when combined
with all other assets transferred during such Fiscal Year, after giving effect
to any Acquisitions permitted by Section 5.05 during such Fiscal Year,
constituted more than 10% of Consolidated Total Assets at the time of such
transfer or retirement; provided, however, that in the event the Borrower is
contributing assets to a joint venture for strategic purposes and retaining
significant ownership and control over the joint venture, the Banks agree that
they will not unreasonably withhold consent to a transfer of assets in excess of
the amount permitted by this clause (e).
SECTION 5.10. Use of Proceeds. No portion of the
proceeds of the Loans will be used by the Borrower or any Subsidiary (i)
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (ii) for any purpose in
violation of any applicable law or regulation.
SECTION 5.11. Compliance with Laws; Payment of Taxes.
The Borrower will, and will cause each of its Subsidiaries and each member of
the Controlled Group to, comply with applicable laws (including but not limited
to ERISA), regulations and similar requirements of governmental authorities
(including but not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings,
except where the failure to comply would not have or cause a Material Adverse
Effect. 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.
SECTION 5.12. 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 5.13. Maintenance of Property. The Borrower
shall, and shall cause each Subsidiary to, maintain all of its properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted.
SECTION 5.14. Environmental Notices. Except for the
matters described in Schedule 4.14, the Borrower shall furnish to the Banks and
the Agent prompt written notice of all material Environmental Liabilities,
Environmental Notices and Environmental Judgments and Orders and pending,
threatened or anticipated Environmental Proceedings relating to the Borrower or
to the Properties.
SECTION 5.15. Environmental Matters. The Borrower
and its Subsidiaries will not, and will not knowingly 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, to the best
knowledge of the Borrower, in compliance with all applicable Environmental
Requirements, except where the failure to comply would not have or cause a
Material Adverse Effect.
SECTION 5.16. Environmental Release. The Borrower
agrees that upon the occurrence of an Environmental Release at or on any of the
Properties it will act immediately to investigate the extent of, and to take
appropriate remedial action with respect to such Environmental Release, whether
or not ordered or otherwise directed to do so by any Environmental Authority.
SECTION 5.17. More Restrictive Agreements. Should
the Borrower or any Subsidiary, while this Agreement is in effect or any Note
remains unpaid, issue any Debt for money borrowed in an amount exceeding
$10,000,000 in aggregate amount to any lender or group of lenders acting in
concert with one another, pursuant to a loan agreement, credit agreement, note
purchase agreement, indenture or other similar instrument, which instrument
includes covenants, or defaults or events of default (or any other type of
restriction which would have the practical effect of any of the foregoing,
including, without limitation, any "put" or mandatory prepayment of such debt)
other than those set forth herein or in any of the other Loan Documents, the
Borrower shall promptly so notify the Agent and the Banks and, if the Agent
shall so request by written notice to the Borrower (after a determination has
been made by the Required Banks that any of the above-referenced documents or
instruments contain any provisions, which either individually or in the
aggregate, are more favorable than any of the provisions set forth herein), the
Borrower, the Agent and the Banks shall promptly amend this Agreement to
incorporate some or all of such provisions, in the discretion of the Agent and
the Required Banks, into this Agreement and, to the extent necessary and
reasonably desirable to the Agent and the Required Banks, into any of the other
Loan Documents, all at the election of the Agent and the Required Banks.
SECTION 5.18. Transactions with Affiliates. Neither
the Borrower nor any of its Subsidiaries shall enter into, or be a party to, any
material transaction with any Affiliate of the Borrower or such Subsidiary
(which Affiliate is not the Borrower or a Subsidiary), except as permitted by
law and in the ordinary course of business and pursuant to reasonable terms
which 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. Upon request of the Agent, the terms of any such agreement shall be
disclosed in reasonable detail to the Agent.
SECTION 5.19. New Wholly Owned Domestic Subsidiaries
to Become Guarantors. Each Wholly Owned Domestic Subsidiary which is acquired or
created after the Closing Date shall 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 Wholly Owned
Domestic Subsidiary, and excluding the Credit Agreement and the Notes from
paragraph 2 thereof, and (z) delivering to the Agent documents pertaining to
such Wholly Owned Domestic Subsidiary reasonably requested by the Agent of the
types described in paragraph (g) of Section 3.01.
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 5.02(ii), 5.03, 5.04, 5.06 or 5.09(e);
or
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
covered by paragraph (a) or (b) above) or any Guarantor shall fail to
observe or perform any covenant or agreement in the Guaranty executed
by it, 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 or such Guarantor, as applicable, by the Agent at the
request of any Bank or (ii) the Borrower or such Guarantor, as
applicable, otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or
statement made by the Borrower in Article IV of this Agreement or in
any certificate, financial statement or other document delivered
pursuant to this Agreement, or by any Guarantor in the Guaranty
executed by it, shall prove to have been incorrect or misleading in any
material respect when made (or deemed made); or
(e) the Borrower or any Subsidiary or Guarantor shall fail
to make any payment in respect of Debt outstanding in an aggregate
principal amount in excess of $10,000,000 (other than the Notes) when
due or within any applicable grace period; or
(f) any event or condition shall occur which results in
the acceleration of the maturity of Debt outstanding of the Borrower or
any Subsidiary or Guarantor in an aggregate principal amount in excess
of $10,000,000 (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 Guarantor); 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 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; 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) A judgment or judgments for the payment of money in
excess of the sum of $10,000,000 in the aggregate for the Borrower or
any Subsidiary shall be entered against the Borrower or any Subsidiary
and the Borrower or any Subsidiary shall not discharge the same in
accordance with its terms or procure a stay of execution thereof within
30 days from the date of entry thereof, and within said period of 30
days, or such longer period during which execution of such judgment
shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(k) a federal tax lien shall be filed against the Borrower
or any Subsidiary or Guarantor 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; or
(l) (i) any Person (other than the Borrower) or two or
more Persons acting in concert shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of
the outstanding shares of the voting stock of the Borrower; or (ii) as
of any date a majority of the Board of Directors of the Borrower
consists of individuals who were not any one of the following (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, 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 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) to be, and the Notes
(including the Swing Loan Note) 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 or any Guarantor, without
any notice to the Borrower or any Guarantor or any other act by the Agent or the
Banks, the Commitments shall thereupon terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest thereon at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default. Notwithstanding the foregoing, the Agent shall have available to it
all other remedies at law or equity, and shall exercise any one or all of them
at the request of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall
give notice to the Borrower of any Default under Section 6.01(c) promptly upon
being requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities.
Each Bank hereby irrevocably appoints and authorizes the Agent to act as its
agent hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions satisfactory to the Agent, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or wilful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence 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, facsimile transmission, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants or other experts selected by the Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in accordance with instructions
signed by the Required Banks, and such instructions of the Required Banks in any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks.
SECTION 7.03. Defaults. The Agent shall not be
deemed to have knowledge of the occurrence of a Default or an Event of Default
(other than the nonpayment of principal of or interest on the Loans or fees
payable hereunder) 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 or fees
payable hereunder 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 it, Wachovia in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting as the Agent, and the term "Bank"
or "Banks" shall, unless the context otherwise indicates, include Wachovia in
its individual capacity. The Agent may (without having to account therefor to
any Bank) accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Borrower (and any of its
Affiliates) as if it were not acting as the Agent, and the Agent may accept fees
and other consideration from the Borrower (in addition to any agency fees and
arrangement fees heretofore agreed to between the Borrower and the Agent) for
services in connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally
agrees to indemnify the Agent, to the extent the Agent shall not have been
reimbursed by or on behalf of the Borrower, ratably in accordance with its
Commitment, 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, however 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. NEITHER THE
AGENT NOR THE CO-AGENT SHALL 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, Co-Agent and
Other Banks. Each Bank agrees that it has, independently and without reliance on
the Agent, the Co-Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent, the Co-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. Neither
the Agent nor the Co-Agent shall 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, neither the Agent nor the CoAgent shall 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 or the Co-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 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 reasonably determined by the Agent, will not
adequately and fairly reflect the cost to such Banks of funding
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
Euro-Dollar Loans shall be suspended. After any Bank has provided notice to the
Borrower in connection with this Section 8.01, unless the Borrower notifies the
Agent on or before the date of any such relevant Euro-Dollar Borrowing 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 in any
applicable law, rule or regulation, 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 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 reasonably 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 subject any Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Loans, Notes, or its
obligation to make Loans, or shall change the basis of taxation of
payments to any Bank (or its Lending Office) of the principal of or
interest on its Loans or any other amounts due under this Agreement in
respect of its Loans or its obligation to make Loans (except for
changes in the rate of tax on the overall net income of such Bank or
its Lending Office imposed by the jurisdiction in which such Bank's
principal executive office or Lending Office is located); or
(ii) 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 with respect to any Euro-Dollar Loan 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
(iii) shall impose on any Bank (or its Lending Office) or
on the United States market or the London interbank market any other
condition affecting its Loans, Notes, or its obligation to make Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount reasonably
determined 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 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) or any
Person controlling such Bank 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 or such
controlling Person's capital as a consequence of its obligations hereunder to a
level below that which such Bank or such controlling Person could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's or such controlling Person's policies with respect to capital adequacy)
by an amount reasonably determined by such Bank or such controlling Person to be
material, then from time to time, within 15 days after demand by such Bank or
such controlling Person, the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank or such controlling Person 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 in
reasonable detail the additional amount or amounts to be paid to it hereunder
shall constitute rebuttable presumptive evidence of the amounts to be paid 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: (i) shall
be applicable with respect to any Participant, Assignee or other Transferee, and
any calculations required by such provisions shall be made based upon the
circumstances of such Participant, Assignee or other Transferee; and (ii) shall
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes.
SECTION 8.04. Base Rate Loans Substituted for
Euro-Dollar Loans. If (i) the obligation of any Bank to make or maintain
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 (in all
cases interest and principal on such Loans shall be payable
contemporaneously with the related Euro-Dollar Loans of the other
Banks), and
(b) after each of its 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 8.02 or
otherwise) of a Euro-Dollar Loan or Money Market Loan on a date other than the
last day of an Interest Period for such Loan; or
(b) any failure by the Borrower to borrow a Euro-Dollar
Loan on the date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is
a part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02, or to borrow a Money Market Loan on the date for the Money Market
Borrowing of which such Money Market Loan is a part specified in the applicable
Money Market Loan Quote accepted pursuant to Section 2.03; such compensation to
include, without limitation, an amount equal to the excess, if any, of (x) the
amount of interest which would have accrued on the amount so paid or prepaid or
not prepaid or borrowed for the period from the date of such payment, prepayment
or failure to prepay or borrow to the last day of the then current Interest
Period for such Euro-Dollar Loan or Money Market Loan (or, in the case of a
failure to prepay or borrow, the Interest Period for such Euro-Dollar Loan or
Money Market Loan which would have commenced on the date of such failure to
prepay or borrow) at the applicable rate of interest for such Euro-Dollar Loan
or Money Market 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, or other relevant market
with respect to Money Market Loans.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in writing (including bank
wire, facsimile transmission or similar writing) and shall be given to such
party at its address or facsimile number set forth on the signature pages hereof
or such other address or facsimile 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 facsimile transmission,
when such telecopy is transmitted to the facsimile number specified in this
Section and the appropriate confirmation is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Agent under Article II or Article VIII shall not be effective until
received.
SECTION 9.02. No Waivers. No failure or delay by the
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note or other Loan Document shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The
Borrower shall pay (i) all out-of-pocket expenses of the Agent, including fees
and disbursements of special counsel for the Banks and the Agent, in connection
with 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 (including in-house 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 Co-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, the Co-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, the Co-Agent and each Bank, and each
affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal fees)
incurred in connection with any such investigation or proceeding; but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason of
the gross negligence or wilful misconduct of the Person to be indemnified.
SECTION 9.05 Setoff; Sharing of Setoffs. (a) The
Borrower agrees that the Agent, the Co-Agent and each Bank, and Wachovia as to
the Swing Loan Note, and each Affiliate of the Agent and each Bank and Wachovia
shall have a lien for all indebtedness and obligations owing to them from the
Borrower upon all deposits or deposit accounts, of any kind, or any interest in
any deposits or deposit accounts thereof, now or hereafter pledged, mortgaged,
transferred or assigned to the Agent or any such Bank or Affiliate or otherwise
in the possession or control of the Agent, the Co-Agent or any such Bank or
Wachovia or Affiliate 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, the Co-Agent or any such Bank or Wachovia or Affiliate,
whether now existing or hereafter established hereby authorizing the Agent, the
Co-Agent and each Bank and Wachovia or Affiliate at any time or times during the
existence of an Event of Default 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, the Co-Agent or Wachovia 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, the Co-Agent or any such Bank or Wachovia or Affiliate 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 (directly or through
an Affiliate), by exercising any right of setoff or counterclaim or otherwise,
receive payment of a proportion of the aggregate amount of principal and
interest owing with respect to the Note held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of all
principal and interest owing with respect to the Note held by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank or Affiliate
thereof 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 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 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 or reduce the liability of the
obligor under 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 unless each Bank shall be informed thereof by the Borrower and
shall be afforded an opportunity of considering the same and shall be supplied
by the Borrower with sufficient information to enable it to make an informed
decision with respect thereto. Executed or true and correct copies of any waiver
or consent effected pursuant to the provisions of this Agreement shall be
delivered by the Borrower to each Bank forthwith following the date on which the
same shall have been executed and delivered by the requisite percentage of
Banks. The Borrower will not, directly or indirectly, pay or cause to be paid
any remuneration, whether by way of supplemental or additional interest, fee or
otherwise, to any Bank (in its 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 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 having a term in
excess of 1 year, Note, Commitment or other interest under this Agreement shall,
within 10 Domestic Business Days of such sale, provide the Borrower and the
Agent with written notification stating that such sale has occurred and
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 in the case of its
Syndicated Loans and Commitments and Money Market Loans, a proportionate part of
all its Syndicated Loans and Commitments and Money Market Loans, 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 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 such Assignee.
(d) Subject to the provisions of Section 9.09, the
Borrower authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower which
has been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater
payment under Section 8.03 than the transferor Bank would have been entitled to
receive with respect to the rights 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 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, however
that nothing herein shall prevent any Bank from disclosing such information (i)
to any other Bank, (ii) upon the order of any court or administrative agency,
(iii) upon the request or demand of any regulatory agency or authority having
jurisdiction over such Bank, (iv) which has been publicly disclosed, (v) to the
extent reasonably required in connection with any litigation to which the Agent,
any Bank or their respective Affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of any remedy hereunder,
(vii) to such Bank's legal counsel and independent auditors and (viii) to any
actual or proposed Participant, Assignee or other Transferee of all or part of
its rights hereunder which has agreed in writing to be bound by the provisions
of this Section 9.09; provided, that, should disclosure of any such confidential
information be required by virtue of clause (ii) of the immediately preceding
sentence, any relevant Bank shall, unless legally prohibited from doing so,
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,
however that, subject to Section 9.08, the disposition of the Note or Notes held
by that Bank shall at all times be within its exclusive control.
SECTION 9.11. Obligations Several. The obligations
of each Bank hereunder are several, and no Bank shall be responsible for the
obligations or commitment of any other Bank hereunder. Nothing contained in this
Agreement and no action taken by the Banks pursuant hereto shall be deemed to
constitute the Banks to be a partnership, an association, a joint venture or any
other kind of entity. The amounts payable at any time hereunder to each Bank
shall be a separate and independent debt, and each Bank shall be entitled to
protect and enforce its rights arising out of this Agreement or any other Loan
Document and it shall not be necessary for any other Bank to be joined as an
additional party in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each
Note shall be construed in accordance with and governed by the law of the State
of Georgia.
SECTION 9.13. Severability. In case any one or more
of the provisions contained in this Agreement, the Notes or any of the other
Loan Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of
interest, and all charges, amounts or fees contracted for, charged or collected
pursuant to this Agreement, the Notes or the other Loan Documents and deemed to
be interest under applicable law (collectively, "Interest") exceed the highest
rate of interest allowed by applicable law (the "Maximum Rate"), and in the
event any such payment is inadvertently received by any Bank, then the excess
sum (the "Excess") shall be credited as a payment of principal, unless the
Borrower shall notify such Bank in writing that it elects to have the Excess
returned forthwith. It is the express intent hereof that the Borrower not pay
and the Banks not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
applicable law. The right to accelerate maturity of any of the Loans does not
include the right to accelerate any interest that has not otherwise accrued on
the date of such acceleration, and the Agent and the Banks do not intend to
collect any unearned interest in the event of any such acceleration. All monies
paid to the Agent or the Banks hereunder or under any of the Notes or the other
Loan Documents, whether at maturity or by prepayment, shall be subject to rebate
of unearned interest as and to the extent required by applicable law. By the
execution of this Agreement, the Borrower covenants that (i) the credit or
return of any Excess shall constitute the acceptance by the Borrower of such
Excess, and (ii) the Borrower shall not seek or pursue any other remedy, legal
or equitable, against the Agent or any Bank, based in whole or in part upon
contracting for charging or receiving any Interest in excess of the Maximum
Rate. For the purpose of determining whether or not any Excess has been
contracted for, charged or received by the Agent or any Bank, all interest at
any time contracted for, charged or received from the Borrower in connection
with this Agreement, the Notes or any of the other Loan Documents shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
in equal parts throughout the full term of the 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 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.
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.
THE VALSPAR CORPORATION (SEAL)
By:
Title:
The Valspar Corporation
1101 Third Street South
Minneapolis, Minnesota 55415
Attention: Timothy M. Wesolowski,
Treasurer
Facsimile number: 612-375-7748
Confirmation number: 612-375-7302
COMMITMENTS WACHOVIA BANK OF GEORGIA, N.A.,
as Agent and as a Bank (SEAL)
$30,000,000
By:
Title:
Lending Office
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Manager, Midwest
Territory
Facsimile number: 404-332-6898
Confirmation number: 404-332-6739
CHEMICAL BANK, as Co-Agent
and as a Bank (SEAL)
$24,000,000
By:
Title:
Lending Office
Chemical Bank
270 Park Avenue
New York, New York 10017
Notice Address
Chemical Bank
c/o Jonathan E. Twichell
Chemical Securities, Inc.
10 South LaSalle Street
23rd Floor
Chicago, Illinois 60603
Facsimile: 312-807-4077
Confirmation number: 312-807-4083
BANK OF AMERICA ILLINOIS,
as a Bank (SEAL)
$24,000,000
By:
Title:
Lending Office
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Peggy Hayner
Facsimile number: 312-765-2080
Confirmation number: 312-828-4585
FIRST BANK NATIONAL ASSOCIATION,
as a Bank (SEAL)
$24,000,000
By:
Title:
Lending Office
First Bank National Association
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Attention: Mark R. Olmon
Facsimile number: 612-973-0825
Confirmation number: 612-973-1085
NORWEST BANK MINNESOTA, N.A.,
as a Bank (SEAL)
$24,000,000
By:
Title:
Lending Office
Norwest Bank Minnesota, N.A.
Sixth & Marquette
Minneapolis, Minnesota 55479-0085
Attention: Perry G. Pelos
Facsimile number: 612-667-4145
Confirmation number: 612-667-8609
SOCIETE GENERALE,
as a Bank (SEAL)
$24,000,000
By;
Title:
Lending Office
Societe Generale
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Attention: Eric Siebert
Facsimile number: 312-578-5099
Confirmation number: 312-578-5003
TOTAL COMMITMENTS:
$150,000,000.00
EXHIBIT A-1
SYNDICATED LOAN NOTE
As of April 20, 1995
For value received, THE VALSPAR CORPORATION, a Delaware
corporation (collectively, the "Borrower"), promises to pay to the order of ,
a (the "Bank"), for the account of its Lending Office, the principal sum of
and No/100 Dollars ($ ), 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 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 of Georgia, N.A., 191
Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such other address as
may be specified from time to time pursuant to the Credit Agreement.
All Syndicated 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 Note is one of the Syndicated Loan Notes referred to
in the Credit Agreement dated as of April 20, 1995 among the Borrower, the Banks
listed on the signature pages thereof, Wachovia Bank of Georgia, N.A., as Agent
and Chemical Bank, as Co-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.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
duly executed, under seal, by its duly authorized officer as of the day and year
first above written.
THE VALSPAR CORPORATION SEAL)
By:
Title:
Syndicated Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
EXHIBIT A-2
SWING LOAN NOTE
Atlanta, Georgia
April 20, 1995
For value received, THE VALSPAR CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of WACHOVIA BANK OF
GEORGIA, N.A., a national banking association (the "Bank"), for the account of
its Lending Office, the principal sum of Five Million and No/100 Dollars
($5,000,000), or such lesser amount as shall equal the unpaid principal amount
of each Swing 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 Swing Loan Note at the rate provided for Base Rate Loans on the
dates 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 of Georgia, N.A., 191 Peachtree Street, N.E.,
Atlanta, Georgia 30303-1757, or such other address as may be specified from time
to time pursuant to the Credit Agreement.
All Swing Loans made by the Bank, the respective maturities
thereof, 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 Swing Loan Note is the Swing Loan Note referred to in the
Credit Agreement dated as of even date herewith among the Borrower, the Banks
listed on the signature pages thereof, Wachovia Bank of Georgia, N.A., as Agent
and Chemical Bank, as Co-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.
IN WITNESS WHEREOF, the Borrower has caused this Swing Loan Note
to be duly executed, under seal, by its duly authorized officer as of the day
and year first above written.
THE VALSPAR CORPORATION (SEAL)
By:
Title:
Swing Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of
of Principal Maturity Notation
Date Loan Repaid Date Made By
EXHIBIT A-3
MONEY MARKET LOAN NOTE
As of April 20, 1995
For value received, THE VALSPAR CORPORATION, a Delaware
corporation (the "Borrower"), promises to pay to the order of
, a
(the "Bank"), for the account of its Lending Office, the principal sum of ONE
HUNDRED FIFTY MILLION and No/100 Dollars ($150,000,000.00), 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 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 of
Georgia, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, 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 Note is one of the Money Market Loan Notes referred to in
the Credit Agreement dated as of April 20, 1995 among the Borrower, the Banks
listed on the signature pages thereof, Wachovia Bank of Georgia, N.A., as Agent
and Chemical Bank, as Co-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.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed, under seal, by its duly authorized officer as of the day and year
first above written.
THE VALSPAR CORPORATION (SEAL)
By:
Title:
Money Market Loan Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of Stated
Interest of Principal Maturity Notation
Date Rate Loan Repaid Date Made By